New Zealand Public Health and Disability Amendment Bill (No 2)

We now come to clause 2, the commencement clause. This is a very narrow debate.

I am very happy to take a call on the commencement clause of the New Zealand Public Health and Disability Amendment Bill (No 2). Yes, indeed, this is a very narrow debate. It concerns when this legislation will come into force. We will need to consider, first of all, in discussing the bill, the context in which it is being debated—it is being debated under urgency—and the contents of this bill, which, basically, remove the right to a judicial process for a group of New Zealanders. Therefore, the date on which it comes into force is actually very significant. It is being pushed through under urgency to, basically, prevent anybody else using their right at the moment under current law to use a judicial process. This bill is being pushed through to stop further claims being made, and that is why we are here under urgency debating it.

So let us talk a little bit about the commencement clause, which states: “This Act comes into force on the day after the date on which it receives the Royal assent.” Well, there are many, many aspects to this particular clause that are of a slightly more technical nature, but “the day after the date on which it receives the Royal assent.” is pretty ambiguous, because, actually, we do not know when the Governor-General is going to sign this particular piece of legislation. In our constitutional arrangements, the Royal assent is exercised on behalf of the Queen, who is the head of State, by the Governor-General. So the first question we need to know the answer to is when the Governor-General is available to sign it, and, in fact, of course, there is no guarantee that the Governor-General will sign it. In our arrangements, there is no obligation—there is no concrete obligation—on the Governor-General to sign any legislation that this Parliament passes. In fact, part of our constitution is the never-yet exercised right on the part of the head of State to veto legislation that this House might pass. It has not happened in the New Zealand context, but it has, indeed, happened in other contexts. What might happen if the head of State decides to refuse to sign something?

There is a very interesting example where this happened. It was in Belgium, which I visited recently. What had happened was that the King had refused to sign a piece of legislation to give it the Royal assent and, therefore, the Belgian Parliament was forced to work out how it might get this particular piece of legislation through in the absence of the Royal assent. What were the grounds for the refusal of the Royal assent? The King had refused to sign it on the basis that the legislation being passed—I cannot remember what it was, but it was in the nature of the sort that we would have a conscience vote on in the New Zealand Parliament—violated his own conscience. So even though the democratic Parliament had passed the legislation, the head of State decided that he could exercise his conscience on it, as well, and he refused to sign it. That created some interesting constitutional issues there. So the Parliament, effectively, used a little-known mechanism that allowed it to remove the head of State for a defined period of time. In this case it was for only the period of time that it was necessary for the Prime Minister to sign the legislation, because if there was no head of State, then the Prime Minister could sign the legislation. Belgium removed its head of State for the duration of the time that it took for the Prime Minister to sign the legislation instead, and that is how Parliament got what was the equivalent of the Royal assent for that particular legislative measure.

But in New Zealand it is a little bit less clear what would happen to a piece of legislation if, in fact, the head of State, or the Governor-General, refused to sign it. It has not happened in New Zealand’s history. I think that is something that is quite interesting, because it is very possible that the head of State in New Zealand could look at this bill and say: “Well, this legislation, which removes the right to a judicial process”—to a legal process—“from citizens of New Zealand, has been passed by Parliament under urgency without according it the usual legislative process.”

So we have got two issues here. We have got the issue of people’s rights being taken away, and then we have got the issue of the correct parliamentary process, where the public and people of New Zealand have the chance to have a say, also being taken away. So those two things could, together, compound the concern of the head of State, or the Governor-General. The Governor-General, or the head of State—the Queen—may refuse to give this legislation the Royal assent. I think that is pretty unlikely because, like I have said, it has never happened before in New Zealand’s history that the Royal assent has been refused, but it is a really important principle—the principle that New Zealanders have the chance to have a say on legislation that impacts on them.

There is no good reason why this legislation could not go to a select committee, even for a shortened period of time. In fact, there has been precedent in Parliament where legislation that needs to have immediate effect can have a clause inserted into it that it would come into effect from the day that it was introduced. So even if it was introduced yesterday, I think—which is actually today, under the parliamentary urgency system—

💬 Hon Ruth Dyson: Not in the real world.

No. Well, that is right. In the real world, it is Friday; in the parliamentary world, it is Thursday. It is still Thursday here. So this legislation was introduced today in the parliamentary world, which is yesterday for everybody else in the rest of the country. So if we were to send the legislation that was introduced on Thursday—let us just say “on Thursday” to avoid confusion—to a select committee, it could have a clause in it that said that once it had been considered by the select committee, had been brought back to the House, had gone through this process that we are now doing—the Committee stage process—and had then passed its third reading and been given the Royal assent, it would come into force at that point. It would come into force backdated, effectively, to the day that it was introduced. That has happened before in the House. Therefore, the idea that this legislation removing New Zealanders’ rights needs to be pushed through this House under urgency is seriously diminished, because there is another way the Government could achieve that.

So, therefore, those two things—the removal of citizens’ rights and the bad process that the Government is using to do it—could be sufficient for the head of State to look at it and say: “Well, I am not going to give this the Royal assent.”, and could the head of State then send it back to the House? The head of State could send it back to the House and say: “Well, I want some evidence that the House”—that this Parliament—“has gone through a sufficiently robust process in passing the legislation.” I think it would probably be a good thing if the head of State did that, but, then again, it might create some other issues around the separation or the appropriate balance of powers.

The issue that we have here is that there really is not a good justification for this process. One of the reasons the Labour Party is voting against this legislation is that there is not a good justification for pushing it through all stages under urgency in the way that it has been and for not supplying the New Zealand public—the people whose rights are being taken away by this legislation—with the chance to make a submission at a select committee and to talk about it.

What tends to happen with bills like this one is there will inevitably be a mistake in it. We know that, because after we have done this, we are to debate changes to the Crown Minerals Amendment Act, which the Government amended literally only weeks ago. That amendment Act has barely been in place for a number of weeks, and we are going to be amending it because the Government stuffed it up. I think that bill did go through a select committee process, and the Government still managed to stuff it up. This bill has not gone through a select committee process, so we could be back here in no time debating—

💬 Grant Robertson: We might be back here later in the day.

We may be back here later in the day, given the way Parliament works, fixing up a mistake in this legislation because it has not been given scrutiny. There is not one piece of legislation that has gone to a select committee that I have been a member of that has not in some way been improved by going through that process. That is one of the reasons why we have the select committee process, so that we can adequately examine legislation and so that we can make sure the Government is doing its job. How can we do that adequately, and how can we discharge our functions as a Parliament, when we have things like the regulatory impact statement being mostly blacked out?

A regulatory impact statement is designed specifically so that Parliament can ensure that the Government is exercising its responsibilities and doing its job appropriately, and we are being denied that information. That is another reason why the head of State could look at this legislation and refuse to give it the Royal assent—due process has not been followed. Parliament is not following its own rules. By passing legislation without due scrutiny—and I am going to ask Grant Robertson to pass me the piece of paper, the regulatory impact statement, sitting in front of him—

💬 Grant Robertson: A very good piece of paper.

—a very good piece of paper. When we have a regulatory impact statement that looks like this, which no one can actually read to make sure that we are doing our job appropriately, it is good grounds for saying that this legislation should not stand.

This legislation is being passed by the narrowest of margins. The last vote we had, on clause 1, passed by the narrowest of margins in this Chamber, against the will of the very significant minority, and the process also shut New Zealanders out of this process. But that is what New Zealanders have come to expect from this Government. That is what they expect from the born-to-rule, Tory, arrogant Government. More and more it is willing to ride roughshod over the democratic process and over the rights of New Zealanders—[Interruption]—and the Government members laugh about it because they think it is funny. They think it is hilarious that New Zealanders will not get a chance to have a say on legislation that affects them and removes their rights. That is wrong.

Thank you very much for the opportunity to speak to clause 2 of this legislation, the New Zealand Public Health and Disability Amendment Bill. I am particularly keen to speak to this because I have an amendment in my name to this clause.

As my colleague Chris Hipkins has mentioned, this is a very narrow provision in the legislation. Clause 2 deals solely with the commencement. As it stands, it says: “This Act comes into force on the day after the date on which it receives the Royal assent.” Generally, that would not be a problem. Generally, Parliament would agree to that, but, generally, a bill of this nature, which does not require any urgency to be accorded to it, would have gone through a proper parliamentary process. It would have had an introduction from the Minister, it would have been referred to a select committee, the select committee would have called for submissions from members of the public, and the members of the select committee—in this case it would have been chaired by Dr Paul Hutchison—would have been able to look at the legislation with fresh eyes and without the tainting of the Minister who has shepherded it through to this stage and obviously has a close and vested interest in its passing.

The select committee could have looked at it with fresh eyes, and members of the public could have had their say about this legislation, but none of that has taken place. Instead we are seeing, in an absolute breach of the protocol of Budget urgency, this bill being rammed through all stages, one after another after another. So at midnight tonight or tomorrow morning—I do not know when—this bill will be passed without a single member of the public having had the opportunity to have their say.

This is not a technical bill, and this is not a bill that is irrelevant to people; this is a bill that cuts to the heart of families in New Zealand who have disabled members. This bill is about whether or not family members, when they provide home care for disabled family members, are able to get paid. But because of the commencement date and the process that has been undertaken by this arrogant and out-of-touch Minister, none of those family members will have a say.

My amendment to this clause reads as follows: “After the current wording”—which I just alluded to—“insert: (1) This Bill can only be submitted for Royal Assent if the Bill has been submitted to the Health Select Committee for public consultation and comment, prior to the Third Reading.” With that amendment we could have this debate. We could hear the Minister’s justifications for this bill being so limited. We could hear the Minister’s justification for extinguishing the rights of excluded family members, so the family members who are not covered, who will continue supporting their family members but will not get paid, can hear not only why they have had their payment denied by the Minister but also why their rights to the Human Rights Review Tribunal have been extinguished. They would be able to have a say at the select committee if my amendment was passed.

I do not think that is a big ask, actually. There is no reason at all for this move to be hidden under the cloud of the Budget. It is not a budgetary matter. It is not a matter for urgency. It is actually, in my view, not a matter for confidence and supply. I think that the only reason it is being put through under Budget urgency is so that the three votes of the Māori Party could be attached to it. If this bill was amended as per my amendment to clause 2, we would be able to have that debate with the full scrutiny of members of the public and the 3,800 families who are not given financial support under this legislation, who are being denied it, and who are also having the right to a Human Rights Review Tribunal denied.

The way that the current commencement provision reads, no such scrutiny is allowed. The bill, having gone through all of its stages in one go with hardly a pause for breath, let alone any fresh consideration, will come into force on the day after the date on which it receives the Royal assent. I think that is a big mistake. It has been pointed out in many previous debates in this Parliament what happens when legislation is rushed. Almost without exception the Minister has to come back, look embarrassed—even more embarrassed than currently—and ask for more time from Parliament to correct the mistakes.

I want to pick up where my colleague Ruth Dyson has just left off in speaking about her amendment to clause 2 of the New Zealand Public Health and Disability Amendment Bill. This amendment, as has been noted, would insert after the current wording: “This Bill can only be submitted for Royal Assent if the Bill has been submitted to the Health Select Committee for public consultation and comment, prior to the Third Reading.” This is the first opportunity I have had to speak on this particular piece of legislation, and I am pleased to be doing it in the debate on the commencement clause, because it cuts to the heart of the issue I have with the process that the Government is going through at the moment.

Normally, a debate on a commencement clause is relatively non-controversial. The Government makes a decision about the timing by which it wants to put a bill through. It often, for instance, gives a little bit of time for processes to be worked through. Recently, when the marriage equality legislation was passed, the commencement date for that particular bill was pushed out 3 or 4 months to allow the Department of Internal Affairs to put in place the arrangements for changing forms and so on. That kind of thing is acceptable when we come to a commencement date clause. Sometimes there is a reason to make a commencement date immediate when there is an immediate issue in front of the House—perhaps a taxation issue or something like that that requires that.

This commencement clause comes as part of a bill that has not had the kind of scrutiny that we would expect a piece of legislation to have. This bill, as has been stated by my colleague Chris Hipkins, was effectively introduced today, for the purposes of this House. It is not a bill that was seen by other parties before it came to the House. Along with it, as we would expect, we have had provided to us a regulatory impact statement. As other colleagues have noted, this document illustrates the quality of the regulatory impact statement material that we are working with. It is another great example of work from “Transparent Tony”, well known for his ability to let the public in on things! I know there was a story about Tony Ryall when he was a Minister in the 1990s. He had a drawer full of Official Information Act releases. He waited until people complained about them before he actually released them, otherwise they just stayed in the bottom drawer, unable to be found. That is “Transparent Tony” for you.

This regulatory impact statement indicates, for those of us on this side of the House, that this bill needs select committee consideration, and that is the amendment that Ruth Dyson has put to the commencement clause. It is an amendment to push this bill to the Health Committee. So rather than a blacked-out document like this, we would actually have the opportunity for members of that committee to talk with officials, to question interested groups, to bring in the carers and talk to them, and to give them a chance to have their say here.

That is all the more important, and Ruth Dyson’s amendment is all the more important, when we look at the New Zealand Bill of Rights Act report from the Attorney-General. What the Attorney-General is saying in that report at the end is: “On balance, I have concluded that the limitation to the right to a judicial review cannot be justified under section 5 of the Bill of Rights Act.” So what the Attorney-General is saying is that what this bill does—the limiting of people’s rights through the judicial process—cannot be justified under the New Zealand Bill of Rights Act. Surely, that alone would be a justification for this bill to go to the Health Committee, as Ruth Dyson’s amendment to the commencement clause requests. When we get such a report from the Attorney-General—not a man loath to come to this House and throw New Zealand Bill of Rights Act vets around; he is a person who obviously has thought carefully about this, and, no doubt, has had strong advice given to him from the Crown Law Office and others that this bill does breach the New Zealand Bill of Rights Act and it does breach people’s right to a full judicial process—that should be the subject of extensive debate in a select committee. Ruth Dyson is offering that with her amendment to the commencement clause.

Yes, it is unusual for a commencement clause to be amended in this way, but that is because the Government has undertaken a most unusual process by bringing up this particular bill in the way that it has. Normally, we would have seen a process whereby there were public submissions. We would have been able to look at the nature of a New Zealand Bill of Rights Act vet that says that this breaches the New Zealand Bill of Rights Act. We have had a regulatory impact statement that has been largely withheld. All of those things would have been able to be considered by a select committee. So amending the commencement clause to now allow for a select committee process, although unusual, is appropriate in this case because of the actions that the Government has taken.

Thank you, Mr Chair, for the ability to take a call on the commencement clause of the New Zealand Public Health and Disability Amendment Bill (No 2). I think it is right and proper that the Opposition’s spokesperson on women’s affairs gets to comment on this bill, as it does have quite a disproportionate impact on women.

There are two primary issues that I wish to canvass in debating the commencement clause of this bill. The first one is an issue that some other colleagues made reference to when they were debating the title of this bill, but it is actually a commencement issue, and it is the fact that one of the impacts of this bill has already commenced. It has already commenced. It commenced yesterday, actually, and it is the part of the bill that takes away people’s right to go to the Human Rights Commission to get their case heard in terms of their human rights and in terms of whether they are being regarded in terms of their ability to look after their loved ones with disabilities and to be paid for that. That right was taken away by this Government yesterday.

Here we are today debating when this bill is going to come into effect. What the Government says is that even though it took away the right for people to actually lodge their case with the Human Rights Commission yesterday, the payment part of this bill will not commence until some other date, yet to be determined—the date on which it is going to be given Royal assent. We do not know when that date will be, but it will not be yesterday—it will not be yesterday. So here we have a situation where the payment part of the bill, the part that those seven families fought so long for, will not commence until a date yet to be determined. Can I just take a minute to acknowledge those families and congratulate them on their tenacity. It is certainly something I want to celebrate. New Zealanders actually do not lie down easily around this type of thing, and those seven families are certainly in that category.

So for 20 years this issue has been under debate, and the commencement is a date yet to be determined—it will be the date on which the Royal assent is given, but we do not know when that might be. The point I am trying to make here is that it seems that the payment part of it comes in some time after many, many families have had their right taken away. It is a right that even the Hon Christopher Finlayson, one of the Government Ministers, says should not happen under this bill. He has concerns about it, because it is a fundamental right to go to the Human Rights Commission that is being taken away from families who are looking after loved ones with disabilities. That right was extinguished yesterday by this bill. That is the first point I want to make.

The second point I wish to make is that I want to speak in favour of the Hon Ruth Dyson’s amendment. Ruth Dyson is a very wise and experienced member of Parliament, and she has put forward an amendment that would ensure that there was a select committee process and that this bill could not commence until the public had had their right to be heard on it. And there is no stronger reason for that than what we have got sitting in front of us—the regulatory impact statement.

I am holding up the regulatory impact statement, and for those who may be watching this debate on the television, I am not holding up a piece of abstract art. It looks like it might be, but it is actually supposed to be one of the pages of a document that is supposed to inform this Parliament about the impact of the law that we are debating right now. It tells us nothing. That is another reason, not just the main reason, why the select committee process is so important in this regard—we have had all of this information withheld from this debate.

I believe that the only way we will get to the bottom of what this information might be is to hear from the families concerned, not only the families who will be the recipients of the payment brought in by this bill but also those families who have been deliberately left out by this Government. In this paper we do read that the Government had several options, and it decided to go for a very narrow targeting with this bill. So we do need the bill to go to a select committee, and that is why the Labour Party, through the Hon Ruth Dyson, is insisting that the commencement date is not held until we actually get to the bottom of this. The page that I just held up might tell us what the impact is on women. We do not know. There is supposed to be a gender-impact analysis done on all of this.

This is the first opportunity I have had to speak on this bill, and I am very pleased to be speaking on clause 2, the commencement clause of the New Zealand Public Health and Disability Amendment Bill (No 2). I am going to be speaking in favour of an amendment put up by my colleague the Hon Ruth Dyson about changing the commencement date. At the moment the clause says that the bill will come “into force on the day after the date on which it receives the Royal assent.” However, the amendment would see that this could not happen until the bill has been to the Health Committee before its third reading. I have to say that I think that is so important. We cannot, in all conscience, see this bill commence before there has been a select committee process. I urge National members to reconsider their position on this.

Caring is a critical issue. I do not think that anybody in this Committee would deny that. So many people of our population are involved in caring for family members. I guess that everybody sitting here can probably think of such instances within their own families. Certainly, in my case, my mother, who lives in the Minister of Health’s electorate, is a carer, and she cares for my stepfather. Without her, he would not be living at home. I want to acknowledge those carers, actually, because I think that their needs and concerns are the voices that should be heard.

That is why I think that the commencement date needs to be delayed until after a select committee process. Those carers, both unpaid and paid carers, need to be able to look at what has been proposed here and say what they think about this, and say whether or not they think, as I and my colleagues do, that the response of the Government to this particular matter is too limited. It is limited in a number of ways. It is limited in the payment that is going to be offered to carers. It is limited in terms of who can be paid—in particular, I note the exclusion of the right of a spouse or partner to be paid for caring for an adult. I think that it is really important that we have a genuine discussion about that, because often carers are, in fact, a spouse or partner.

The commencement clause needs to be changed, as is outlined in the amendment, so we can have a good look at those kinds of issues. For those listening to or watching this debate, we are having forced through here at the moment under urgency, through all stages, a bill that will take away people’s rights to challenge discrimination—a bill that is such a fundamentally important one about the rights of carers, who are playing such an important role. The process is just fundamentally flawed.

This does require more consideration. I am sure the Minister, if he actually was standing up and responding to any of this, might point out that there has been a consultation process, and therefore it is appropriate to have the commencement as it is in the bill. However, I would point out to the Minister that that consultation was at a very general level. It did not actually consult about the specific provisions of this bill and the conclusions that the Government has come to, which, as I say, limit the payment and limit who is eligible to receive that payment.

The CHAIRPERSON (Lindsay Tisch): Order! Order! It is the starting date—

And so it is important that we support—and, again, I urge members opposite to support—our amendment to clause 2, the commencement, which says “This Bill can only be submitted for Royal Assent if the Bill has been submitted to the Health Select Committee … prior to the Third Reading.” I just want to continue to justify that position. I think it is important when we put an amendment up around a clause like the commencement clause that we justify why we are doing that.

In addition to the reasons I have already said—and others have mentioned this—we have a regulatory impact statement that is an absolute outrage. It is a disgrace. I am showing people who can see this debate a page that I am particularly interested in. It is on the issue of why spouses and partners should not be eligible to be paid for caring. We need, I think, a select committee process to have a conversation about that. In the regulatory impact statement it says: “Spouses of adult disabled people, parents and other resident family members do not have the option of being paid family carers despite many having extensive”—and I would agree with that—“caring responsibilities.”

The CHAIRPERSON (Lindsay Tisch): Order!

Well, I just say, Mr Chair, that we need to know what the information is here. Why is the response to that blanked out? If we extended the commencement date till after a select committee process—

I move, That the question be now put.

We first have Ruth Dyson’s typescript amendment to clause 2. This amendment is out of order as the amendment would make commencement reliant on an indeterminate event. This is Speaker’s ruling 117/2, if members wish to see what it says there.