Courts and Criminal Matters Bill

Part 4 actually has quite a significant number of important issues and questions. I hope the Minister will take a call and answer some of the questions, or I will be required to move further amendments in order to try to get some clarity on this matter. I will just look at what we are particularly wanting him to talk about in respect of this part. Part 4 proposes changes to the Immigration Act to allow for improved information-sharing on the part of the Immigration Service—specifically, in its role at our nation’s airports and departure points—providing information to the courts on a number of areas.

I want the Minister to answer a number of questions. First of all, his Supplementary Order Paper removes the requirement for the Department of Labour to advise anybody’s aliases that might have been used in its immigration files. Why would the Government not allow the fines enforcers to know the various aliases that people may be using? There are people who get fined under various aliases. Why would one remove that extra information from the bill?

💬 Hon Member: That’s not right.

Yes, if the member looks at the Supplementary Order Paper, he will see that under clause 15 the Minister is removing the requirement to provide any known aliases—[Interruption] Exactly. It is a question of whether that person is known as Anthony or Tony, or Harold or Harry, or something like that. That is the sort of information that could be provided.

Also, and I want the Minister to take a call on this, what about the new provisions that he has brought in under the Supplementary Order Paper to provide for the commercial airline carriers to receive confidential fines information? This bill did not go to a select committee. I presume it has gone past the Privacy Commissioner—the officials are nodding furiously. Can the Minister explain to us why we are providing this right for the airlines to get specified fines defaulter information? Where is the protection to stop the airlines from passing that information on to anybody else? There is no protection.

I have moved an amendment that would expressly make it an offence for any airline, or any of its staff, to pass on the specified debtor information. That should be an offence. That is information that would normally be within the wider Crown sector going out to the airlines—and sensibly too, because that is how the system will work. But where is the protection to make sure that that information does not go any further, and is not used for any other purpose at all? I would like the Minister to take some time to explain that to us.

I have also moved an additional amendment. I am concerned that if it becomes too difficult for the Government to implement this policy with the $5,000 cut-off and an arrest warrant—117 people a year—it may move to lift that threshold. Because the bill, as introduced, stated $10,000. Opposition parties got it down to $5,000, plus the power for an Order in Council to drop it further, but the wording does not say that. It allows the executive to say that that $5,000 threshold could go up.

Just remember, John Tamihere said that the Minister of Finance could pull the wool over parties by moving one word here or one word there. So I ask United Future to support my amendment that states: “The Governor-General, by Order in Council, cannot change the amount other than by Order in Council of a lesser amount.” Because, remember, the Government was telling us: “Oh, once we’ve got it all organised and working efficiently, we’ll drop it down.” Remember? That is the line that the Government was running. But, look, one cannot trust these people. John Tamihere told us that one cannot trust them. We need to put a word in there that says that one cannot lower the level.

💬 Hon Rick Barker: You had me up till that point, but I’m going in the opposite direction now.

Well, that is my worry. I do not want these things moved in the opposite direction. I want them moved down. I saw the Minister of Finance cringe when Mr Ardern made the point: “Well, why does it have to be $5,000; why can’t it be lower?”.

On the basis of the member’s amendment about a lesser amount, I have given an undertaking to accept his amendment. There is no problem about that. We are going to be absolutely straight.

On the other issue about information that goes to the airlines, I come back to the point I made earlier. If we want the situation whereby the bags of a “person of interest” are not loaded with everybody else’s bags, and therefore we do not need to hold the plane up and everybody else, we want the airline to be able to say: “This person is of interest.” No other information will be given to the airline.

💬 Brian Connell: How does that work?

The airline will be told only that the person is of interest to us. It will not be given any other information or background. We can tell the airline to make sure those bags are put aside. The airline will not know any of the details.

💬 Hon Tony Ryall: What about other activities?

The airline can have a lot of other things, but that was the issue in terms of aliases. My advice is that we want to try to avoid, as best we can, mistaken identity. If I, Rick Barker, was heading off to Australia to attend the funeral of someone who was very close, and someone else had a fine owing, and I thought: “Well, my name is actually Richard John Barker”, but the system had the alias “Rick Barker” and I was told: “This is your fine.”, and I was held at the airport and missed the funeral, we would all feel terrible about that mistake. We have to make sure that we do this at the highest level. The officials made the point that aliases in the system make it more probable that a mistake will occur and the wrong person will be picked out. So we are trying to do this thing properly. If it is my fine, I will have to pay it before I get on the plane.

I feel compelled to make a contribution to this part of the debate—in particular, this part of the Courts and Criminal Matters Bill. I want to record the Minister for Courts’ comments again in Hansard, and thank him for indicating support for what, no doubt from this point on, will become known as the “Ryall amendment”. I think the Minister, to his credit, given the late hours that the Committee has been working on various bills, has seen the sense of the amendment tabled by Mr Ryall, and the National Party thanks the Government for its support on that amendment.

There does, however, remain the question of the deletion in Part 4 of aliases—in particular, their deletion from the information relating to a person who is in default that may be held. The Minister’s statement—and I will paraphrase for the Committee’s sake—was that the officials were against aliases being included because they were concerned that more people would be picked up who were not people of the kind that they wanted to pick up, or words to that effect. The Minister nods and agrees that that is a fair interpretation of his remarks in his last contribution. Well, actually this bill and the seriousness of the bill are not the officials’ concern. They are there to advise the Minister. I would be interested in knowing why the Minister is prepared to have aliases removed from the information that may be held. The Minister gave the example of his travelling overseas, and being known by a name other than the Hon Rick Barker—Richard, I believe the Minister said, was his given name.

But is not the point that that provision, which errs on the side of caution in terms of people who may go by more than one name, is completely inconsistent with the provision that follows, relating to Crown liability? Under that provision—I am talking about new section 141AF(2) inserted by clause 15—the Crown is “not liable to any person … for any loss or damage caused as a result of, or in connection with, the actions described’’ above, which is liability for fines, if the employee of the Crown “has not acted in good faith or has been grossly negligent.” Would not the easy way to deal with the aliases question, and the question contained in that part of the clause, simply be to weaken the second provision so that there is liability if the official or authorised employee was simply wrong? If we include aliases, and if the official or employee gets it wrong, then the Crown should have liability in that instance.

This bill is trying to have a dollar each way, by saying on the one hand we do not want to be too tough, and on the other hand we will make the threshold that a person owing fines has to meet far higher than an ordinary criminal threshold. In other words, there is liability on behalf of the Crown only if the employee of the Crown has not acted in good faith, or has been grossly negligent. Well, what if there was liability if the employee was just wrong? Surely, that would be enough of a protection for the person who may, or may not, use an alias, and it would enable the Government to reinsert aliases, and information relating to aliases, back into the bill. At present, the Minister is trying to have his cake and eat it too. It would be a far simpler drafting exercise for the Minister simply to include aliases and, while he is at it, drop the threshold of liability for the Crown, so that if officials get it wrong, the person concerned can bring an action against the Crown. That would make far more sense. The Minister should include aliases and drop the standard.

I shall carry on from that member on the issue about aliases. There are two issues on Supplementary Order Paper 370 in the name of the Hon Rick Barker that relate to Part 4, and they are both important issues that should have gone to the Law and Order Committee so that, for a start, the airlines could make submissions on them. Why are we making the airlines responsible for helping us to catch criminals? They may be pretty relaxed about that, or they may not be. But they should at least have had the opportunity to have their say on it. It is extraordinary that it has suddenly come to the Minister’s notice at this very late stage, when we are putting this legislation through in urgency, that those two very important things suddenly need to be included, or excluded.

Before I move on from the subject of the airlines, we wonder why our airfares go up and up. It is because of all the compliance things that are put on to the airlines. The Minister says that it is just a simple thing, like noting that if certain bags belong to a person of interest, the airlines need to keep them out. But that is never a simple thing for a business. Anything that adds to the handling or the time businesses spend adds to their compliance costs, and affects their bottom line. Of course, their prices go up. In order to try to attract passengers when they advertise, they break their fares down into all the little bits, and then they are taken to court by the Commerce Commission because they are breaking their prices down into little bits and add-ons. The commission says we are all stupid, we cannot add them up, we do not know the full cost, and we need to be protected from ourselves. So that is the first issue that this provision relates to.

I am pleased to support the “Ryall amendment”, which will go in. That is a very good idea. It is extraordinary that it was overlooked before—that it was not a higher amount.

The other issue relates to aliases. If one looks at the way that people behave, we see they always behave according to incentives. People’s behaviour is guided by incentives. For instance, when they have one child and are on the domestic purposes benefit, if they know they will get more money and a bigger house by having two or three more children, then they will have two or three more children while they are on the domestic purposes benefit for that reason. It is just human nature. We had the classic example of supplementary minimum prices, which were taken away in 1984-85. It was social welfare for farmers—and my father was one of those farmers, and I probably benefited from them. But in the long run, it was better for them to be taken away. Farmers were paid more money according to how many sheep they ran, if one wants to put it simply, and the sheep were ground down for fertiliser. That is how bad supplementary minimum prices were for the country. Some of our erosion problems are a direct result of those incentives. So incentives affect people in short-term and long-term ways.

Mr Chairman is probably wondering how that relates to Part 4, and I am about to get back to that point. If we are to remove the reference to aliases here—and the only reason we have had from the Minister to remove it is that his officials have advised him we should remove it, because of the issue of mistaken identity for the Hon Richard Barker when he goes overseas—what will people do? They will use aliases. That is the first thing they will do; it is the logical thing to do. People will just go out there and use an alias. It is a very easy thing to do, for instance, if one has a car, and the fines are traffic fines. It is a very easy thing to have aliases, so that is what will happen. That will send a signal out there straightaway. Not only does someone have to owe $5,000 and have a warrant out for his or her arrest, but all that person has to do in order to escape these provisions after that is to rack up fines under a whole lot of different aliases. Then one will not come under this legislation, according to Part 4 of this bill. The Minister needs to give a better explanation than he has given for removing the reference to aliases.

I am really delighted to get a call on Part 4. I tried so earnestly in Part 2. I notice that a lot of clauses in the bill are very similar, except instead of the issue being between the Customs Service and the Ministry of Justice, when we get to Part 4 it is between the Department of Labour and the ministry, under new section 141AE inserted by clause 15.

Deborah Coddington has probably raised one of the most interesting issues here, which is why the Minister for Courts would have put into the original bill section 141AE(4)(b), which refers to any aliases. Members should remember that this is the information that is to be made available to the authorities to identify a person who is a fines defaulter. Why would the Minister have put it in the legislation from the outset? Now we have some stupid Supplementary Order Paper amendment stating we need to take it out.

If the Minister knows one thing, and if members know one thing, it is that for just about everybody we hear announced on the radio as having done some crooked deal, the announcer will say “so-and-so, also known as”. We will often hear three or four names. I think it is a cracker. I do not know how people keep track of the different names they are “also known as”. That is what a lot of the offending criminal world is about. [Interruption] We know how people get aliases—like the David Benson-Pope “Tennis Ball” alias, which just flies off the tongue, or “David the Enforcer”. There is a very godfather-type thing about him. We know that those aliases float around with people all the time.

Here is the question: why is this information going to be shared? The answer is so that we can identify the person. Therefore, would it not be logical to share every piece of information that could be provided to allow the person to be identified? Why say that we will share the information, but we will restrict it to people’s full Christian name and surname, when a lot of the thugs and the crooks out there do not even remember their original Christian name and surname? Those names are often long forgotten, and they go under all sorts of names like “Louie the Tough Guy”. This situation is just bizarre. I did not actually pick it up until the Hon Tony Ryall made it clear, because the way it is—

💬 Hon David Cunliffe: “Maurice the Regulator”?

Yes, “Maurice the Regulator” has a good tone to it. It never happened, but one day it might. “Maurice the Regulator” is a great name. All I want to say to the Minister is that if we are talking about information sharing, why is the bill so specific about these fields? That is the worst thing about legislation; we go down to the level of the actual data fields that can be passed over, and we say that probably the most useful field for identifying some of the criminal fraternity is not allowed to be passed over. So the name “Frederick Horace Crichton” can be passed over, even though Frederick does not know that that is his name, because although it was given to him in the hospital when he was born it has never been used since. It is just bizarre.

💬 Hon David Cunliffe: Is this the best filibuster the member can come up with?

Actually, I can tell Mr Cunliffe—I think that is his name—that there have been better filibusters and there are more to come.

But I want to get on to another point in the bill and that is to do with liability of the Crown. New section 141AF in clause 15 is headed: “No Crown liability to third parties for fines enforcement action”. This is where some obligation goes on the Government to act a little bit responsibly and in a timely manner. One of the things that has happened to airlines in recent years is that they rely on the very last handful of passengers loaded on to a plane for their profit. Anyone who has read the Dominion Post today will see that Air New Zealand says that even with full aeroplanes crossing the Tasman it is losing money. It is such a cut-throat, competitive business. Airlines go through the lists of people who are booked and do some culling right up until the last day. They say: “Well, that one’s a no-show, and that one won’t be there, so go back to the travel agent.”, because an airline seat is the most perishable commodity in the world. The moment the airliner door is closed, the seat has no value at all.

What the Government is saying here is that it might, through its agencies, pull out of a flight right at the last moment a passenger who has paid $12,000, $15,000, or $16,000 for a first-class airfare to London. That leaves an empty seat, and the airline is unable to offer it to anybody on a wait list or a go-show. I want the Minister to explain what he will do about that liability.

I move, That the question be now put.

Thank you for the call on Part 4 of this exhilarating debate. I am really enjoying being here this afternoon and digging in for a long session. I look forward to getting back here tomorrow morning and engaging in battle with my Labour colleagues. It is the type of invigorating stuff that makes one want to be a member of Parliament. I cannot wait for the election so that we can get involved again.

There were two or three components on the Supplementary Order Paper in the name of the Minister in the chair, the Hon Rick Barker, that, like my colleague Tony Ryall, disturb me. One of the questions he asked—and it is one that I think we need to examine in more detail—is why is it that airlines are allowed to get prior information about persons of interest, when this issue was brought to the attention of the Law and Order Committee and rejected. I have here, and I will share it with the Committee—

💬 Hon David Cunliffe: Bring back Maurice Williamson.

If he wants to take another call, he will. We will be here until morning, so the Minister should just hold his horses.

💬 Simon Power: He’s in no hurry to go back to Auckland.

Absolutely not. Let us just carry on. The Board of Airline Representatives of New Zealand presented to the select committee and said this: “We ask the committee in consideration of the bill to seek from the departments an assurance that the need for early advice to the affected airline with respect to travellers of interest is understood and will be implemented as part of the procedures that are put in place.” I draw that to the Committee’s attention because the select committee rejected that suggestion. We were not satisfied about how that information might be used. This is a very serious issue. The select committee rejected it because we were not satisfied as to how that information might be used by the airline—that is, for commercial reasons, the breaking of privacy laws—but the Minister, thumbing his nose at the select committee recommendation, has now moved it on a Supplementary Order Paper. That is one issue.

The second issue of note is one that my colleague Maurice Williamson was speaking about, and that is the way in which people can be identified—a person’s full name, aliases, etc. The one thing that is missing from the list is an IRD number. If there was concern as to who a person using an alias was, then if the IRD number was there all one would have to do is simply cross-reference. So just by pushing a button on a computer it could be instantly known whether it was the right person. Removing aliases and not having an IRD number in place is just setting up the legislation to fail from the outset. That is a significant flaw that I would like the Minister in the chair to address. My specific question to him is: why are IRD numbers not included as an identifier?

Finally, I want to address the issue of no Crown liability for third parties for fines enforcement action. I can understand that, but what happens if the Crown acts in such a way that it is responsible for a monumental mistake? What is an analogy? It could be making a huge mistake, like getting Kyoto wrong. Let us say that it was wrong by $1.3 billion. Would the Crown have any responsibility for that? Who was the Minister responsible?

💬 Hon Maurice Williamson: Oh, probably Minister Hodgson.

It would not be him now. If he was the Minister who made that mistake, he would not still be in that position would he? [Interruption] It went well, did it not? Someone must take responsibility for that.

The point is if there is an error of that magnitude, who will take responsibility for it? Surely the Crown has to take responsibility if it makes a mistake of that magnitude. The next point is that if the Crown is not taking responsibility and there is a whole lot of aggrieved passengers floating around, will that responsibility be driven back to the airlines? Will they be asked to take responsibility? Is the Crown doing what it does best—if we use the analogy of Kyoto again—or will the airlines have to wear that liability?

I move, That the question be now put.