Major Events Management Bill

Again, I would like to take just a brief call on Part 4, because I do not imagine there will be too much division in the Committee over this. The first comment I want to make is that—and again, if I seem to be straying a little bit in relevance, Madam Chair, I ask for your patience—frequently, members of Parliament moving around the country will hear any number of people telling us how useless we are, what a non-job we have, and that sort of thing—

💬 Hon Trevor Mallard: They don’t do that to me!

I mean those members over there, not me. Every so often they throw a name up at us. Let us not be specific about that, but often one finds oneself in the position of actually being able to say: “Now wait a minute, their name may not always be in the newspapers, and they may not be getting kicked out of the House periodically—all that sort of thing—but the work they are doing down in the engine room in their select committees is very, very sound.” I think there are a couple of examples in Part 4 of work that was done in the select committee, where—

💬 Hon Trevor Mallard: Yes, Maryan Street is great, isn’t she?

I say to the Minister that I suspect that the National members probably had somewhat more influence on deciding the shape of these amendments. Both of these amendments—subclause (1A) in clause 65, and clause 51A—reflect very much our point of view, and they temper the harsher intentions of the bill in its original form.

I think it is very important to realise that when something like this is being enforced and there is a requirement for a police officer to be involved, as there is in clause 65(1A), New Zealanders by their nature are much more likely to accept that enforcement and to acknowledge that that is an appropriate action that should be taken. For that reason alone it is good that the work of the select committee has just tempered the harshness of this. I do not believe that New Zealanders want this Parliament to be giving a range of enforcement officials greater power. Where that power is necessary to be given—and I do not question that in this case it is—it is important, I think, that it be tempered in the way provided for in clause 65(1A).

I think that this part illustrates the problem with the bill as a whole, in that when one imposes such restrictions on people over such a big area, one has problems in enforcement, which one would not have if one were not so heavy-handed as the State is. Under this provision there is the set-up of enforcement officers, who are not police officers and do not have the normal statutory powers for search and seizure. As Alan Peachey has just said, that is a problem, and the select committee did put in a provision that when a search warrant is issued in relation to the bill, the enforcement officer is to be accompanied by a police officer. As Alan Peachey said, that is a good restraint in the situation and makes it more acceptable to most New Zealanders.

Other powers and functions of the enforcement officer are detailed in clause 39, “Enforcement officer’s entry to premises restricted”, and clause 40, “Power of enforcement officers to seize or cover things”. A lot of what is in those provisions relating to enforcement officers is not covered by the need to have an accompanying police officer. For example, in relation to clause 9, only in clause 39(c): “when the entry is authorised by a search warrant issued under section 64.” is there the need for the accompaniment of a police officer. The other two subclauses in clause 39—“(a) when the place is part of a clean zone; or (b) when the place is outside a clean zone and it is a place that the enforcement officer may lawfully enter without a search warrant;”—clearly refer to somebody who is not a police officer conducting entry and—to follow up with the next clause—seizure outside of the functions of a police officer.

When we get to clause 40 we see that it is also about seizing or covering things—the bill talks about covering things. Presumably it refers to, for example, covering adverts. If Air New Zealand is advertising when Emirates Airline is the official sponsor, as is the case in the Rugby World Cup in France, the enforcement officer would have the power to cover the Air New Zealand logo. An enforcement officer may seize or cover anything believed to breach the legislation that is either within the clean zone or, as clause 40(1)(b) states, “outside a clean zone and it is in a place that the enforcement officer may lawfully be without a search warrant.” Then we get into the sticky area added by the select committee. Consider this example. The clean zone extends to the road around the stadium, and across the road there is private property and someone is trading off that private property. As I understand clause 40(1)(b), an enforcement officer—not a police officer—could come over on to that property and cover something up or seize something.

I might be mistaken there in my interpretation. I am happy to be corrected. But it just shows the problems when we extend powers unnecessarily, as has been done in this bill, when there is no gigantic problem we need the heavy hand of the State to solve here.

In a crowded gallery and a hushed Chamber I just express concern that the Minister the Hon Trevor Mallard has not seen fit to offer comment on Part 4 of the Major Events Management Bill. I express the wish that he will do so, because there are a number of important aspects that I am sure his officials would have drawn to his attention. The bill is another example, of course, of the type of legislative drafting technique where there are a whole lot of subparts, which might inappropriately limit debate on the substantive part itself.

Part 4—and National supports the Major Events Management Bill—is all about enforcement, and the subparts deal with matters of general application, with border protection measures, which I am sure the Minister has thoughtfully considered in subpart 2, provisions relating to enforcement officers in Subpart 3, and provisions relating to civil proceedings in Subpart 4. Subpart 5 is concerned with criminal offences, and Subpart 6 with search warrants. Then, of course, the legislation moves on to the next part.

I would like to make some brief comments about enforcement in the context of this legislation, because this is an area that occupied some time in the Commerce Committee and is the subject of some change. A combination of enforcement measures is provided for in the bill to ensure the effective and efficient enforcement of ambush marketing protections. The plan of the drafters, which the select committee accepted was appropriate, was that criminal and civil remedies would ensure deterrents and redress, whilst the extra provisions that were included for administrative remedies would expedite the enforcement of ambush marketing protections, limiting the protection for harm by stopping ambush marketing at crucial times. It is quite right to say, as others have said in this debate today, that in the context of ambush marketing, timeliness of response may often be critical to advancing the interests of sponsors and others.

I start by talking about civil remedies. Ambush marketing occurs where the ambush marketer perceives that he or she will gain some benefit from his or her activities. Both as a form of deterrence and, I think, to ensure that ambush marketers do not get paid from their activities, event organisers and—subject to the event organiser’s discretion—official sponsors that have suffered damages or loss will be able to bring civil actions. That is as it should be. The civil remedies available include an account of profits, which is stripping the ambush marketers of the benefit they gain from ambush marketing activities; damages, which as we all know is making good any loss suffered by event organisers; and also corrective advertising, to correct public misapprehension.

That is all I would seek to say on civil remedies, but in addition, of course, to those remedies provided by the legislation there are criminal penalties. The possibility of criminal prosecution for ambush marketing activities I believe will act as a significant deterrent to those considering the possibility of undertaking that type of activity. There are analogies to be drawn in the context of the Trade Marks Act 2002. As Mr Hughes has reminded me, key provisions in section 124 of that Act prohibit a person from knowingly applying a mark to the goods and services that he or she knows is likely to be mistaken for a registered trademark. So much for the civil and criminal remedies.

There is this further area, of administrative remedies. It is usually only possible—as my colleagues on this side of the Chamber have reminded me—to bring criminal and civil proceedings after an event has occurred. There are some exceptions, but the process is complicated and it can be time consuming and expensive. Administrative remedies may very well be an effective enforcement process in this legislation. What is possible? Well, enforcement officers, who are appointed by the Ministry of Economic Development, can do a number of things. They can issue formal warnings to ambush marketers. They can seize offending material, they can obscure offending material, and they can enter premises under limited circumstances.

💬 Hon Trevor Mallard: Can the member say something to wake us up?

One of the issues—and I say this to wake the Minister up from his generally somnolent state—is the police involvement in the enforcement process. The Minister should listen to this, because this was a change. This was not something the officials wanted; this was something they told the Minister they did not want. But the select committee said this is what we would have, and we do—in the context of exercising these enforcement powers on private land, the police are to be involved. It was suggested that the police would not be much interested in that, but the reality is that we need to be hugely careful, as Keith Locke has said tonight, in arming officials with enforcement powers. It is appropriate that when those powers are exercised they be exercised in the presence of the constabulary.

I now await the Minister’s comments on what he thinks of these administrative remedies. It is a test for him, I would say, as to his knowledge of the legislation and the approach that has been taken in philosophical terms to provide effective remedies in the case of a breach.

I rise to take a short call on this issue, because I think some things have been lost sight of in the course of some of the recent contributions. During the select committee deliberation on the whole of this bill, great care was taken to balance rights, and to balance those few occasions when rights were being infringed or curtailed in any way. That balance was set against the advantages that might accrue to New Zealand from being able to hold major events of the sort that this Major Events Management Bill envisages and provides for.

It is true that the select committee unanimously decided to amend one of the enforcement provisions in clause 65, “Powers conferred by warrant”, in Subpart 6. This is where we agreed that in order to perpetuate the kind of balance that New Zealanders would tolerate and expect under this legislation, any search warrant should be exercised by an enforcement officer only when that officer was accompanied by a member of the police. The powers conferred by a search warrant, under Subpart 6, are quite extensive. They are, as we would expect, the ability to enter and search the place, vehicle, or thing specified; to use any assistance that is reasonable in the circumstances; to use any force for gaining entry; to search for and seize any thing that the warrant authorises the person to search for and seize; to take copies of documents; and to require somebody to reproduce information recorded or stored in a document. Those search warrant provisions are quite far-reaching, and the committee decided it was a step too far to have those powers only in the hands of enforcement officers who were recruited for the purpose of an event. But enabling those provisions to be exercised under the auspices and the close observation of a police officer simply makes them consistent with other, similar provisions in the law.

At every turn in this bill, we were at pains to ensure that individual rights were balanced and that any curtailment of those rights was in fact prescribed and limited, and that is what has happened in this subpart as well. So before people go sounding off about infringement of individual liberty and the extension of the coercive power of the State, they need to understand that the police coverage provisions in clause 65 simply allow for the police to be able to accompany any enforcement officer, whether it be an officer of a city council, for example, or an enforcement officer appointed for the purpose, such as a security guard. Those people must be accompanied by police in order to exercise the search warrant provisions in the legislation.

This is sensible legislation. It is not extreme, one way or another. What it does, in fact, is limit powers that are given specifically under this legislation to particular circumstances, at particular times, and in particular places in respect of other provisions in this bill. It is perfectly clear that a good deal of thought has been given to the enforcement part of this bill. Across the select committee, it was unanimously decided that the additional provision of observation and accompaniment by a police officer was sufficient to give comfort to the public of New Zealand that no excessive rights or powers were being granted indiscriminately.

I do thank the select committee for putting in the amendment that both Dr Worth and Maryan Street have mentioned, which makes sure that a police officer accompanies an enforcement officer when a search warrant is executed. That is a good step forward, but it does not get away from subclauses (a) and (b) of clause 39, which relate largely to the action of enforcement officers immediately around the event. They have powers to cover over things and seize things without any police officer being present if the place is part of a clean zone or outside a clean zone. When the place is outside a clean zone, presumably the bill means that, without a police officer by the enforcement officer’s side, the officer will be able to cover over a sign or whatever along a declared clean transport route up to 5 kilometres away, and will be able to seize something from a person if that person is trading from his or her lawn across the road from the clean zone, as covered in another clause.

That can actually be for quite a long period, too, because the protection period—and this has not really come out in the debate yet—is not just for the day of the event. Under clause 8, it can be for up to 30 days after the completion or termination of the major event. So one can imagine a situation where, for instance, Air New Zealand could have an advert 4.5 kilometres away and the enforcement officer, without a police officer present, could cover over that advert up to 30 days after the event if, say, Emirates Airline is the major sponsor, as it is at the current World Cup. Similarly, Lemon and Paeroa ads could be covered over if Coca-Cola were the major sponsor, as it is at the coming World Cup in France, or if a Canterbury clothing manufacturer has a “Buy Kiwi Made” ad, that ad could be covered over, because Adidas is the official sponsor at this coming World Cup and maybe at the following one. Heineken is the official sponsor at the World Cup in France; Steinlager might be advertising 4.5 kilometres out, and that ad could be covered over by an enforcement officer.

That could happen under this bill, and I do not think we need to go to that extent to achieve what most of us want to achieve—a successful tournament for the 2011 Rugby World Cup and other major international events.