Crown Minerals Amendment Act 2013 Amendment Bill

Good morning to the Committee on this Thursday, 16 May. I am interested to see that we have a different Minister in the chair this morning, the Minister for Primary Industries. Perhaps the Minister responsible for this Crown Minerals Amendment Act 2013 Amendment Bill, Simon Bridges, has gone home to the Bay of Plenty to take care of really important issues. Clearly, there are important things going on in the Bay of Plenty, as you can tell from—

💬 Hon Gerry Brownlee: That’s out of order.

Well, get up and raise a point of order. Raise a point of order. There are obviously important things going on in the Bay of Plenty. One of the top stories in the Bay of Plenty Times this morning was the fact that a woman was fined $150 for driving through a red light while flossing her teeth. Perhaps the Minister of Energy and Resources has gone to take care of that.

We are talking about clauses 1 to 3 of the bill, which include the title and the commencement clauses. Last night when I was interrupted by midnight, I was talking about the fact that the Minister needs to be careful about the implementation date of this bill. If he is not careful—if he does not give it to a competent staffer, in other words—he could have the amendment coming into effect before the bill that it amends comes into effect. So the date of implementation of this bill is to be the day after the Royal assent, and if he is not careful and does not look after it, and if he does not have somebody with a little, yellow sticky label to bring it up for him on 25 May, he could find himself in an even more bizarre situation than he currently is.

Part of the debate this morning is about the title of the bill. We could call this the “My First Effort (Epic Fail) Bill”, because this has been a chapter of errors from the beginning, and it is the Minister’s first attempt to bring legislation to the House. So within 6 weeks, even before the Crown Minerals Amendment Act, which we passed a few weeks ago, has been implemented, we are here amending it.

We could call it the “Nobody Told Me I Had to Earn My Salary Bill”, because the level of incompetence around this procedure has been extraordinary. We could call it the “Contempt for Democracy Bill”, because it does not allow in this rushed process any due consideration by a select committee. We could call it the “Contempt for Parliament Bill”, because the disdain with which the Minister has held Parliament is of epic proportions. We could call it the “Contempt for Due Process Bill”, because it has, in fact, denied people who know more than the Minister—that is not hard—about maritime and international law, for example, the chance to submit on it. It could be called the “New Levels of Ministerial Incompetence Bill”, because of the ineptitude demonstrated from beginning to end.

But, probably, National members would like to call it the “How to Lose Friends and Aggravate People Bill”, because they are not keen to be here on a Saturday morning, even if the Minister should really go back to watching out for women drivers who drive through red lights while flossing their teeth. It could be called the “Strip New Zealanders of Their Right to Protest Bill”. It could be called—

The title and commencement are two very important aspects of the Crown Minerals Amendment Act 2013 Amendment Bill. My colleague Maryan Street was talking about the commencement issue, and there is a real issue about the potential for this bill to come into force to amend another bill that will not yet have entered into force as an Act. So it will create this dreadful situation where the original Crown Minerals Amendment Act 2013 is waiting in the queue to come into force on 24 May or 25 May, and this bill gets signed off this weekend, goes off to the Governor-General for the Royal assent, and is, in effect, in force but amending nothing. That just demonstrates the horrific position that the House has been put in with rushed legislation, without any sense of the issue having been properly managed. That is an issue.

The title of the bill is very concerning, because when the bill is passed it will then be known as the Crown Minerals Amendment Act 2013 Amendment Act 2013. I think we need to be more clever about how to abbreviate that. We could call it the “Crown Minerals Amendment Act 2013 Squared”, because we have both the word “Amendment” and the year “2013” together.

💬 Hon Maryan Street: This is not a typo.

It could have in brackets “(This is Not a Typographical Error)”. It could be called the “Crown Minerals Amendment Act 2013 (Times Two) Amendment Bill”, or the “Crown Minerals Amendment Act 2013 (Mark II) Amendment Bill”. We could, of course, call it the “Crown Minerals (Barbarised Information) Amendment Act 2013 Amendment Bill”, because if there is one thing that has characterised the debate on this bill, as, indeed, characterised the last one this House considered, it is the total lack of regulatory impact information that we have had. That is another unfortunate position that this House has yet again been put into, which we should not be put into. In this particular bill, as we know, there was a very important issue—a genuine doubt over the efficacy of one of the provisions in it, clause 14. So it might be appropriate to reflect that in the title of the bill.

Alternatively, to reflect another deep-seated concern about this bill, it might be called the “Crown Minerals (Not Taking Health and Safety or the Environment Seriously) Amendment Act 2013 Amendment Bill”. That goes to the heart of the issue that we have in this piece of legislation. It is already a pretty light-handed approach to health and safety oversight and environmental oversight when it comes to prospecting and the exploration of oil and gas, and this makes it even lighter. It underscores the very deep-seated concern we have that it simply does not take that issue seriously, at a time in this country’s history when workplace health and safety in particular is at the forefront of everybody’s minds. We have a disastrous record when it comes to that, and this industry, as much as it has come a long way in the last 20 or 30 years, still has issues about health and safety. In a former capacity I have represented the families of workers at coroners’ inquests in relation to deaths that have been caused in this industry because of issues largely about fatigue and the organisation of work.

So when the bill says that the Minister needs to provide some sort of oversight, in this day and age we should be expecting the best possible oversight and insistence that the Minister demands world’s best practice in health and safety and world’s best practice in environmental standards. But this bill does not do that. So inserting in brackets within the title “(Not Taking Health and Safety or the Environment Seriously)” would be an apposite reflection of what in fact this bill does—or, more accurately, what it does not do.

Another title might be the “Crown Minerals Amendment Act 2013 (Denial of Democracy in Parliament) Amendment Bill”, because that is also what we have had. Yet again, another piece of legislation is being rushed through the House under urgency, when actually taking a bit of time to consider it would not have caused any harm or damage to those who have an immediate stake in it. Those are issues that ought to be given very close and serious consideration in both the title and the commencement of this bill.

Colleagues have suggested a number of other titles for the Crown Minerals Amendment Act 2013 Amendment Bill. I think it should be called the “Crown Minerals Amendment Act (Ignore International Conventions, particularly the United Nations Convention on the Law of the Sea) Bill”.

Here is a very interesting parallel with another piece of legislation that the House has passed, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act. On that bill, we had a similar debate about insufficient account being taken of our responsibilities under the United Nations Convention on the Law of the Sea, and there it was about preserving and protecting the marine environment. Certainly, there are a number of matters in the exclusive economic zone Act that decision makers such as the Environmental Protection Authority have to take into account, and they include the protection of biological diversity, but that has got to be balanced off against economic benefits to New Zealand. Of course, these two pieces of legislation are parallel, because the Crown Minerals Amendment Act 2013 Amendment Bill, which we are debating today, is all about the allocation of block offers and space, whereas the exclusive economic zone Act is all about the applications for marine consents to actually do the extraction.

It is interesting that in both of them we have had this major issue with the Government failing to take account of the United Nations Convention on the Law of the Sea. Here in this bill that is because of clause 14, the extension of the no-protest clause, which the Minister introduced with his late Supplementary Order Paper into the principal Act. It is interesting that the Australian legislation has no equivalent. Certainly, there is a 500-metre safety zone around an oil installation—a well—but there is no provision of any safety zone around a vessel and there is a very good reason for that, which is that the convention does not allow for safety zones around vessels. That is in complete contrast to the provisions around oil rigs, where those are subject to the exclusive jurisdiction of States. But, as Duncan Currie noted in his opinion on the Supplementary Order Paper to the principal Act, if you have safety zones around vessels, that creates very confusing zones of coastal State jurisdiction around foreign-flag vessels.

So this Government, in this bill, is overriding the United Nations Convention on the Law of the Sea, and it shows the contempt with which the Government views international conventions. It is potentially passing legislation that it has no jurisdiction to do, yet this bill is being pushed through the House, and we have not had the benefit of the Law Society or of other submitters who could provide their informed opinion on the impacts of the bill.

So I think the bill should be called the “Crown Minerals Amendment Act 2013 (Take No Notice of the International Conventions like the United Nations Convention on the Law of the Sea) Amendment Bill”. That is quite a distressing step, because it is showing that New Zealand is risking being a pariah on the international stage, that the Government thinks it can pass legislation that applies on the high seas, and that it thinks it can ignore conventions that have been carefully negotiated, taking into account all of the interests of the parties. And why? To suppress the right to protest. That is despite the International Maritime Organization and others, and a whole raft of international treaties, recognising the right to freedom of association, the right to protest at sea, and despite the tradition that we have in this country of taking to sea to express our wish to protect our oceans against the dumping of waste, against drift-netting, and against nuclear testing. This bill is overriding that by extending the provisions in the principal Act to make it an offence to be within 500 metres of an oil exploration vessel and to impose the potentially quite stiff penalties of imprisonment and very severe fines.

Because it goes in breach of international law, this bill is a bad bill. It is undermining New Zealand’s reputation, as well as our protection of our oceans.

I move, That the question be now put.

It is a pleasure to be able to take my first call on the Crown Minerals Amendment Act 2013 Amendment Bill. I am particularly interested in the commencement clause of this legislation, because we are in—I do not know whether it is a unique situation, but it is certainly an extremely rare situation to be debating an amendment bill that amends an amendment Act that has not yet come into force. Obviously, there are questions about exactly how the commencement arrangements for this bill should work. As some of us are inclined to do, I delved into McGee to see whether there were any precedents for this situation, and I could not find anything. In the little time I had to have a look through it, I could not find anything, which suggests to me that it is an extremely rare situation for a Minister to get it so badly wrong the first time around that we find ourselves back here amending an Act that has not even been implemented yet.

There are a couple of issues that I think are worth having a look at. Yesterday we traversed the issue of a precise commencement date for the bill that we were debating, and the need for a bill to have a precise commencement date in it. You ruled, Mr Chairperson, that, say, for instance, taking it to a select committee was not precise enough to establish exactly what the commencement date would be for a bill. That leaves us in an interesting situation here where this bill, as most bills do, says that it commences on the day after it receives Royal assent. But exactly when should a bill that is amending an Act that has not yet come into force receive Royal assent? I think that is a fair question. That seems to me to be quite undetermined. It might be possible that the commencement date set out in this bill is out of order. I think it is difficult to determine exactly what the commencement date for this bill ought to be, because we are in this highly unusual situation where the principal Act—and I have no doubt that there will be plenty of calls on the principal Act clause—has not actually yet come into force. So I would be interested in your ruling on that, Mr Chairperson.

Of course, there is one possible option, and that is for the Governor-General to refuse to give Royal assent. That is an option that has never been used. It would be absolutely unprecedented for the Governor-General to refuse to give Royal assent, but it could be an option if the Governor-General looked at what the Government was doing and thought to himself: “Look, you’ve got this a bit out of order here. You need to have the principal Act actually in force before you can amend that Act.” Then it would be an option for the Governor-General to consider refusing to give Royal assent. It would be, as McGee says, “a remarkable—indeed a unique—event in New Zealand. No bill presented to a Governor or a Governor-General has ever been refused the Royal assent in New Zealand ...”. I wonder whether Simon Bridges’ stuff-up is really the time to be creating precedent in New Zealand. If a Minister who is so inept and so incapable of getting something as simple as this legislation right has made such a huge mistake, is that the time for the Governor-General to step in and do something that has never been done before in New Zealand? Maybe it is. I think it probably is not, but I think we have ourselves a very difficult situation here where we have no precedent around how you deal with the commencement of a bill that amends an Act that has not yet come into force.

We are also debating the title of the bill. Again, this title does not tell us very much. It tells us that it is the Crown Minerals Amendment Act 2013 Amendment Bill.

It tells us something—

💬 Moana Mackey: You couldn’t make that name up.

You could not make that name up, no. It does tell us something. It tells us that this is a highly unusual situation, and that Simon Bridges is an incompetent Minister. But I think that, you know, we really should have in the bill there the fact that, as it says in the general policy statement, some areas and omissions in the original Act have been identified. So it should be called the “Crown Minerals Amendment Act 2013 (Simon Bridges’ Eight Errors and Omissions) Amendment Bill”. I think that that would be a title that much more closely reflects what it is that Parliament is having to do here, which is essentially to walk around behind Simon Bridges and clean up his messes before the original Act, which he passed through Parliament, can even come into force.

Of course, what we know is that this is a bizarre extension of the anti-protesting regulations in international waters. I think there are numerous titles for this bill that could be considered—

Generally, when we get to this stage of a Committee debate, when we are talking about the title and the commencement and the principal Act, it is a very narrow debate, and it is generally a bit of a laugh. There is a bit of humour at some of the alternative titles that might be given to particular bill. I have heard a bit of that this morning. Some people have referred to this bill, the Crown Minerals Amendment Act 2013 Amendment Bill, perhaps more appropriately being called the “Total Disregard for Health, Safety, and the Environment Bill”, and that certainly is a very valid description. Some people have referred to it as the “Minister’s First Bill (Biggest Mistake in Parliament) Bill”. That is certainly an appropriate title. Others in the debate last evening referred to the possibility of it being called the “Who Came Knocking at the Minister’s Door Bill”, given that it is a huge puzzle to us not only why we are debating this bill at 9.20 on a Saturday morning, even though the calendar on the wall tells us it is Thursday night, but what the need is for this bill to have gone through all stages under urgency.

Well, the title does not give us any hint to that at all, as it is, except it is a very puzzling title. “The Crown Minerals Amendment Act 2013 Amendment Act 2013.”—it looks like someone got their finger stuck on a button on the computer and just did a repeat in error, or did a cut and paste, but it is not. If only that were the case.

This bill that we are debating now amends an Act that is yet to come into force. Like my colleague Iain Lees-Galloway, I looked through McGee to see whether there was any precedent for this. I had perhaps less time than he had—he had thought of the idea a lot earlier than I did—but I cannot find anything in the history of our Parliament that has an amendment to an Act coming into this Parliament and being debated before the primary Act has even been brought into force. It is absolutely unheard of.

If it was a genuine technical mistake or if it was a genuine error, then I think we might be a bit more lenient on the Minister Simon Bridges, but, actually, what he has done is chosen, in my view, to abuse the parliamentary process. He has not reflected it in the title and not reflected it in the commencement date of this legislation. He has abused the process of this Parliament because not only is he doing a couple of small, technical amendments that may well have been needed and may have been agreed to by all members of the House but also he has chosen to do wholesale changes to the primary legislation.

This brings him into a very difficult situation. It is specifically reflected in the commencement of the bill, clause 2: “This Act comes into force on the day after the date on which it receives the Royal assent.” Well, generally the Royal assent is straight after the bill has gone through the third reading. It gets shipped out through the appropriate processes and gets signed off—gets the Royal assent. Well, what happens if the Royal assent on the amending legislation occurs—and, therefore, this bill that we are debating now, comes into force—before the primary legislation comes into force? What position does that put Parliament in?

Of course people will say: “Oh, well, it may be just a matter of a few days.”, but, actually, in a matter of the law, and in a matter of big issues like health and safety responsibilities, like environmental considerations and responsibilities, or like financial liability, if there is a major spill—if there is some disaster that is impacted on by this Crown minerals Act—where would the liability lie? I think we would have a huge legal debate. I think this bill could be called the “Crown Minerals (Let’s Get Every International Lawyer Excited) Bill”, because this leaves itself wide open to some sort of challenge.

This is the area where we should be working in exactly the opposite direction. We should be giving security to the industry—that is clear. We should be making sure that the highest possible health and safety and environmental regimes are in place. This works in the opposite direction. We discussed last night in an earlier discussion about how the permit applicant does not even have to be able to prove that they have the health and safety, environmental, or financial ability to deal with the requirements of the legislation. This is bizarre.

I move, That the question be now put.

This bill, the Crown Minerals Amendment Act 2013 Amendment Bill, has, as others have said, been a highly questionable bill, and I want to touch on all three of clauses 1, 2, and 3 in my contribution now. First of all, I want to look at clause 3 and the amendments to the principal Act, because part of the reason we are here is to fix up a whole lot of mistakes that were made in the original bill when it was forced through. As others have so eloquently outlined to the Committee, we are in a very odd situation of having to amend a bill that has not yet come into effect, which is a very strange situation. But I just thought it was worth putting on the record what those mistakes are—what we are amending in clause 3.

💬 Hon Gerry Brownlee: No, we’re talking about the title.

Clause 3 is about amending the Crown Minerals Amendment Act 2013. We are talking about clauses 1 to 3. The mistakes made in the original bill relate to the definition of “underground gas storage facility”; references to “reserves” being changed to “resources”; extensions to existing petroleum permits; the addition of platinum to tier 1 permits, to make it the same as gold and silver; clarification of the application of the Crown Minerals Act 1991 to existing privileges; clarification of the proprietary status of permits acquired by the Crown; references to a dwelling change, because, as was so eloquently explained last night, we are going from a “dwelling house” as two words to “dwellinghouse” as one word—or the other way round, I cannot quite remember—and other “minor changes consequential” to the above. So those are all the mistakes.

But if I look at some of the more serious matters in this bill, I think I want to look at the possibility of changing the title and making a suggestion for that. Some of those things are perhaps about sloppiness, and about a Minister and a Government that just force through legislation without adequate scrutiny. But there are some changes in this bill that are very, very serious, and we talked about those last night at the relevant parts of the bill. They are making significant changes to permit processes—creating conditional permits, running real risks around health and safety and environmental matters—and, in Part 2, they are around covering the whole continental shelf area, which is an extra 1.7 million square kilometres. So these are serious matters; they are not just sloppiness.

Andrew Geddis in an article last night talked about sloppy and highly questionable lawmaking, so I would like to suggest that this bill be amended to be called the “Crown Minerals Amendment Act (Sloppy and Highly Questionable Lawmaking) 2013 Amendment Bill”, because it has both elements in this. It has both sloppiness and it has some very serious and highly questionable matters in this bill. Or perhaps, in more kind of day-to-day language, we could call it the “Crown Minerals Amendment Act (Sinister or Stuff-up or Both?) 2013 Amendment Bill”, because there are those two elements. So I think that people listening to this debate will be very concerned about this whole process.

I want to perhaps suggest another amendment to the name. We sat last night and went through the specifics of this legislation with a Minister in the chair who sat there and failed to answer one single question—not one—and they were serious questions. They were questions about the legality of what was happening here—questions about whether we were breaching international law, for example—but still the Minister of Energy and Resources sat there and he read his magazines, or at least he pretended to. So I would like to suggest another one, which is the “Crown Minerals Amendment Act (Refusal to Answer Questions) 2013 Amendment Bill”. I have never ever seen such a disgraceful performance by a Minister in the face of very serious questioning about important matters that relate to environmental standards, that relate to health and safety, and that relate to the legality of legislation that we are having to deal with in this House as part of this Government’s push-through of legislation following the Budget.

Again, I just want to put it in context. A very good piece by Andrew Geddis was entitled “I think National just broke our constitution”, and I think that this legislation is part of that process. He refers to the Government pushing through—

I move, That the question be now put.

When we look at the title, the Crown Minerals Amendment Act 2013 Amendment Bill, we see that it is clearly inappropriate. A better title might be the “Crown Minerals Amendment Act (Failure of the Responsible Minister to Ensure that Legislation is Free of Mistakes) Amendment Bill”, or the “Crown Minerals Amendment Act (Failure of Simon Bridges) Amendment Bill”. Or we could have the “Crown Minerals Amendment Act (Failure to Look at Environmental Impacts) Amendment Bill”, or the “Crown Minerals Amendment Act (Failure to Look at Ecosystems Vital to New Zealand) Amendment Bill”. The title could be the “Crown Minerals Amendment Act (Failure to Consult with Fisheries to See What Impact This Will Have) Amendment Bill”. Or we could have the “Crown Minerals Amendment Act (What Goes Under the Water—Take A Look at Open-cast Mining) Amendment Bill”. There are many titles that would be far more suitable for this bill.

I cannot believe that this bill is actually coming into force on 24 May. This is a bill that would be better served in Cold War Russia under a totalitarian regime. Where is the democratic process? The Government is amending an Act due to come in on 24 May—that is next Friday. We can have no confidence at all that it is accurate. I mean, this bill could be the “Amendment Act (Write It As I, Simon Bridges, Speak) Amendment Bill”. We may arrive back on the Tuesday after to find yet another amendment bill is to be debated. There is no point in attempting to pass the blame to Parliamentary Counsel Office staff and Ministry of Business, Innovation and Employment staff, as National is trying to do, because the Government has ministerial responsibility. As Mr Speaker pointed out in his ruling on written questions as recently as Thursday, Ministers have responsibility, and it was Cabinet that signed off on the original, totally messed up bill, which is actually an insult to the English language.

💬 Hon Gerry Brownlee: The member shouldn’t be talking about anyone else messing up.

Really? Really? Am I supposed to have messed up, Mr Brownlee?

💬 Hon Gerry Brownlee: You got sacked.

I prefer to think of it as being given a totally new perspective on life.

💬 Tim Macindoe: It certainly wasn’t a promotion.

If we are talking about messing up, one may look at and address his own sartorial mistakes.

💬 Tim Macindoe: The tie isn’t that bad.

That means comb your hair, Mr Macindoe. But if we have a look at the principal Act—

💬 Chris Hipkins: He hasn’t got enough.

—no—we might be better replacing this clause with the Civil List Act, which governs ministerial salaries, because Mr Bridges is obviously not worth the quarter of a million dollars a year. In the 32 days since the Act was passed that this bill amends, Simon has been paid $25,000. That is around $1,200 for every clause of this bill that needs to be corrected. It is unbelievable.

The other day Mr Macindoe stood up and interrupted the process. I cannot believe that Mr Macindoe would get up and say that I was out of order and that I was not following the rules when that side never follows the rules—never mind about democracy, never mind about the democratic process.

💬 Tim Macindoe: That’s only because your speech was totally irrelevant. You didn’t know that the question was.

I must say it is very nice to be here on a Saturday morning and see you looking so chipper. This whole bill is a stuff-up—absolutely a stuff-up.

💬 Tim Macindoe: You kept getting the forecast wrong.

But, worse than that, I would ask some of those members—because, for all of his chirping over there, Mr Macindoe is a good man. He is an intelligent man. I would ask him to look inside and find that conscience. I know it is there somewhere. There are some very good people over there.

I move, That the question be now put.