Subordinate Legislation (Confirmation and Validation) Bill

I move, That the Subordinate Legislation (Confirmation and Validation) Bill be now read a third time. During a reasonably lengthy Committee stage, we were treated to the full array of legal talent on the National Party benches, with Mr Richard Worth acting as senior counsel and Mr Lindsay Tisch acting as junior counsel. A number of searching and probing questions were asked, such as why the Subordinate Legislation (Confirmation and Validation) Bill was called the Subordinate Legislation (Confirmation and Validation) Bill. The answer to that question is that, after considerable effort, and despite calls in the past by the National Party for a royal commission on this matter to investigate the title, we decided that as it confirms and validates subordinate legislation we might as well give in and call it the Subordinate Legislation (Confirmation and Validation) Bill—prosaic, I admit, though that title is.

💬 Lindsay Tisch: It was a great question.

It was a great question. We then had a number of detailed questions. But what I want to dwell on for a few minutes, as this is probably my last speech before Christmas, or maybe the second last—

💬 Hon Members: Horray!

Members might not cheer so much when they hear the last one.

Mr Tisch quite rightly pointed out the importance of the fact that every year we have an increase in New Zealand superannuation, which this bill validates. I must say I agree very firmly with that. Every year under this Government we have had an increase in the rate of New Zealand superannuation, including in 2000, the first year. This increase was well above the rate of inflation. But I do have to remind Mr Tisch, very gently—I realise he is a young, junior member of this House—that three times under a 9-year National Government there was no annual increase in the rate of New Zealand superannuation. There was no validation of an increase in the rate of New Zealand superannuation, because it was not increased. In 1991, 1992, and 1999 the National Party did not increase the rate of New Zealand superannuation. It was frozen for 3 years out of the 9 years National was in office.

So I welcome this conversion experience on the part of Mr Tisch to the virtues of the annual indexation of New Zealand superannuation. I trust he will stand tall within his caucus when his colleagues start arguing that, in order to pay for tax cuts, they have to freeze the rate of New Zealand superannuation, because that is exactly what happened in 1999. National legislated for a tax cut and, in the same year, for a cut in the level of New Zealand superannuation. The two went together.

But we will not revisit those arguments at this point. It is cruel and unkind to go through them yet again. We shall save them for 2008. The one thing about them is that they do not go stale in the cupboard. They are always fresh when they come out again during election years. So I thank Mr Tisch for reminding me of that fact. He gave me as the architect of the superannuation fund something to talk about that is close to my heart: the current wage banding for New Zealand superannuation, and, from 2007 onwards, the KiwiSaver scheme.

We are in the process of passing the Subordinate Legislation (Confirmation and Validation) Bill, which National supports. I would like to record my appreciation, on behalf of the National Party, for the very kind comments made to some of its members in the Committee stage by Mr Woolerton. I also express what I am sure will be the position that, in the unlikely event that the two members nominated for special mention should ever seek to leave this Parliament, they will be able to use the comments that he made as a valuable testimonial for their future gainful employment.

In accordance with the parliamentary process, this legislation was referred to the Regulations Review Committee, and the committee had the task of judging whether it was appropriate that this legislation be recommended to the House for further passage. To do that, it was necessary for the committee to seek the views of the relevant Government departments as to whether validation and confirmation of a number of orders was appropriate. It is worthy of note that three particular orders made in the Subordinate Legislation (Confirmation and Validation) Bill are both validated and confirmed. The balance of the orders are simply confirmed.

But this validation is not the cure-all that it might seem to be, on its face. Clause 4 provides that the validations to prevent expiry do not cure invalidity. The actual wording of the provision is: “In the light of their purpose, the validations effected by sections 13, 15, and 16 do not—(a) express an intention to give legislative force to the provisions of the enactments validated; or (b) apply to any reason for invalidating any of those enactments; or (c) override any presumption that would otherwise apply to any of those enactments.” That particular clause is densely written and turgidly worded, but its effect is quite clear. Its effect is to preserve intact the ability of those who wish to challenge the validity of these orders to do so on administrative law grounds.

In Part 2 the parliamentary counsel has identified a number of orders, and the legislation under which they were enacted, that are singled out for confirmation and validation. It is perhaps a somewhat unusual process, in that generally legislation endures until it is repealed, but in this bill we have an example where unless the legislation is confirmed, it will lapse. So it would be the case that the Biosecurity (Gypsy Moth Levy) Order and the Biosecurity (Varroa (South Island) Beekeeper Levy) Order would have no continued legal force, but for the passage of this bill.

In the course of the debate I have made a number of points, and I will highlight two of them. The first is to refer briefly to the inquiry by the Regulations Review Committee, which made a recommendation to try to draw into line with Australian practice and authority this tricky issue of what a regulation is. Because although these documents that we are confirming and validating are in most cases said not to be regulations, they in fact are. It is a constant search by the Regulations Review Committee, particularly in the exercise of its complaints jurisdiction, to determine whether a particular subordinate legislation is or is not a regulation.

The second point I have made is that at least in one case, relating to the varroa levy, there are these curious rights of conscientious objection. We generally think of rights of conscientious objection being exercised in a context that is substantially related to someone not being prepared to serve in war—or, in any event, as a defence against compulsory conscription, which is no longer in place in this country. It seems to me most anomalous that there should be preserved in this legislation this conscientious objection provision, which is contained in clause 18. I am aware it is in other legislation, and the Minister responsible for this bill has suggested that the Commodity Levies Act has similar provisions. But why is there a conscientious objection right in respect of the Biosecurity (Varroa (South Island) Beekeeper Levy) Order 2005, yet there is not in respect of broadly comparable legislation related to the Biosecurity (Gypsy Moth) Levy) Order 2004?

It is right to say that those two orders are made under different sections of the Biosecurity Act—in the one case under section 137 and in the other under section 90. It is also right to say that one such statutory provision is concerned with the funding of services and another is concerned with the funding of strategies, but those points in themselves, I would contend, are not a sufficient reason for the inclusion of rights of conscientious objection in respect of one order and no such rights of conscientious objection in another.

I would like to say something very briefly about the varroa bee mite, picking up on wise and careful words used by Mr Tisch in the course of the Committee stage. Indeed, I had not appreciated until I stood in the Chamber today just what a fund of knowledge on this important legislation Mr Tisch had within his breast. It seems to be the case in varroa bee mite issues that, in the absence of treatment, an infested bee colony typically dies when the varroa population reaches a certain level. From the work that Mr Tisch has shown me, this threshold level appears to differ between locations and seasons. So we are looking at a range of issues in the context of varroa, such as the cumulative effects of decreased weight of adult bees, decreased lifespan of adult bees, virus infection issues relating to transmission by varroa feeding on pupae, and, as Mr Tisch has also noted in discussion with me, deformed wings and abdomens probably resulting from virus infestations.

But my having looked at those sorts of aspects, the reality is that pollination of many significant crop species in the horticulture, arable, and pastoral sectors is dependent on honey bees, and a reduction in pollination of horticultural and arable crops could result in decreases overall in crop quality. So it is clearly appropriate, as we look at that particular order, that there be provisions of this type where funding can be extracted from relevant groupings to deal with what is clearly a threat to agribusiness in this country.

Finally, I commend this bill to the House and record, on behalf of the Regulations Review Committee, the work of its members in ensuring this bill come back to the House in such fine form.

Bill read a third time.