Employment Relations Amendment Bill

Generally, I think these things would go through relatively smoothly, but there are two issues, or possibly three—

💬 Hon Lianne Dalziel: It’s a wide-ranging debate.

It may be a wide-ranging debate, but normally people accept these things, although in this case there is no acceptance from members on our side of the Chamber that these provisions are appropriate. There are at least three points that I can think of in this particular area, which are very specific starting points for the debate, before we broaden it out more generally.

The first point is whether it is appropriate—and maybe it is appropriate—to have this bill come into force on April Fool’s Day, because it is the Government’s intention that the bill come into force on April Fool’s Day.

💬 Hon Lianne Dalziel: Then why the urgency?

Why the urgency? There is no urgency at all; it is only that the Government is too chicken to allow the bill to be referred to a select committee and have a bit of a debate on it over the summer. The Government is too scared to let its backbenchers hear submissions on the bill, and that is the reason why the Government is passing the bill now, although it will not come into effect until later.

It is unusual that the ACT Party intends to move an amendment. It is a support party to the Government generally, but it is to move an amendment. ACT, of course, is trying to save the Government from some of its embarrassment whereby the bill is to come into force in April. ACT would like to see it commence on 1 March next year. I make it clear that the Labour Party will not be supporting the ACT amendment to bring the bill into force earlier. We think that if the bill is to come into force, then possibly April Fool’s Day is appropriate.

But there is a more substantive issue around this bill, because members will be aware that a petition is circulating by email, and by other means, to request that the Governor-General not assent to this bill. I am sure we will have some discussion from the previous Attorney-General and the current Attorney-General on that issue, and I make it clear that I am not a supporter of that petition. I think it is the right of the Government, once Parliament has passed a bill—in fact some people would say there is an obligation on the part of a Government, when bills have been passed—to recommend to the Governor-General that he or, in the previous case, she assents to the bill. It is part of the constitution that the procedure works in that way in New Zealand. It is an interesting approach, when we look at what is happening in Canada. That country is having a substantial discussion on this issue—

💬 Hon Member: On this issue?

It is an important issue. It goes to the question of whether assent is given, the role of the Government in seeking it, and the role of the Governor-General in reacting to recommendations that are made. I think Simon Power will have some experience of that, at some stage in the future. Generally, it is the Prime Minister or the Attorney-General who makes such recommendations. Every now and again, for reasons that are never clear to me, that responsibility is passed on to another Minister. I know that, because I was the person who recommended to the Governor-General that the Prostitution Reform Bill be—

The CHAIRPERSON (Lindsay Tisch): I would ask the Minister to confine his comments to clauses 1 and 2.

I am sorry, Mr Chairman; I thought I had made it clear I was talking to clause 2(1) of this bill. I was talking about the bill receiving the Royal assent and the methodology that is required for that to occur.

I think this is the first time I have known of a petition arising since 1977. I think at that stage there was a petition to the Governor-General as to whether he should assent to the SIS legislation that was going through the House at that time.

💬 Hon Dr Michael Cullen: “Kiwi Keith”

“Kiwi Keith” agreed, on one of the few times when he did agree, with the then Prime Minister, Rob Muldoon, and assented to the legislation. But speaking of the not-that-much lamented late Prime Minister Rob Muldoon, I tell members there was a very good example from him, at least one example, of legislation that he did not send to the Governor-General. I am sure the previous Attorney-General will be able to outline the other case. It was a case under the previous National Government of a bill that was passed by this House when Winston Peters was Treasurer. It concerned a bill he was promoting in the area of overseas investment, and that bill never made it to the Governor-General—

💬 Hon Dr Michael Cullen: No, it was assented to.

I am told by the previous Attorney-General that, in fact, it was assented to. But it was not brought into force. I apologise if I misled the Committee because my understanding of the situation was incorrect. The then Government had that bill assented to, but subsequently failed to send the Order in Council to the Governor-General that would have brought the bill, or presumably part of the bill, into force.

These things may seem to be arcane procedures to some of the newer members, but they are quite important matters constitutionally. I was indicating before that in Canada, over the last week or so, these issues have been—

💬 Hon Dr Michael Cullen: We could have a 90-day probation period for bills, I suppose.

I think that for some bills that would be appropriate. There would have to be some sort of override provision to the 90 days for emergencies and similar things.

💬 Hon Dr Michael Cullen: Small bills.

No, I think there should be a 90-day period for long bills—

💬 Hon Lianne Dalziel: Less than 20 clauses.

Fewer than 20 clauses; the previous Minister of Commerce’s use of grammar is somewhat mixed at the moment.

💬 Hon Ruth Dyson: She’s been mingling with National Party billboard writers.

She has been spending too much time with the people who have been drafting the National Party billboards and the people who were talking hard about literacy—although I am not sure that all clauses in this bill are grammatically correct, either.

I think this legislation is called the Employment Relations Amendment Act 2008, but it will be that only when it is passed. I make it clear that it is a question of debate as to whether it is appropriate to call it an Act at this stage, when it is not an Act, or whether that is premature. In fact, it is a question of whether the Minister in the chair is misleading the Committee, and asking us to agree to this legislation being described as the Employment Relations Amendment Act 2008, when clearly it is not that and cannot be that until it receives the assent of the Governor-General under subclause 2(1) of the bill.

In fact, parts of this legislation will not come into force until 1 April, which I assume will be some time after it receives the Royal assent. The way that these things go, in my experience, is that within a week or so the legislation will be checked for errors by the Clerk.

💬 Hon Clayton Cosgrove: What sort of errors?

Well, grammatical errors, spelling errors, punctuation errors, and clause reference errors. Those things, which are regarded as minor errors, are within the realm of the Clerk to correct. The assent copy, which goes to the Governor-General, is in fact the copy that has to be right, because the courts will go to that copy later. Being generous to us, they will allow the minor errors to be corrected, but of course the substantive ones cannot be corrected in that way.

Going to the Governor-General is an important process. It has a long tradition, and the Crown has not always automatically assented to legislation. I think if we go back into the Westminster tradition, we find bills were quite often rejected.

The other point that we could get into is that we have a relatively simple process. Having just a unicameral system—not having an Upper House, as many Parliaments do—means we do not need to work bills through to the Upper House and back again. However, I understand that as part of the constitutional review, the Māori Party has agreed with the National Party that there is a possibility of a two-House system being introduced.

💬 Hon Member: Richard Worth!

We thought earlier in the evening that Richard Worth had died, because he was asleep for so long. He did not move for such a long period of time that we were scared that that had occurred.

I wish to speak to the amendment in my name. The reason it is there is very simple, and it is entirely consistent with the speeches that we have made earlier in the debate. In ACT’s view, the bill—and I think my learned friend Mr Mallard over there might be correct that it is indeed still a bill—is designed to promote employment, and is a good idea for the economy and for workers. That being the case, it seems entirely silly to delay the commencement of such a sound idea, as embodied in the bill, until 1 April. It is very sensible, in my view, to advance the commencement date to 1 March. As I have said, it is entirely consistent with what we have said in our contributions to both the first and second reading debates, and I commend that amendment to honourable members. Thank you.

On that basis, the member would want to bring in the bill in its entirety on the day after it receives Royal assent, rather than limiting it to just clause 2.

💬 Hon Rodney Hide: The member should move an amendment.

I am not moving an amendment, because I do not support this bill, and I do not support it coming into effect on 1 April or at any other time. I think that this bill is appalling. My colleague Trevor Mallard gave us a very esoteric traverse through the whole constitutional arrangements that apply to legislation, but whether or not one agrees with the petition that is being circulated at the moment in respect of asking the Governor-General not to give the Royal assent—and I am actually with my colleague on that; I do not agree with the way the petition is being presented—it is probably understandable that it is being done, because there is no other way that people have any opportunity to put on record their opposition to this bill. But it does not make this process any less anti-democratic.

It is utterly anti-democratic to bring legislation into this House that does not even match the policy that the party campaigned on, and that is not included in the 100-day action plan. It is not even listed in there. It does not turbocharge the economy, and it certainly does nothing to lift productivity, as has been made as a point over and over again in the election campaign. It does none of those things.

This bill is going through an absolutely anti-democratic process. In fact, nothing that the ACT Party might move in terms of bringing it forward and nothing about the constitutional process that may follow its passing will make it democratic, because it is actually a betrayal of everything that National said it stood for in the election campaign.

We have already read into the record the National Party’s policy on this bill; it is not matched by the bill that has been introduced. The National Party policy said that a National Government would retain good faith, but it has not retained good faith for the first 90 days of someone’s employment.

💬 John Hayes: Yes, we have!

No, we have not. The reason that the National Party has not allowed for good faith is that it is quite happy that somebody takes on a job and for no reason whatsoever has his or her employment terminated. In fact, this gives carte blanche to any employer to disguise racism, to disguise sexism, and to disguise anything as anything that they want, because they do not have to give a reason for the termination, at all. What on earth makes people think that employers will be explicit about breaching the Human Rights Act when they do not need to be? All they need to do is say: “I am sorry; don’t come Monday.” That is the new name of the bill: the “Don’t Come Monday Bill”. All an employer has to do is say: “We don’t want you here.”

I think it is an absolute sophistry for National Party members to say that they have in any way consulted the general public about this bill, and I am not surprised that so many people are signing the petition, because there is no other way of showing outrage at the way the National Party is treating the people of New Zealand. Even Business New Zealand does not agree with the National Party’s ramming this bill through under urgency. As for Mr Rodney Hide, our new Minister for Regulatory Reform, this is the second bill that we have dealt with under this new Parliament—the second bill—that has an inadequate regulatory impact assessment. That is just unacceptable, and I find it absolutely extraordinary that a brand new Minister in a brand new role has not seen fit to do a proper process around something as important as this.

What nobody has taken into account in respect of this bill is the little bit that has been included at the end of the explanatory note under the Small Business Advisory Group comment: “Consideration could be given to evaluating the outcomes of this legislative change with a view to extending it to cover all employers in the future.” That is the real plan. They have even put it into the explanatory note. So this will not even be a small employer or small business policy; the National Party plans to extend this to every employer in this country.

The reason the National Party is doing this under urgency is that it does not want the public scrutiny. It is very, very nervous of taking this out to the public and letting the public have their say, because it knows perfectly well that the vast majority of people who would submit on this bill would oppose it. The reason they would oppose it is that they know the sophistry behind the argument around new migrants and around young people.

Sitting suspended from 12 midnight to 9 a.m. (Friday)