Trans-Tasman Proceedings Bill

on behalf of the Minister of Justice: I move, That the Trans-Tasman Proceedings Bill be now read a third time. This bill is an important milestone in the creation of a comprehensive new regime to deal with court proceedings and regulatory enforcement across the Tasman. It implements in New Zealand the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement, which was signed in 2008. Together with its Australian equivalent, also called the Trans-Tasman Proceedings Act, this bill will streamline the resolution of disputes with connections to both New Zealand and Australia.

As personal and business connections between countries increase, the activities of individuals and businesses are increasingly likely to be affected by more than one legal system. Uncertainty about which court will hear a dispute or whether a person will be able to enforce a judgment in another country causes difficulties for both individuals and business. Addressing those issues between New Zealand and Australia is obviously a key plank in progress towards a single economic market.

This level of cooperation between two countries on cross-border civil justice issues may be unparalleled anywhere in the world. If it proves successful, it may even be looked at as a model of what can be achieved between jurisdictions. The high level of confidence each country has in the other’s legal system—and regulatory system, by the way—and our common legal heritage has allowed us to push the boundaries. Most countries do not, for example, enforce another country’s penal laws. The two pieces of legislation will make an exception to that general rule and allow certain criminal fines imposed under one regulatory regime to be enforced in another, in the same way as a civil judgment debt. Criminal fines play an important role in encouraging compliance with regulatory regimes. Improved enforcement of regulatory regimes that affect the integrity, effectiveness, and efficiency of trans-Tasman markets will deliver benefits to both countries.

The sort of regulatory regimes this legislation will apply to include New Zealand’s Commerce Act and the Australian Trade Practices Act. The benefits of this new regime will span the range of interactions New Zealand has with Australia and its legal system. Those who will benefit extend from individuals involved in family proceedings and consumer disputes to major New Zealand corporations operating in Australia.

Processes for effective and efficient resolution of disputes are essential to support the closer economic relations agreement, and the initiatives that sit under it. We want New Zealand businesses to be able to operate in Australia and deal with Australian businesses with confidence. Businesses need to know that if a dispute arises it can be heard by the court most appropriate to hear it, or by the court they agreed would hear it. Businesses need to know that they can readily obtain interim relief, such as a freezing order, if they need it, and they need to know that if they obtain a final judgment, it can be enforced effectively even if other parties’ assets are located in Australia.

After the passage of this bill, the New Zealand and Australian Governments will continue to work closely together to make the necessary supporting regulations, and to bring the arrangements into force at the earliest opportunity. I commend the bill to the House.

I too am very pleased to see the final reading of the Trans-Tasman Proceedings Bill. The bill certainly has generated a lot of work between the two countries, and the agreement was able to be signed on the anniversary of the signing of the Closer Economic Relations agreement, which saw the original agreement on trans-Tasman court proceedings and regulatory enforcement signed. I made the point during the first reading that I was the one who had had the privilege of signing that agreement on behalf of the New Zealand Government, and it certainly was a privilege to do so because the steps that we were taking as two countries were quite ground-breaking steps. We had confidence in each other’s judicial and regulatory institutions in order to sign off on such a significant piece of work. The legislation itself follows on from not only the signing of that agreement but also the significant amount of work undertaken by the working group, represented very well on both sides of the Tasman, which preceded the agreement.

I found an article that was written at the time of the signing of the treaty by the Australian Attorney-General, Robert McClelland, and me, back in 2008. This particular article said that the signing of that treaty, once its advent was implemented by legislation, “would make life a lot easier for businesses which now face a time-consuming and expensive process when dealing with trans-Tasman legal issues. Under the existing law, fines and civil penalties imposed by New Zealand courts cannot be enforced in Australia, and vice versa. Prosecutions under Australian law cannot be brought in New Zealand, and vice versa. Criminal proceedings initiated in one jurisdiction probably cannot be served in the other, although no one is absolutely sure about this, but civil penalty proceedings in most cases can be. Orders made under regulatory laws in one country are not applicable in the other. What all this means is the moves made over the past 25 years towards trans-Tasman harmonisation of competition, consumer, and other laws meet an abrupt brick wall when parties seek to utilise the enforcement might of the courts.” It is that “abrupt brick wall” that we are breaking down with the legislation we are passing today. I think it will be of significant benefit to businesses and individuals on both sides of the Tasman.

I also reflected during the Committee stage on a contribution made by the law firm Chapman Tripp in relation to concerns it had raised in respect of the potential departure from the longstanding rule that domestic courts do not enforce penal laws of foreign States, because to do so is contrary to the principles of independent sovereignty. I thank the Minister for Building and Construction on behalf of the Minister of Justice for addressing that issue in his third reading speech. Unfortunately he did not manage to do it during the Committee stage, but he touched on it in his third reading speech. He might not have been aware that he was doing that, but he answered the question about the significance of that change and why the Government had chosen to go down the pathway of breaking with an element of tradition in that regard. However, he did not manage to really explain it to the House, so perhaps the next speaker for the Government might like to put on the record of the House why there is a difference between civil pecuniary penalties and criminal penalties.

The example that is used in this particular article by Chapman Tripp, which I think is worth raising again, and which I hope the Government responds to, is that the distinction between civil and criminal penalties may amount to nothing more than what I described in the Committee stage as dancing on the head of a pin. The example that Chapman Tripp gives is “a fine under section 40 of the Fair Trading Act is a criminal penalty, and a fine under section 80 of the Commerce Act is a civil penalty.” I ask why one is an “opt-in” and the other an “opt-out”. That is a very simple question, and I can see that the next speaker for the Government, Chester Borrows, is really excited about the opportunity to be able to respond to that question. He looks set to explain to the House why it was decided that we would have on the civil penalty side a “negative list” approach—that is, the penalties will be directly enforceable unless specifically excluded by Order in Council—and that the regulatory regime on criminal fines would be directly enforceable only if declared to be so by Order in Council, which is the “positive list” approach. I am looking forward to quite a major contribution to the advancement of the law by the Government, stating for the record why there is a difference between the two approaches. I can see that the member opposite is looking forward to taking up that opportunity.

The other question I asked the Minister during the Committee stage was about the differences in law on both sides of the Tasman. It was the question of whether the regulatory regimes, because there are some nuanced differences in some instances but major differences in others between some of our competition laws in particular, would have a situation where the de facto operation of this arrangement would mean that the Australian law would apply in New Zealand and vice versa. I think that is a really good point to raise, and as I said in the Committee stage, I do not necessarily agree with the proposition that Chapman Tripp put forward in the article I have here. Personally, I think there are reasons for having different approaches on regulatory regimes, and sometimes a stepping stone towards a more coordinated and mutual regime is having the enforcement recognition that we have under this Trans-Tasman Proceedings Bill. I am not completely struck by the argument, but I would like the Government to put on the record why it has adopted this particular approach so that those who take a great interest in these matters can understand.

I am sure members of the legal profession who will utilise this legislation at some stage in the future will look back at the contribution of various members to this debate, and I know they will look most interestedly at Chester Borrows’ contribution—

💬 Charles Chauvel: And the courts.

—and the courts may look as well—because if there is any doubt about the law, they will look at the history behind this bill and at the Government’s thinking. Chester Borrows, as the chair of the Justice and Electoral Committee, is all over the detail of this legislation and will be able to explain to us such issues as, for example, whether “The New Zealand Commerce Commission is unlikely to accept arguments that a New Zealand penalty should be reduced to take account of penalties imposed in Australia in respect of the same or related conduct. Likewise for the Australian Securities and Investment Commission.” Was that at the forefront of the Government’s mind in its thinking around the adoption of the particular form of legislation? We also heard in the Committee stage about the changes that were made by the select committee. It adopted a purpose clause in line with the Australian legislation that has been recently passed. I commend the select committee for its excellent work, and that is why I am looking forward to the contribution from the chair of the select committee in that regard.

I thought I would close with reference to David Goddard QC, whom I know my colleague Charles Chauvel mentioned in his first reading speech. This is also mentioned in the article I referred to at the beginning of my contribution. David Goddard was a member of the trans-Tasman working group, and he described the changes as the minimum level of coordination required to achieve the goals of reducing the cost of trans-Tasman dispute resolution and enhancing the effectiveness of regulatory regimes. He concluded that the significance of the reforms should not be underestimated, as they represented the furthest-reaching such proposals between any two sovereign States with separate legal systems. That is an incredible endorsement of what we are able to achieve in Government and what this Government has been able to put in legislation. I commend the bill to the House.

It is an unusual situation when both sides of the House find themselves in agreement on legislation, and in agreement on anything, I guess. So that is, if nothing else, cause for us all to reconsider our positions. The work that was done within the Justice and Electoral Committee on the Trans-Tasman Proceedings Bill was very strong. A magnanimous gesture was made across the House in accepting that both sides would be looking again at their positions.

A very insightful question was asked by the previous speaker, Lianne Dalziel. I understand that there is an arrangement as far as recovery of criminal debts by way of trans-Tasman fines is concerned, but I am sure that any lack of clarity will be cleared up by the erudite Minister of Justice when he speaks in the “fourth reading” of this bill.

Members on this side have been pleased to support the Trans-Tasman Proceedings Bill through all its stages in Parliament because we think it is a good bill. It reflects, as has been noted, the very hard work of the previous Labour Government, and in particular that of my colleague the Hon Lianne Dalziel, who was Minister of Commerce at the time that the agreement the legislation is based on was reached.

This is legislation that truly benefits business. As far as this Government’s record is concerned, the simple re-enactment, or continuation of the enactment, of legislation largely originated by Lianne Dalziel, when she was either Associate Minister of Justice or Minister of Commerce, has constituted all of its meaningful pro-business law reform agenda. It is worth noting that that is actually the case. For all the rhetoric, for all the dog whistling about laws to extend the fire-at-will period to all businesses and the like, that sort of legislation will not make a difference to business in reality; the substantive reform, the pro-business law reform programme, is a continuation of the work of my colleague. I want to put that on the record of the House fairly and squarely.

The other matter that I want to refer to up front is the inappropriateness of this legislation going through the House under urgency. There is no justification whatsoever for doing that. Although there is multiparty agreement on the appropriateness of the legislation and its importance, and, certainly, members on this side are pleased to see the legislation finally being progressed, the procedure adopted here is an embarrassment. The Minister in the chair during the Committee of the whole House, the Attorney-General, clearly had had the job foisted on him. He did not know the answers to questions on the Government’s programme to allow the Governor-General, through clause 51, to extend the Act to certain tribunals and courts in Australia. He simply did not know the answers to significant questions. The Committee should have heard those answers and they should have been placed on the record.

I do not blame the Minister for that. He did a good job in the circumstances. But he did have officials present, so he could have asked them a couple of questions so that he could enlighten the Committee on what the Government intended by further extending the scope of the bill—which clearly is a good thing. That is what happens when legislation is rushed through under urgency, when the responsible Minister is not available to sit in the chair during the Committee stage and we have two substitute Ministers in the chair. They are simply not in a position to address the important questions. I would have hoped that, on a measure as important as this—particularly when the Minister for Building and Construction, who gave the third reading speech in the House today, claims to be very pro-business—we might see a slightly more respectful process in this House. Unfortunately, under this Government, that is a vain hope.

💬 Simon Bridges: Speaking of vain.

That is an interesting interjection from a member opposite who is not known for his humility, let it be said.

It is true that it is good that the bill will allow a broader range of judgments to be registered and enforced between Australia and New Zealand. It will allow court appearances by video link between the two countries, and it will allow the enforcement of regulatory regimes supporting trans-Tasman markets. All of this will make the doing of business and the resolution of disputes across the Tasman far simpler and more affordable.

When I was working in the Sydney office of my old law firm, one of the constant frustrations for businesses and individuals doing business across the Tasman was that the integrated single economic market was going along apace and people were very much in favour of it, but when a legal dispute occurred between people based in, say, South Australia and New Zealand, there was no effective way of enforcing the judgment unless it was a dispute that could be resolved in the Federal Court of Australia on the one hand and the High Court of New Zealand on the other. Then a reciprocal enforcement procedure was introduced, thanks to work done by Geoffrey Palmer back in 1989-90, I think, when there were amendments to the High Court Rules and the rules of court of the Federal Court of Australia. If one was lucky enough to have a dispute case brought in the Federal Court on a federal matter in Australia, one could achieve some sort of mutual enforcement. But if the dispute was in a state court, or in any other court in the federal regime, one was essentially prejudiced. We are fixing that, finally. That is a desirable outcome, and that is why Labour substantially supports the bill.

On the issue of economic catch-up with Australia, which is a mantra we hear a lot in this House, and outside it, these days, we need more of this sort of legislation to fix the real productivity issues that occur as roadblocks to trans-Tasman business. As I say, I would like to see more of this sort of substantive reform; reform that is well-thought-through and evidence-based, reform of the kind that was advanced so strongly by Lianne Dalziel and Michael Cullen in the previous Government, rather than dog-whistle slogans about increasing productivity and trying to catch up with Australia, which unfortunately is the record so far of members opposite.

I will give an example of how the measures in this legislation are positive. An Australian-based company—“S”—is offering investment schemes to New Zealanders. It is registered as an overseas company in New Zealand, and it has appointed somebody to handle its legal proceedings here. It makes a misleading statement in one of its documents. “S” is prosecuted under the Securities Act, resulting in the imposition of a fine by the court. Well, under the current system, because “S” could withdraw all its assets from New Zealand and move them back to Australia to evade enforcement, it is not possible to enforce any fine. That is a waste of legal costs for all involved, and, in fact, people do not even bother with legal action in these circumstances, and there is no accountability under the laws of New Zealand, and that has a detrimental effect on respect for the legal system. Under the legislation proposed, our Securities Act would be more enforceable in Australia. The fine against the company would be as enforceable there as it would have been if a civil judgment had been made in a New Zealand court. That has to be a good thing, and it is something that certainly ought to be supported across the House.

At the moment, as I have said, only final money judgments can be enforced on a trans-Tasman basis. There is no ability to get interim relief. The decisions of the tribunals of one country cannot be enforced in the other, and even though the Minister could not tell us which tribunals the Governor-General will extend the legislation to, we can assume that there will be such tribunals. The rules to determine which countries’ courts will decide a matter are confusing, and neither civil pecuniary fines nor criminal fines can be enforced in a country other than the one they were imposed in. These are the sorts of real barriers to productivity that exist, these are the sorts of problems that ought to be addressed, but, instead, we see this Government trying to remove the rights of people to fairness at work. It says that that is the way to achieve better productivity on this side of the Tasman. Well, we know that is nonsense. We know that the way to get proper productivity and proper business law reform to the benefit of our nation is to advance bills like this. It is a shame that this one is being done through urgency, without the responsible Minister present to tell us the answers to some important questions. Lianne Dalziel has posed them, I have tried to pose some of them, and we have not heard answers, so we are not in the best space possible. None the less, the bill is finally going through and that is something we should be pleased about.

It is good to speak on the third reading of the Trans-Tasman Proceedings Bill. I spoke yesterday about the broader Australian relationship that this bill is a marker of and a facilitator of, if you like, in that it enables us to keep pace with the ever-closening relationships, business deals, and so on between us and Australia. I want to hone in, not in particular detail, on some of the things that this worthy bill does, in particular on the area of service. Service of proceedings is perhaps something that most people will not think twice about. In fact, it is a very interesting area, practically speaking, in principle, and conceptually. As a law clerk and first-year solicitor, I well remember having to serve proceedings by dumping them on people’s doorsteps and the like. I was the principal debt collector for State Insurance in the firm I worked for, dealing with car accidents. Some of these cases went across the Tasman—and I am sure it is even more the case now than it was in 2000 and 2001—because people leave the country, they move over there, and the like. I can remember the kerfuffle that one would have in trying to serve these people and deal with things effectively, and then, if one got judgment, in enforcing that judgment across the Tasman, which is another practical part of this bill.

The bill simplifies arrangements and the processes that we have with Australia in relation to service and in relation to enforcement of judgments. I have talked about some pretty simple examples—you know, someone crashes a car and they then take off to Australia. But of course we know that this will be just as important—probably more so—in very complex, large business transactions where we as a country and Australia as a country have every interest in keeping the relationships going and deepening those business relationships so that both sides of the Tasman can become more prosperous. Perhaps at first blush this is not the most exciting bill, but it is a very worthy bill and it is a marker of the ever-closer relations and mutual success we have with our trans-Tasman partner, Australia.

Tēnā koe, Mr Assistant Speaker. Kia ora tātau. Mōrena ki a tātau i tēnei ata. I thought it would be appropriate to provide the Māori Party perspective on the Trans-Tasman Proceedings Bill and say from the outset that we are supportive of its intent. My job is to raise a couple of the issues that were raised through the submissions provided to the Justice and Electoral Committee and give some overview from our perspective.

The passage of people across the Tasman is a phenomenon that appears to have also included Māori in its wake. In 2006 a report, namely Māori in Australia: Ngā Māori i Te Ao Moemoeā predicted that between 115,000 and 125,000 Māori are living in Australia. We in the Māori Party have been over to Australia, having been asked by whānau members here to make contact with Māori there, and we can see the full extent of the challenges our people face in trying to maintain Māori cultural practices and in nurturing their sense of Māori identity in Ahitereiria, te whenua moemoeā. Despite the best attempts and efforts of whānau to bring loved ones home, it is fair to conclude that a significant number of Māori will continue to call Australia their home away from home.

This bill recognises, therefore, that there has been a significant increase in the movement of people, assets, and services between New Zealand and Australia. Almost 450,000 New Zealanders live in Australia, and I am told that about 60,000 Australians live in New Zealand.

Given the fact that Māori have been attracted across the Ditch to Te Ao Moemoeā, it was somewhat of a surprise that there were no submissions whatsoever from iwi during the select committee process. Mind you, the select committee received a grand total of three submissions only, I am told, from interested groups and individuals. However, one person by the name of Siaosi Tofi raised the concern that the bill will affect Māori interests and unfairly disadvantage Māori. Siaosi asked that the select committee investigate properly the potential effect of this legislation on Māori, and its implications for them. In particular, the submitter was concerned that Australian judges might decide civil disputes concerning Māori land or cultural and intellectual property.

The impact of the United Nations Declaration on the Rights of Indigenous Peoples was also mentioned. As members will be aware, the New Zealand Government has recently expressed its support for the Declaration on the Rights of Indigenous Peoples, and the Australian Government expressed its support for it in April 2009. The question that Siaosi Tofi asked was: “Might there be a situation where the trans Tasman agreement and this bill come into direct conflict with the UN declaration on the rights of indigenous peoples to which NZ is a signatory?”. The Ministry of Justice, I am pleased to say, addressed the concerns raised by Siaosi. Clause 24 of the bill and section 19 of the Australian Trans-Tasman Proceedings Act adopt a common forum or give-way rule, as between Australia and New Zealand. This should ensure that where the New Zealand court is more appropriate to determine a proceeding, that proceeding will be heard here and not in Australia. This will assist New Zealand - based litigants, including Māori. Although the range of enforceable Australian judgements is being expanded, this will not have an adverse effect on the issue of Māori land.

Nevertheless, despite the submission of Siaosi Tofi, this bill is primarily focused on the challenges posed by trans-Tasman trade relationships. The level of investment in goods and services brings about a greater number of disputes involving individuals or businesses with a cross-border element. This bill aims, therefore, for the dispute resolution processes to be cheaper, more efficient, and less complicated. This bill is supposedly intended to deliver tangible benefits to individuals and businesses in New Zealand and Ahitereiria. We therefore support it here at its third reading.

It is a pleasure to stand and take a call on this bill. As I said earlier today, it is good to see a bill that adds value before the House, because certainly that has not been the case with much of the legislation we have seen over the last week or two, or indeed since National came into Government. But I will get back to this bill.

I will go through the history of the bill, because it does show a commitment. It shows the commitment of two nations working together for what will only enhance legal proceedings and civil justice systems in both countries. The Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement was established back in 2003 by the Prime Minister, Helen Clark, and, of course, the Prime Minister of Australia, John Howard, so we see there that it was certainly non-partisan, and that two nations, two Governments were working together for the greater good. That working group reported back in December 2006 and made many, many recommendations, which included the use of video technology to allow witnesses to appear while overseas, and an increase in the types of judgments that could be enforced in each country.

The agreement was signed in Christchurch by Lianne Dalziel and by Robert McClelland, Australia’s Attorney-General, and that happened in July 2008. I think it is quite significant that it happened in Christchurch, which of course is Lianne Dalziel’s home town, because she had put so much time and energy into this work. It was very fitting that Lianne had the opportunity to do that; I know that for her it was a very important part of her role at that time.

That agreement, which I have to say that I was mistaken about—which was pretty ridiculous because I was on the Justice and Electoral Committee—was covered by the Law and Order Committee. When the committee looked at the agreement, it looked at the number of benefits that would flow by simplifying trans-Tasman court proceedings, by expanding the range of enforceable judgments, by improving the enforcement between Australia and New Zealand, by supporting the success of the trans-Tasman relationship, and by avoiding the incentive—and I think this is really important—for people to move themselves or their assets to another country, in order to put themselves out of the range of accountability. That is really a large part of the justice measures we have seen from this mutual cooperation—there is no other way to put it—of the Trans Tasman Proceedings Bill.

I want to correct what I said earlier. I mistakenly made a remark that was perhaps not very complimentary in terms of the chairing of the committee. I acknowledge Chester Borrows, although at times I certainly do not agree with some of his views, and certainly do not lately, when looking at his and his party’s views on dealing to employees and taking away employment rights in New Zealand—and indeed human rights, if we look at the 90-day “Sack at Will Act” that will be extended to cover all employers in New Zealand. Such things certainly do not bring about a feeling of warmth or working together from this side of the House. I was very disappointed in Chester’s speaking out about that at that stage, but certainly with this bill he chaired the select committee very well.

I know that a number of amendments were recommended by the select committee. As Simon—what is Simon’s other name?

💬 Moana Mackey: Bridges.

As Simon Bridges—affectionately known to everyone as Clark Kent—

💬 Moana Mackey: Or Gok Wan.

—or Gok Wan—said, it was not the most exciting—

💬 Jacinda Ardern: That’s way too flattering.

People are saying that Gok Wan is way cooler than Simon Bridges, but that is not the point; I think he is making an honest attempt to look cool and trendy, and we should acknowledge that. But as Simon Bridges said, the Trans-Tasman Proceedings Bill is probably not the most exciting bill that we have had before the select committee, but the committee is hard-working—well, most of the members are pretty hard-working; certainly the Labour members are—and the bill is important. It is a very, very important bill, and it enhances the relationship that we have with Australia.

I will perhaps again go through a couple of the amendments that the select committee made. There were not many submissions to the select committee, but the submissions that were made and the feedback the select committee received were very, very productive and helpful. I certainly think that there was a will from everybody on the select committee that this bill needed to be brought forward in the best way possible to enhance our relationship with Australia, and to see that people were held accountable and could not simply use a move to Australia to avoid that accountability. Of course, people are moving to Australia in droves under this Government, even though the Government said they would not. Most people do not go to Australia to avoid accountability; they go to Australia because this Government has not created any jobs or invested in any training here—

💬 Moana Mackey: Or increased wages.

—or increased wages—despite all the rhetoric and despite all the promises. Although the majority of people are going to Australia, especially now, because there is no hope of them getting support for their families, they are probably going for a quality early childhood education, as well, as we see that being denigrated here. Of course, many other things are causing concern for New Zealanders and persuading them to go across the Tasman. But a small number would travel to Australia to avoid being accountable for any misdemeanours they have done in New Zealand, and of course both sides of the House find that totally unacceptable, as indeed did Helen Clark and John Howard when they started the working group that led to this bill. That is why it is good for everyone to acknowledge the work that was done in the earlier days—not in the hugely early days but certainly in the earlier days—and also the work whereby this bill is now coming into effect.

I think it is worth acknowledging some of the work that the select committee did. I also acknowledge the very hard-working staff of the select committee; they do a fantastic job. We have a really, really good clerk and support people. I also acknowledge the officials, who gave us very good advice. That was very much appreciated, not only by the chair but by all members of the committee. Having the ability to send back to the House a very comprehensive report that certainly improves the bill can happen only when we have the support of good select committee staff, and of course of advisers working as a team alongside the members of the committee. In this instance, that was certainly the case.

Some of the improvements that the select committee recommended were about applications for a stay of proceedings, the power of the New Zealand court to decline jurisdiction, the procedural rules of the court, the service of initiating documents in Australia, and the defendant’s address for service. As the bill was introduced, it did not expressly allow for a defendant’s address for service to be changed to another address in either Australia or New Zealand. I am pleased to say that that action is now able to happen under the bill, because issues were raised, canvassed, and improved during the select committee process. There are also issues around the power of an Australian court or tribunal in New Zealand, to permit an Australian court or tribunal to exercise—

The ASSISTANT SPEAKER (Hon Rick Barker): I regret to advise the member that her time has expired.

Kia ora, Mr Assistant Speaker Barker. Kia tātou hoki huri noa i tō tātou Whare. I am pleased to stand and take a call on the Trans-Tasman Proceedings Bill. As previous speakers have noted—or as I, at least, would like to characterise it—this bill puts into civil and technical jurisprudential language the common-sense relationship that New Zealand is interested in securing, stabilising, and sustaining with Australia.

We have long been committed to a single economic market between our two countries. In fact, that commitment was the subject of our Prime Minister’s state of the nation speech earlier this year, and it has continued to be demonstrated by a number of bills and other work that our National-led Government is doing. The trans-Tasman relationship is extremely important to New Zealand in many dimensions.

This bill places on a very sound and comprehensive platform the civil jurisdiction between our two countries. It enhances international legal cooperation, which is a vital part of the Government’s broader economic agenda. As we all know, businesses require certainty in the way that they carry out their business. The role that the law and civil jurisdiction plays is a critical part of that certainty. This bill, as speakers have discussed, provides that certainty.

Australia is often the first stop for New Zealand businesses looking to expand offshore and to develop overseas markets, but getting to grips with different federal and state legislatures can be rather complex and difficult. This bill provides for the establishment of one seamless set of rules that will allow businesses, whether they are geographically located here in New Zealand or in Australia, to be able to be confident that they understand what their liabilities are and what remedies may be available to them in the conduct of their business.

The bill is an important step towards closer cooperation and integration of the Australian and New Zealand civil justice systems, and it enhances the legal cooperation between our two countries. It shows that we have greater confidence in each other, not only at a business level but also in terms of the judicial and regulatory institutions that operate between our two countries.

Mr Bridges spoke about his example of someone who flees his or her responsibilities here in New Zealand. In the past that person has been able to seek protection, if not invisibility, by relocating him or herself to Australia. At that particular level of criminal malfeasance, that will no longer be possible, at least in the civil sense.

My colleague Te Ururoa Flavell talked about the many, many Māori who have relocated to Australia and set up successful businesses there. One often wishes they would come home to New Zealand and contribute the business nous that they have established. This bill provides a platform to ensure that those businesses continue to flourish, and that the across-the-Tasman relationship that goes on every day as Māori seek to cement and continue their whakapapa ties with New Zealand is supported by this legislative context as well.

There will no longer be any possibility of avoidance between our two jurisdictions of Australia and New Zealand. That gives comfort not only to businesses but to travellers on both sides of the Tasman. Since the Australia and New Zealand Closer Economic Relations Trade Agreement was signed 26 years ago, when many of us in the House were but 5 or 6 years old—no, no—but since the agreement was signed 26 years ago—

💬 Te Ururoa Flavell: Oh, now.

Obviously I was not able to get that one past my colleague Te Ururoa Flavell, but the rest of the House seems to agree on the lack of ageing amongst many of us here. Since the agreement was signed a generation ago, many other steps have been put in place to secure the relationship between Australia and New Zealand, and the Trans-Tasman Proceedings Bill is yet another example of that.

There has been good progress on the single economic market between Australia and New Zealand. We have worked towards, and are making good progress on, a single cross-border insolvency proceeding. Another key area is in progress on the alignment of accounting standards for profit entities, the establishment of an accounting and auditing standard, and the establishment of infrastructure that will mirror that of Australia, so that we will have not only a happy legal fraternity but also an equally happy accountancy fraternity, as those professionals see that significant legislation incorporated into the relationship between New Zealand and Australia. Another key area is in the potential for mutual recognition of auditors and financial advisers.

So, as we can see, we are steadily and incrementally putting in place a strong foundation for professional relationships between Australia and New Zealand. The Trans-Tasman Proceedings Bill is yet another example of that. I commend this bill to the House. Kia ora.

It is my pleasure to speak on the Trans-Tasman Proceedings Bill. I was a member of the Justice and Electoral Committee, which considered this bill. I have to say that with bills like this, one often sees a select committee at its best. It is simply a matter of making sure that we have got all of the nuts and bolts worked out. This bill has traversed both a Labour Government and now a National Government. I point out that a piece of work like this bill has not come together simply in the past 12 or even 24 months. In fact, this bill results from a work programme that really, if we went back to its foundations, we would find began under Helen Clark. I think that that was in 2003 in conjunction with John Howard—how things can change—and eventually, through an agreement signed by Lianne Dalziel in 2008. I think that was an appropriate commentary on where we are currently with our closer economic agreement with Australia, and how that is now becoming incorporated into so many pieces of our legislation and our legal framework as New Zealand’s ties with Australia become closer, and the borders between the two become weaker and weaker.

The Minister has already pointed out that the primary aim, which is to simplify the resolution of legal disputes that traverse across trans-Tasman boundaries, is essentially to try to reduce the cost and complexity of trans-Tasman litigation, and I think that is something very few people would hold any objection to. But I also point out that in the wider context of New Zealand’s closer legal relationship with Australia, and both countries’ attempts to streamline and create greater efficiencies in acknowledgment of the globalisation we are all now subject to, we still maintain, obviously, our own sovereignty, and our own right to make decisions that reflect the New Zealand context when it comes to our legal obligations in consulting with our Australian counterparts under various treaties.

That was probably demonstrated most recently in the decision that the Minister for Food Safety made around folate. The food safety legislation sets out that the Minister is obliged to consult with his or her Australian counterparts to ensure that we comply with our agreements in that area—because, again, that is another area where we try to streamline. The Minister demonstrated that New Zealand can make its own decisions. Labour would argue that she made absolutely the wrong decision, and an abhorrent one, at that, to decide not to introduce folate into bread, and we will suffer the consequences of that, but it probably, again, demonstrates the point that New Zealand still maintains a level of sovereignty over those mutual agreements and treaties. I do not think that it was the best way to prove that point, and we will continue to suffer for that. But it is just an example that I thought would be timely to raise.

I will go over some of the points in the bill that demonstrate how we have maintained the balance in ensuring the key elements of our justice system are maintained in the way that this legislation will work. Nonetheless, it is a significant piece of work. David Goddard QC, who was originally a member of the trans-Tasman working group, said that these are the furthest-reaching proposals between two sovereign States with separate legal systems. So let us be under no illusion; they are significant. A lot of work has gone into them.

The working group reported in 2006, and amongst its recommendations it delved into how New Zealand and Australia would apply differing rules around video technology. Since those recommendations have been made, we have introduced earlier this year our own legislation on the use of audiovisual link technology in courts. I think we got the balance right eventually. Members will recall that there was a considerable stoush in this House over whether the extension of the use of audiovisual link technology had gone too far, but I am very pleased a compromise was reached and I think we got the right outcome.

💬 Hon Simon Power: It wasn’t a stoush; it was a good debate.

I accept, I say to the Minister, that “stoush” may be too strong a word and I acknowledge the fact that he made a considerable concession, from his perspective, and I appreciate that. I think the words we use in this House are “robust debate”. In respect of audiovisual link technology in this particular bill, the select committee made it clear that the Courts (Remote Participation) Act will not apply to remote appearances made under this bill. In fact, the trans-Tasman evidence regime will operate in parallel and will not override or be subject to the Mutual Assistance in Criminal Matters Act. It was important, given the fact that the select committee had dealt with those pieces of legislation, that it ensured there was clarity around that.

But what are the main provisions of the bill? Essentially they can be drilled down into seven parts, and I want to traverse some of those briefly. The first is that when civil proceedings are commenced in New Zealand the bill provides that an initiating document for proceedings may be served in Australia as well. There are three exceptions to this but each of those is reasonable. Some other members of the House have already talked about the kinds of circumstances that might arise from civil litigation, for instance, over the sale of a house, etc., where the seller may have moved overseas. This now means that if those civil proceedings related to New Zealand began there, that initiating document then can still be served to an individual based in Australia. I think members would have to acknowledge that that can be commonplace now, given the state of movement between our two countries.

The second key point in the legislation is that a defendant in civil proceedings can apply to have the proceedings heard in an Australian court, with certain criteria met. That was one of the changes that the select committee made. We wanted to make sure that the bill was consistent over where proceedings were heard. We wanted to make sure that a person served in Australia for New Zealand proceedings can apply for a stay of proceedings on the grounds that the matter should be dealt with by an Australian court. That was about ensuring consistency with the other subparts in the bill.

The third key point relates directly to the provision that a party to proceedings commenced in an Australian court may apply for interim relief in a New Zealand court. The fourth is around remote appearances and remote evidence, which is covered by the Evidence Act, and I have already clarified the hierarchy of legislation in that regard. Then the fifth is the recognition of enforcement in New Zealand of specified Australian judgments. This is quite an important piece of the bill; it provides for the enforcement of Australian judgments in New Zealand, and goes beyond just final monetary judgments. There was some discussion in the select committee about how this related to guardianship. We had some very important technical submissions around this, and I thank those submitters who made those contributions to this bill.

Those probably cover the most significant parts of the bill. It was obvious when the select committee was hearing evidence on this bill and considering it in detail that at the same time officials were working alongside Australian counterparts to make sure we had married up both pieces of legislation accurately. So a lot of the changes made at select committee probably bear out that we were at that point in the process.

In conclusion, I think that this demonstrates an important piece of work that shows that we do have to acknowledge the greater transience between Australia and New Zealand. Family relationships and legal relationships cut across the borders of Australia and New Zealand more and more, and our legal systems need to demonstrate that. But at the same time we need to make the decisions that are right for us as a country.

Bill read a third time.