New Zealand Bill of Rights (Private Property Rights) Amendment Bill

I move, That the New Zealand Bill of Rights (Private Property Rights) Amendment Bill be now read a second time. My bill, the New Zealand Bill of Rights (Private Property Rights) Amendment Bill, received its first reading, with the support of all parties of the House, except the Greens, way back on 11 May 2005—now almost 2½ years ago. It has therefore had a long gestation period, including detailed examination by the Justice and Electoral Committee. I take this opportunity to thank the officials from the Ministry of Justice for the several reports they provided to the select committee during those deliberations.

Private property rights have their origin in the Judaean commandment “You shall not steal.”, and have come down to us in 2007 from that source, via the Magna Carta and the common law tradition. In particular, I want to draw reference tonight to the Universal Declaration of Human Rights, which was adopted and proclaimed by the United Nations General Assembly on 19 December 1948. New Zealand was an active participant in the development of the declaration, and it was enthusiastically endorsed by the then Labour Prime Minister Peter Fraser. Article 17 of the declaration deals with property rights in two short sentences: “Everyone has the right to own property alone as well as in association with others.”, and “No one shall be arbitrarily deprived of his property.”

My bill, with the amended words now proposed, is expressed in virtually identical terms in new sections 11A and 11B inserted by clause 4: “Everyone has the right to own property, whether alone or in association with others.”, and “No person is to be deprived of that person’s property without just compensation.” I would like the House to note that, on the advice received from officials, I have dropped the words “use or enjoyment” from new section 11B.

Essentially, all my bill therefore does is specifically include in the New Zealand Bill of Rights Act 1990 the universal property rights that should be available to all members of the human race—they are, after all, human rights. Similarly, my bill simply aligns the position in New Zealand with the position adopted by a majority of the world’s nations. Let me list just some of them. The documents of all the existing regional human rights instruments—which include the European Convention for the Protection of Human Rights and Fundamental Freedoms, African Charter on Human and Peoples’ Rights, and American Convention on Human Rights—specifically incorporate property rights. So too do the Fifth Amendment of the US Constitution, the Australian Constitution, and, in the officials’ words, “the constitutions of most Commonwealth countries”, including India, South Africa, Malaysia, and many others. Therefore, it needs to be emphasised here tonight that the continued omission of private property rights from the New Zealand Bill of Rights Act puts us out of step with most of the developed world. Even China today has private property rights in its constitution.

In these circumstances, it is a vast understatement to say that I am staggered to find that both Labour and National have decided not to support this bill. Significant and well-researched submissions were made to the select committee in support of my bill by many organisations and individuals, including the Property Council of New Zealand, Federated Farmers, the Treaty Tribes Coalition, Business New Zealand, the New Zealand Business Roundtable, and the Human Rights Commission.

The only significant naysayer in relation to the bill was the New Zealand Law Society. However, its submission tended to lack credibility when, for example, it questioned whether a person’s entitlement to a State pension could be included within the word “property”—a matter long since determined by the courts in the negative. For that reason, the submission has pretty much been condemned by other lawyers who have taken the trouble to contact me.

The Justice and Electoral Committee also sought input from the Law Commission. A response was received from the Rt Hon Sir Geoffrey Palmer, who is President of the Law Commission. His submission has special significance, as he is regarded as the father of the New Zealand Bill of Rights Act 1990 and is, of course, a former Labour Prime Minister. Sir Geoffrey’s response was to forward to the committee a copy of the keynote speech he delivered to the Ministry of Justice symposium in February 2006—that is, 9 months after the first reading of this bill. The speech contained a clear and unambiguous sentence: “I took a deliberate action to exclude this”—that is, property rights—“in the 1980s, but, on reflection, I believe it should be included.”

It is relevant to note that the Attorney-General, Dr Michael Cullen, recently told the House that Sir Geoffrey Palmer has since advised him that before private property rights are added to the New Zealand Bill of Rights Act a great deal of additional work needs to occur. I note that comment, but I would like to make the point that Sir Geoffrey did not communicate those views to either the select committee or me as the member in charge of the bill.

I want to turn now to the comments of the Justice and Electoral Committee in relation to this bill. I must say that from the beginning I always harboured doubts about whether Labour would support the bill. Nevertheless, I remain disappointed with its decision not to support the bill, and with the illogicalities that accompany that decision. For example, Labour members state that my bill gives little guidance on legal interpretation. But that is the case with every single provision in the New Zealand Bill of Rights Act. Very deep texts have been written—

💬 Hon Clayton Cosgrove: How deep?

—they are at least 4 inches deep—on the interpretation of the rights that were already in the New Zealand Bill of Rights Act and on every single one of those rights that had to go to the court for interpretation, and it will be no different with this bill. So the bill’s lack of guidance on legal interpretation is not really a very valid excuse for not supporting it.

Labour has also overlooked the common law tradition involving a vast number of cases and spanning several centuries, all of which are available to assist the court in determining the application of the rights contained in my bill. For example, the question of compensation has long since been settled in the common law tradition as being “full and adequate”. I am surprised that both Labour and National have acted as if that common law tradition simply does not exist.

Particularly troubling is the committee’s concern that the enactment of my bill might have compensation implications under the Resource Management Act. Surely, that simply illustrates that without the protection of property rights in the New Zealand Bill of Rights Act, Parliament can continue, even unknowingly, to pass laws undermining those human rights—rights that belong to the citizens of New Zealand based simply on their humanity. The whole point of including these rights in the New Zealand Bill of Rights Act is, in fact, to ensure that Parliament is constrained and that it will receive a clear statement from the Attorney-General should a future bill seek to undermine those human rights. Without the protection I am seeking through the New Zealand Bill of Rights Act, we may continue to see the property rights of the citizens of New Zealand being undermined by Parliament. I do not believe we should take that risk.

I want also to turn to the issue of the Treaty of Waitangi. As is well known, the Treaty, in both Article the Second and Third, establishes the right of Māori to their lands, and protects that right. For about 150 years after the Treaty was signed, the Government in New Zealand constantly and continuously breached the property rights of Māori. Nobody in this House would argue with that statement. Given that shameful legacy, I had hoped that Parliament, given this opportunity, would enshrine Māori property rights in the New Zealand Bill of Rights Act, once and for all. Sadly, tonight it will fail to do so.

I want to say that my new political party, Future New Zealand, has a commitment to adding property rights to the New Zealand Bill of Rights Act. I will be watching to see whether a similar commitment will be contained in the manifesto of the National Party in 2008, given their professed strong support for property rights. After all, the National Party, in its minority report, states: “We have a strong commitment to private property rights.” Given that statement, surely the National Party should follow through, but it is not supporting this bill. Again, National says there is more work to be done. There is always more work to be done. National members go to the officials time after time and they produce report after report. They ask the select committee whether there is any more information. Then there is silence from the National Party members and, after all that has happened, they say there is more work to be done.

If National is to have any remaining credibility on the issue of property rights—and I know National has had submissions on this issue from those people I have talked about who made submissions, since it decided to oppose the bill—then I challenge National tonight to make a clear commitment in its manifesto for the 2008 general election that it will add these important rights to the New Zealand Bill of Rights Act 1990. I will not hold my breath, but I hope I am proved wrong. Thank you.

Although, sadly, it is not in support of this bill, I am happy to stand to speak and perhaps talk about the process of dealing with the bill in the Justice and Electoral Committee in probably happier times than we are in at the moment. Although there were some differences, I think the select committee worked quite constructively on the bill. I would say to Gordon Copeland that the committee spent some time giving the bill really good consideration, and exploring a number of avenues that we could move forward on, but, sadly, at the end of the day, that was not possible. As Gordon Copeland has said, the purpose of the bill was to provide for the protection of private property rights in New Zealand within the New Zealand Bill of Rights Act. Labour certainly acknowledges that there is considerable public support for the further protection of property rights, and certainly, as Mr Copeland has said, in other jurisdictions there is such legislation with that purpose in place.

The first of the two new sections inserted by clause 4, new section 11A, was to provide that everyone had the right to own property, whether alone or in association with others. New section 11B was to provide that no person would be deprived of the use or enjoyment of his or her property without just compensation. I acknowledge that Mr Copeland amended his position on that issue in trying to find a way through for the bill, but in the end the majority of the voting members of the select committee voted unanimously against the bill proceeding. That is because we found problems with the bill in its current form. I have to acknowledge here the advisers from the Ministry of Justice who gave a very comprehensive report on the bill, and the select committee staff, who worked very diligently. As I said before, I want to acknowledge all of the committee members who listened intently to the submissions and gave careful consideration to the bill.

From the perspective of the Labour members there was a definite concern that more work needed to be done on such words as “property” and “deprived” and the right to “just compensation”. This, indeed, was a concern of mine—that outcomes could be created and costs incurred that were perhaps not necessarily intended. As well, the National members on the select committee did not support the bill. Sadly, in their minority report, which I know they will speak to, they acknowledged, as did members from other parties, that there was support for property rights but they could not support the amendment. Given the support that Mr Copeland has given the National Party, in terms of exercising his vote in the House, I can understand his disappointment that the National members did not, until very late in the piece, advise that they would not be supporting the bill. I really do empathise with Mr Copeland on their decision. I think that the purpose of the bill, as I acknowledged before, is a very worthy purpose and I commend Mr Copeland for his intent and goodwill.

Some of the concerns that I had, which I know a number of members shared, were perhaps—if I can use the term—unintended consequences of the bill in terms of the effect it could have on local bodies. I think there was very much a degree of uncertainty around the consequences should the bill come into force in its current form around, certainly, its relationship to the Resource Management Act and its effect on that. As I said before, the bill’s effect on local authorities and the potential costs would remain pretty unknown until—and I think I heard Mr Copeland say this—such issues were tested in court. That, certainly for many of us, was something we did not see as a tremendous right—the ability or the possibility of substantial litigation around this bill because of uncertainty.

Despite, as I said before, Mr Copeland’s stating that he was willing to remove the words “the use or enjoyment” from the new section 11B in clause 4, we still felt that that did not go far enough to resolve the concerns of the committee. Given the possible consequences of the bill’s enactment in its current form, it was just not possible for the bill to proceed. I note that perhaps sometime in the future there may be more work done and it may be possible to address the concerns that Mr Copeland attempted to address in the bill that he put before the House, which was supported to select committee so we could hear from submitters. I commend the submitters. We had submitters who obviously supported the bill in terms of property rights, and we also had a number of submitters who, like members of the committee, shared concerns about some of the impact and unintended consequences should the bill proceed.

I cannot add much more to that except to say that I congratulate Mr Copeland. I know it was with very good intentions that he brought this bill to this House. I hope he recognises that parties supported the bill to go to the select committee to enable a greater scrutiny, to enable submitters to have a say on the bill, and to look at any aspects that were raised during the submission process. I believe all members can put their hand on their heart and say that process happened—due consideration was given. But unfortunately I am standing in this House to speak in support of this bill not proceeding. Thank you.

There is no real debate, I would have thought, from any party in this Parliament about whether there is significant support for further legal protection of private property rights in this country; nor do I think there is any real debate about the proposition that in many jurisdictions private property rights have been enshrined in legislation, or, moreover, that the right to compensation for loss of property is widely supported. So far so good. But, unfortunately, the National Party cannot support the second reading of the New Zealand Bill of Rights (Private Property Rights) Amendment Bill, for a number of reasons that I will elaborate on.

I join the chair of the Justice and Electoral Committee in praising the member in charge of this bill, Mr Copeland, because I think he did a very good job and showed great patience over an extended period as the select committee dealt with the legislation. It reflects no credit on this place that a bill introduced in 2005 is only now, in late 2007, being debated in its second reading stage.

The New Zealand Bill of Rights Act 1990 is deceptively simple legislation. Its author, it is fair to say, was Sir Geoffrey Palmer, who at the relevant period was Attorney-General and Minister of Justice. It contains a number of simple parts. There are the preliminary provisions set out in Part 1, and there is a statement of fundamental civil and political rights in Part 2—for example, provisions that recognise the importance of life and security of the person, rules about non-discrimination and minority rights, and rules dealing with search, arrest, and detention. What Mr Copeland’s bill seeks to do is to insert in the subpart—as we would call it now—dealing with life and security of the person a couple of sections that recognise fundamental property rights.

The Act is important legislation, and in the 17 years since it has been enacted it has spread its influence into all areas of the law. I for one, prior to coming here, practised as a civil and commercial barrister, and I never paid very much attention to the New Zealand Bill of Rights Act, because it did not interfere too much in the areas in which I practised. Since coming here and having a wider brief to look at public law and criminal law subjects, I have begun to realise the importance of the New Zealand Bill of Rights Act and the responsibilities of those who deal with it.

In that regard I refer to section 7, where the Attorney-General has a very real independent, quasi-judicial responsibility to report to Parliament when any bill appears to be inconsistent with the New Zealand Bill of Rights Act. As we know, sometimes the Clerk advises us that the Attorney-General has tabled a report dealing with an aspect of legislation that may or may not offend the New Zealand Bill of Rights Act.

💬 Chris Auchinvole: Did he do it?

In relation to one major piece of legislation, the Electoral Finance Bill, the Attorney-General failed to do it, because he put party above principle. As I have often said, the real test of the worth of politicians is not whether they stand up to their enemies but whether they stand up to their friends, and it is very apparent in the case of this Attorney-General that he puts party above principle. He failed demonstrably to provide a report under section 7 of the New Zealand Bill of Rights Act, and stands condemned for his failure to do so. Of course, if the Attorney-General is not up to the job, perhaps his self-appointed parliamentary private secretary could do it, although I cannot say I would have a lot of confidence in the quality of his opinions. As all of us in Parliament have witnessed in the last week or so, Mr Chauvel’s real skill is self-promotion.

It is very interesting to observe that in England the Attorney General’s current responsibilities as legal adviser to the Government and independent guardian of the public interest have been seen to be fraught with conflicts of interest. Indeed, those tensions were highlighted during the period that Lord Goldsmith was Attorney General, when controversy erupted over his advice on the legality of the Iraq war, his insistence on having a say in whether to prosecute Downing Street aides over the cash-for-honours affair, and his part in the decision to drop a bribery investigation against BAE Systems. Like our Attorney-General, he showed himself to be a man of party rather than a man of principle. That is why the role of the Attorney General in England—and Wales—is being looked at, and why the role of the Attorney-General here, after this Attorney-General’s shabby performance in respect of the Electoral Finance Bill, will have to be looked at.

I have explained exactly where in the Act Mr Copeland’s amendments would have inserted sections. In fairness to Mr Copeland, I now want to say a couple of things about why National will not be supporting the second reading of the bill. Although we strongly support property rights we cannot support the bill, because the amendments would have far-reaching implications and could well be the cause of a great deal of litigation against the Crown. Some people would say that is just par for the course with legislation like this, but it is fair to say that the New Zealand Bill of Rights Act, in its current form, has given rise to a great deal of unintended—speaking in 1990 terms—litigation against the Crown and Crown agencies, and before we embark on inserting amendments such as those sought by Mr Copeland we ought to be very clear about what we are seeking to do.

The ambit and the scope of what is proposed are very unclear. Ms Pillay spoke in her speech of seemingly innocent terms such as “property” and “deprived”, and that very difficult phrase “use or enjoyment”, which is proposed in the bill. When we start to think about those phrases, and when we look at the litigation that has been generated in other jurisdictions, we see that the ambit and the scope of those phrases are very unclear indeed.

The point that National members have made in the minority report is that this bill is a member’s bill, and although the Ministry of Justice officials provided us with some assistance—

💬 Chris Auchinvole: Responses.

—or some responses, as Mr Auchinvole has said—the select committee has not had the benefit of Crown advice to the same extent as it would have if this bill were a Government bill. So the first point is that before Parliament amends the Act, much more research is required on the implications of the amendment.

The second issue is that we consider that compensation issues should not simply be left to the courts; indeed, there should be a proper statutory basis for compensation. In recent times, I have been looking at the Public Works Act 1981 and the Resource Management Act 1991. I do not disagree with Mr Copeland, at all, that the compensation provisions of the Resource Management Act are unsatisfactory. But I do think there is certainly a respectable argument that an alternative approach to dealing with this kind of issue in the New Zealand Bill of Rights Act is to review and enhance existing compensation provisions or, better still, to have a comprehensive statute that deals with compensation issues.

I congratulate Mr Copeland on his endeavours to deal with this legislation. I think he showed the patience of Job in putting up with a delay of up to 2 years while the select committee meandered through its work plan. His legislation never seemed to have the priority that I thought it deserved. I congratulate him on raising a very important issue, which is of fundamental importance in a society such as ours. But, on this occasion, I do not believe that this legislation is an appropriate amendment of the Act. If we are to introduce provisions that protect property, the use and enjoyment of property, and compensation for loss of property, a lot more work is required.

I, too, congratulate Mr Copeland on getting his bill, the New Zealand Bill of Rights (Private Property Rights) Amendment Bill to this stage. For an MP, to get a member’s bill out of the ballot, and to have it debated and considered, is an achievement in itself. We have heard tonight how patient Mr Copeland has been, and how cooperative he has been in terms of attempting to get this bill through this House.

We have heard that the purpose of this bill is the protection of private property rights in New Zealand, within the New Zealand Bill of Rights Act. Labour acknowledges that there is significant public support for further legal protection of property rights, and that other foreign jurisdictions enshrine property rights in legislation. Having said that, I say that Labour does not support this bill, and we do not support it for the following reasons. The bill seeks to add the right of property, as I said, to the New Zealand Bill of Rights Act, as has been recognised in various international human rights treaties and national constitutions. However, the language used in this bill would result in the right to property being given a broader meaning in New Zealand than it has been given or is given, under these instruments.

Four areas of potential concern arise from the terminology used in the bill. One has been identified in the terms of property itself: the words “deprived”, “use or enjoyment”, and “just compensation”. Because of the vagueness of the terminology used in the bill, it appears to encompass a wide array of Government activities, and therefore its potential impact is far-reaching—more far-reaching than we can know, at this stage. We have already heard from Mr Finlayson that further work ought to be done in that area. The uncertainty around the effect of the bill’s terminology, and what would constitute a justified limit on the right of property combined with the requirement to pay compensation, are believed to be likely to cause administrative difficulties and to increase transaction costs for both Government and property owners. They could also lead to complex and costly litigation against the Crown and local authorities.

It is also questionable as to whether the bill raises a problem that requires a legislative response, particularly one that encompasses a wide array of Government policies and practices that impact on property use. My understanding is that the Justice and Electoral Committee recommended that the bill not be passed, but in its report the committee acknowledges there is significant public backing for further legal protection of property rights in New Zealand. It noted that the notion of a right to compensation for the loss of property has wide support. Nevertheless, the committee considered that the bill is not an appropriate way by which to protect private property rights in New Zealand or to establish an equitable compensation regime for the loss of property. The committee agreed with the concerns about the bill’s terminology, and considered that further work needed to be done.

In Mr Copeland’s contribution this evening he mentioned Sir Geoffrey Palmer, the chair of the Law Commission. Given Sir Geoffrey’s support for the inclusion of the right of property within the New Zealand Bill of Rights Act, justice officials consulted with Sir Geoffrey Palmer on the desirability of including property rights within that Act, and the possible changes to reduce the uncertainty around the effects that the bill’s terminology may have on Government activities.

Although Sir Geoffrey reiterated his view that property rights should be better protected in New Zealand, he advised that the bill was not the best means to do so. In particular, Sir Geoffrey was concerned about the terminology used in the bill. He considered that without undertaking a comprehensive policy analysis of the issue it was impossible to determine the exact impact the bill would have on Government activities, and it was dangerous not to do such an analysis. So I think if Mr Copeland is looking to Sir Geoffrey to support his bill, it is quite obvious, from Sir Geoffrey’s discussion with justice officials, that that is not the case. He does not believe that this is the bill that property rights ought to be included in, and that is probably a pretty comprehensive summary of Sir Geoffrey’s opinion.

As I said, we heard from Mr Finlayson this evening; he has given the National Party’s view. National has been urged by Mr Copeland tonight to vote where its principles are and to support property rights. Although one could argue that, I would have to say to Mr Copeland, without wanting to put a sour note into the debate, that supporting one’s principles was something that I would suggest he should have done, as well. I am sure that Peter Dunne has not forgotten to this day that it was only hours before Mr Copeland set up his own political party that he was promising he would not do so, though he came into this Parliament supporting the principles of a particular party—

💬 Gordon Copeland: I raise a point of order, Mr Speaker. I take personal offence at those remarks. Peter Dunne and I were present in the room when that conversation occurred—no one else was there. I did not give such assurances, and I think it is wrong, therefore, for the member to repeat that accusation.

💬 Mr DEPUTY SPEAKER: No, it is a debating matter.

I certainly agree with your ruling, Mr Deputy Speaker, because I have heard the comments from the leader of United Future, and he would dispute the point of order just taken by Mr Copeland. I would have to say to Mr Copeland that I have had my own experience in terms of keeping one’s word. As I said, I do not wish to put a sour note into the debate, but when one berates parties about sticking to their principles—and I am in support of the National Party on this occasion—then one is expected to stick to one’s principles, as well.

In conclusion, Labour will not be supporting this bill. We acknowledge the work that has been done in the preparation of this bill. We acknowledge that Mr Copeland has laboured hard and that he has gone through the process and endeavoured to get agreement on it, but at the end of the day it has to stack up and it has to be workable. From the evidence that was received at the Justice and Electoral Committee and from the deliberation of the select committee itself, I can say that the bill is not believed to be workable, and we ought not pass legislation that would lead to problems further down the track that we would have to fix—problems that could be costly to the Government and local government but also to private property owners.

Labour will not be supporting this bill. That does not mean that we do not acknowledge that there is significant public support for further legal protection of property rights. That issue will no doubt be addressed in another form, and perhaps in a more appropriate form than this bill.

I do not intend to speak for any great length on this New Zealand Bill of Rights (Private Property Rights) Amendment Bill—

💬 Hon Clayton Cosgrove: Good!

—I am glad I have made someone happy; I like making people happy—because New Zealand First was not represented on the Justice and Electoral Committee. There is a concept here—a principle, if you like—that we think should have been looked at in some detail.

If people own property and that property is taken from them, then they are entitled to compensation. It is as basic as that. If the State or somebody else takes something from somebody, then that person is entitled to compensation. We think that this bill, with the Government’s resources—and I accept what the Minister of Justice, Annette King, has just said—needed some tidying up or amendment to get it right.

💬 Hon Annette King: They tried at the select committee, but they couldn’t.

I say to the Minister that I accept that also, but I think a little bit more effort could have gone into it because it is a very important concept and a very important principle.

I sympathise with Gordon Copeland to the extent that he has tried very, very hard to have this bill examined fully. He has waited patiently for some considerable length of time to get it through the select committee.

I think he has been let down by the National Party. I listened to Chris Finlayson. When that member talks, he puts legal language into everyday language and he makes quite a lot of sense. But I think his contribution tonight was a long-winded way of saying that National could not really care a stuff about Mr Copeland. It has his proxy vote, and it is not prepared—

💬 Chris Auchinvole: That is not fair, at all.

Those were not the actions of a party that believes, as it states in the select committee report, that it strongly supports property rights. That is what that party over there says, and what does it do with a bill that could well have been amended? National, with its resources, could have been of assistance to Gordon Copeland and it could have made this bill much more acceptable.

I just want to say that New Zealand First believes that Gordon Copeland has been let down. I do not want to go into his past or what he has done. I am simply saying that Parliament has let him down. We could have done more for him. We will support this bill, but we realise now that with National and Labour opposing it, it is a dead duck, so to speak.

Gordon Copeland has touched on a principle that I think should be close to everybody’s heart. It certainly should be close to the hearts of people who believe in free enterprise and believe in private property rights. I simply say that we, collectively—this Parliament—could have done better with this bill, and I think we should go home tonight thinking that, but New Zealand First will support it.

The Greens did not support the New Zealand Bill of Rights (Private Property Rights) Amendment Bill when it was first introduced and we do not support it now. It has been quite obvious from the beginning that we have perfectly good laws against theft now. We have perfectly good laws for compensation when the law takes one’s land for some public purpose. Gordon Copeland says this legislation is based on the Judeo-Christian principle of “thou shalt not steal”. Well, stealing is quite adequately provided for in the criminal law at the moment, and I do not see why that needs to become a New Zealand Bill of Rights Act issue.

How can we add to the New Zealand Bill of Rights Act a right that has no agreed meaning, that has changed over the years and the centuries, and that will continue to change? It used to be a property right for men to beat their wives. If that right had been enshrined in a Bill of Rights Act at the time, where would that have left us? Until very recently it was regarded by many people as a property right to beat their kids. That is no longer the case, either. For much of our history women could not own property, at all; they had no property rights. So what exactly would we have been enshrining in a Bill of Rights Act then?

Rights conflict, they can never be absolute, and they are always relative to the rights of other people. Four hundred people a year have a right to clean air, but they die prematurely because somebody else thinks they have the right to operate a motor vehicle with a dirty exhaust. Whose rights are we enshrining in the New Zealand Bill of Rights Act there? Are we enshrining the property right to use and enjoy the property of a motorcar over and above somebody else’s right to life and health? I have a right to enjoy my property—the stereo—at 3 o’clock in the morning and to play my favourite music very loudly. But my next door neighbour has a right to peace and quiet. Does my property right to enjoy my stereo because it is a thing that I own override my neighbour’s right to a decent sleep, and perhaps to the health that depends on it? Should my neighbour compensate me if I am not allowed to play my stereo loudly at 3 o’clock in the morning, given that my stereo is a property, my neighbour’s health is not actually property, and my neighbour’s sleep is not property and is therefore not defined as a property right?

The nub of this debate is actually the often-claimed right to do what I like on my own land, and to enjoy my land by doing what I like on it because I own it. Well, that right has been increasingly circumscribed by law for very good reason for a long time. Do I have a right to clear and burn the forest on my land? Do I have a right to burn the tussock and the stubble? Are there some wider public rights that override my right to do what I like on my land? Do I have a right to exterminate rare species and to make whole species extinct because of my actions? Do I have a right to pollute the air and the water of those whose properties adjoin mine?

💬 Hon Harry Duynhoven: No, because you’ve got a wider responsibility.

Well, exactly. As the member says, there is a wider responsibility, but the New Zealand Bill of Rights Act is not about responsibilities. It does not say anything about the responsibilities that go with those rights.

It is a good idea to have a Bill of Rights Act. It is very important to protect the right to life, the right to liberty, the right to free speech, and those other personal rights. But when we get to property rights we are dealing with a very confused and conflicting issue where people’s rights conflict with other people’s rights, and where property in this respect could be seen as having a higher status than health or, in fact, life itself. There are many situations in the world where the right to property is held in law to override the right to life of other people, and I am glad we are not heading in that direction in New Zealand.

A bit of history is important here. This bill was introduced in 2005 by the member in charge of it at the behest of the United Future caucus, and we are a party that believes in consistency and in upholding decisions we made previously. Despite what has gone on this evening, we will continue to support this particular piece of legislation, because, actually, being consistent, saying what one believes, and standing by it are values we hold as particularly important, even if some others see them as a tradable commodity.

There is a bigger issue here. The New Zealand Bill of Rights Act is an important part of our legislative and constitutional framework, and the glaring absence from it at the moment is the issue of any form of protection for private property. I have listened very closely to some of the speakers who have taken part in the earlier stages of this debate, and some of the concerns they have expressed about the potentially open-ended nature of this provision in the bill, some of the risks inherent within it, and some of the dangers that the Government might be exposed to if such legislation were to be passed. I think that none of those are insurmountable issues. All of them could be worked through, and the reason we are continuing to support this bill in the face of fairly overwhelming opposition in this House is that we think the issues are important, and we think that the Government should have taken them on board during the period this bill was before a select committee and indicated a work programme to address them.

This evening we have heard a number of speakers say that although they sympathise with the concerns that underpin this legislation, although they understand the point that is trying to be made, and although they believe it does need to be addressed, it is just all too difficult at the moment. I do not accept that thinking. I think that if that concern is genuine, then the Government should have indicated a work programme enabling these measures to be addressed and some assurance to be provided in the longer term that there would be legislation along these lines. The fact that that has not been the case persuades my caucus that this is an issue we should continue to support despite some of the flip-flops and vacillations of others, and we will continue to do so because we believe this is a case where principle is more important that pragmatic practice.

So I simply conclude, as the House is about to rise, by indicating our ongoing support for this legislation. That was why we urged its introduction in 2005, and that is why we continue to support it today.

The New Zealand Bill of Rights (Private Property Rights) Amendment Bill is a well-intentioned bill. It has no hidden agenda, and it seeks to address an exclusion, by specifically mentioning private property, from the New Zealand Bill of Rights Act. The first reading—

💬 Hon Clayton Cosgrove: Aw!

Does the member have a problem?

💬 Hon Clayton Cosgrove: Yeah—you.

Well, long may that last. The member should get used to it now. The first reading debate was on 11 May 2005, a couple of years ago. Members from all sides and from all political flavours seemed to be very much in favour of the bill when it was introduced, with the exception of those from the Green Party. Dr Wayne Mapp, Dr Michael Cullen, Dail Jones, Stephen Franks, David Parker, Georgina te Heuheu, and Peter Dunne were all very supportive in their comments about the bill. Even though the party representation was diverse, there was a common thread in many of the speeches.

Debate interrupted.

The House adjourned at 10 p.m.