Land Transfer Bill

I just want to take a quick opportunity, I guess, now that we have reached this part of the bill. It always is an interesting part. You hear of some very clever, witty exchanges in the Chamber on these clauses, but I think it is a good opportunity, actually, to summarise what has been a very technical bill that has been debated throughout this particular process.

When we consider some of the content of this particular bill and we look at the title of the Land Transfer Bill, actually, while it states something rather simple, perhaps something a little bit more complex could be given as a title for this particular bill—really, I guess, capturing exactly what it is that is in the bill. There is some very detailed stuff around mortgage issues. I have asked questions about ture whenua and its scope around Māori freehold land. So perhaps, just as a suggestion, the Land Transfer Bill could be called something a little bit more in line with what the content of the bill is. It could be something like, I do not know, the “Land Technical Holding Bill”. The reason I say that is that, obviously, the technical aspects of this particular bill are over the heads of a heck of a lot of people. But it was said during the debate that lawyers across the country will be celebrating this particular bill to make sure that the land transfers in the future are done properly in the House.

I will close my contribution and just once again thank everyone for their contributions on this bill, the Land Transfer Bill. There could be any number of other names for this particular bill, and I have already offered one in the hope that that could be considered on the floor. Thank you.

While it might be at the end of the debate, I guess the very start, clauses 1 and 2, are arguably the most important parts of a piece of legislation. I know that people who come into Parliament or have anything to do with us often look at the books, the huge volume of books, that we have out in the back here in the lobbies, around Parliament, and through the offices, and they go to look for legislation based on the title of the legislation relating to the interests that they have; in this case it would be land.

So there are a couple of questions that I have here, actually, and it might require, perhaps, a further call, I have to say. The first one is that the title clause, clause 1, says: “This Act is the Land Transfer Act 2016.” Well, I believe it is 2017 now. Given that the commencement date of the piece of legislation may in fact be 2017 or 2018, it is something that needs to be clarified. While this has been a lengthy process and these are quite important issues that have been considered very carefully, I think we should have the date of the bill, actually, when it finally—

The CHAIRPERSON (Hon Trevor Mallard): I am now going to interrupt the member. The member has been here for some time and I am sure he realises that the process involves that being changed by a clerical decision in the Clerk’s Office rather than here. I think the member is almost certainly aware of that, and might be having us on.

Thank you, Mr Chairman. I guess it is good to have an assurance on that. That is important. But that is the piece of legislation before us that we are currently discussing in the Committee tonight.

Can I then go to the substance of the title itself, because, having heard the debate and going through the issues that have been raised, it might be more appropriate to call the legislation the “Land Security Bill”. What it does do, and I think there has been careful consideration and general consensus, is it does update a piece of legislation that started out in 1952, with a few amendments. It updates it, it brings it into the modern world, and it is about security. I think that transfer was the issue back then, when you had to ensure a paper system that allowed, I guess, the tracking of the transfer of that. Now, with the new modern systems that this piece of legislation in fact confirms, endorses, and upholds, of course at the push of a button we have records and computers and databases that actually can record the transfer. But what we have been talking about is the security of the ownership of that: be it through mortgagee sales or through some other rorting, the potential for a person’s property rights in the ownership of a piece of property to be undermined. I think the committee and the members in this Chamber have done a really good job to go through and point to some of those things. So we could, in fact, amend—I am not proposing to put a Supplementary Order Paper (SOP) on the table, I have to say, but the bill could be better titled the “Land Security Bill” of 2017—or 2016, subject to the Clerk’s Office to change; I appreciate that.

If we go through, then, to the objectives, in clause 3 the purpose, as is pointed out, does more than just ensure safe transfer. I am referring to clause 3 on the basis that the purpose should be properly reflected in the title clause, clause 1. The purpose is about transfer; I accept that, but it is also about the security, which I have mentioned before, and compensation for any loss, and the one that I do have issue with is that it says here that the purpose is the register of land. I have to say it is the partial register, because the refusal of the Government to accept—

The CHAIRPERSON (Hon Trevor Mallard): Just come back to clause 1.

Yes, well, the refusal of the Government to accept an SOP that would have included registration of foreign owners means that we do not have an accurate register of land in this country, because we are not going to register where the people come from, or indeed where we can get hold of them. So given that our topic—[Bell rung] Mr Chairman?

The CHAIRPERSON (Hon Trevor Mallard): The Hon Damien O’Connor.

Thank you, Mr Chairman. They are real issues, and I appreciate the wisdom of the Chair in accepting what might seem pedantic issues to many watching and in the Chamber. This is the crucial part of the legislation: firstly what it is called, and then when it is commenced. I have not even started on clause 2.

But in clause 1, if we are truly to reflect the purpose of the Act in its title and to assist people in trying to find this piece of legislation when over the next 50 years they go to the books and they go to records to try to find it, then, as I say, it would be better to be the “Land Security Bill”, and I think it might be “Land Security and Register Bill”. If we are to have a truly accurate register of land, then we should say so up front. But, of course, then picking up on my point that actually we are not registering everyone, perhaps it would be inappropriate to have “Register”. It could be the “Land Security and Partial Register Bill”. These are legitimate points that can be tabled in the Committee. If the Minister was of the mind to accept these, then he is indeed in a position to go and change that, even at the last minute. We could have, perhaps, a change of heart from the Government.

I say that I am a bit disappointed having heard the debate, understanding the importance of this for Māori, for farmers, for homeowners, and for everyone in the country who wants the property rights to be upheld—not, perhaps, in some of the ways that the Magna Carta Society would have it, but understanding that we are passing through in our lives, we deal with property, and we want some right of ownership and control and security before we pass it on to whomever. So when we get this legislation or when we are changing it we have got to get it right. There are a few SOPs that have been kicked out that would have improved it. I am disappointed at that. But I guess in the end to have the same boring old title as was laid down in 1952—the Land Transfer Act—does not actually truly reflect the new focus that this bill actually offers land security or property rights security and partial register of land title. I rest my case.

PHIL TWYFORD (Labour—Te Atatū): I too want to add some creative suggestions for the title of this bill, because “Land Transfer Bill” I just feel does not really do it justice. It is too short, and it fails to take into account, I think, a very good Supplementary Order Paper (SOP) that Denis O’Rourke brought to the Committee, which—

The CHAIRPERSON (Hon Trevor Mallard): Which has been voted down and therefore is not relevant to this debate.

💬 PHIL TWYFORD: So it is too late to even propose it?

The CHAIRPERSON (Hon Trevor Mallard): Yes.

💬 PHIL TWYFORD: OK, then.

The CHAIRPERSON (Hon Trevor Mallard): Unless there is an SOP on the Table.

💬 PHIL TWYFORD: I will rest my case, too.

I am very happy to rise and speak on the title and commencement clauses of the bill. It is difficult, after the tour de force that Damien O’Connor has offered us on the title, looking at it from many, many different angles, but I think there are a few things that we do need to consider here.

What I want to suggest in respect of the title is that we do actually look at a different option, and one of the things that I know many of us have valued about this debate is that we have actually learnt a bit more about the importance of land transfer in our economy and our society, and some of the core principles that underpin it. The most important one, which we have spoken about a lot today, actually, is the Torrens system. It has been raised by a number of members in the course of the debate, and actually we had a very good discussion about it from the previous Minister in the chair, Christopher Finlayson, who some of us might note was, in a relative sense, a little bit more active in terms of engaging in the debate. He gave us a very good exposition of the origins of the Torrens system and its importance in terms of New Zealand having a settled and secure and trusted system of landownership.

As Mr O’Connor said, this bill goes back to 1952 in New Zealand—there were previous iterations—but the principles of the Torrens system go back to the 19th century. It was explained to us that Mr Torrens—

💬 Paul Foster-Bell: Sir Robert.

Sir Mr Torrens?

💬 Paul Foster-Bell: Sir Robert Richard Torrens.

Thank you, Mr Foster-Bell—he never misses a beat. He was based in South Australia at that time, sort of in a frontier country, as New Zealand was at the time, and there was a real importance in terms of establishing a secure system of landownership and transfer. So my suggestion in terms of the title of the bill is that we could amend it to be the “Land Transfer (Torrens System Security of Ownership) Bill”. That to me would really point to the historical roots of what we are talking about here in terms of our system of landownership.

We discussed the fact that the Torrens system has embedded within it that important principle of indefeasibility—that notion that, basically, you cannot turn it over. You can take it to the bank. If you own a piece of land and it is on the register that is controlled by the State and it says “Here’s this piece of land, here’s how big it is, here’s where it is, here’s when it was transferred.”, that is it. You basically cannot dispute that, and that is absolutely essential to the way that our economy and our society operate.

So I do want to move on to a question that arises, actually, in the commencement clause, and it would be outstanding if the Minister in the chair, Michael Woodhouse, could give a little bit more guidance on this. I will just bring up clause 2, “Commencement”, here. Clause 2(1) says: “This Act comes into force on a date appointed by the Governor-General by Order in Council.” Clause 2(2) says: “One or more orders may be made under subsection (1) bringing different provisions into force on different dates.” I am happy to stand here and say that I am a relatively new member, so it may be that this is quite a common provision, but I would be interested to know in respect of this particular piece of legislation the reasons that we think there is value in bringing different bits in at different times, and what parts of the legislation we might think might come in first and which might come in later, and the rationale that sits in behind that.

That does seem to me to be quite important, because if we go back to what this bill is about, it is about people understanding how land is owned and how it is transferred. It goes to a whole range of matters around how the people who are involved in transactions, such as banks, mortgagees, and mortgagors, interact with one another, and I think for security, for certainty, we should know which bits of this bill will come in at which times and what the sequencing of those will be. This is a many-latticed thing, and one part of the bill interacts with another part of the bill. So we want to have some certainty, I think, as a Committee, before we know that this bill is signed off, that that question around when different parts are going to commence has really been thought through by the Government before this bill comes into effect. So it would be really good if Minister Woodhouse could give us some guidance on that and answer that question.

In wrapping up, those are the two key points. I think we could be a bit more expansive with the title to recognise how important this is and some of those key principles, including the Torrens system, that underlie it, and there could be some certainty around the commencement. This bill has been developed in a collaborative way, with a Government Administration Committee process that Labour members have been very happy to engage in, and there has been a range of really sensible changes that have come into it here. We think it is a shame some of the Supplementary Order Papers have been shot down today—they would have improved it—but overall it is a good bill that modernises our land transfer system. With those changes that I have recommended, I am very happy to vote for it this evening.

I am appreciating the time that we are considering this bill. Looking back on how long it has taken this bill to come to the Committee, I think it has even outlasted our former leader, who has moved on—and the legislation is still around—who was the spokesperson, and who, I think, put a lot of good wisdom into the whole process.

But in relation to clause 2, “Commencement”, I am just trying to think back to a piece of legislation that I have spoken on that is basically open slather on, or no clear indication of, when it will be implemented. In relation to the three subclauses to clause 2, I have got three questions: when, why, and what?

The first question is in relation to subclause (1), “… on a date appointed by the Governor-General by Order in Council.”, which is without any clear idea of when that might be. The Minister might want to take a call and give the Committee, and, I guess, the many, many thousands of people who will be watching this debate, some idea of when this might come into play. It is a substantive piece of legislation. It is about their property rights. Every Kiwi who has a bit of property or an interest in property should be interested that we are doing the right thing here, but what we are not able to say is actually when this is going to come into effect.

In relation to subclause (2) of clause 2: “One or more orders may be made under subsection (1)”—that is the first part—“bringing different provisions into force on different dates.” So the point made by my colleague Michael Wood is quite right. We have no idea when the Government might choose to bring these things into play. In fact, in the transfer, or the security—which I was referring to in my earlier speech—we have no idea when that might come into play or when that might offer the support, security, and certainty to New Zealanders, because there is so much leeway in subclause (2) here.

So, firstly, we do not know when any of it might be brought into play; then we are told that, actually, they can basically choose to bring in parts of it whenever they like. Then, subclause (3) states: “Any provision that has not earlier been brought into force comes into force on the day that is …” 12 months here, but with Minister Upston’s Supplementary Order Paper 252, we understand that it will go out to 18 months. The question I ask is given the flexibility in the first two subclauses, why are we then asking for another 18 months for other parts that we do not know about? That is the “what”. So subclause (1) is the “when”—we want to know when they will bring it in. Why would you then have different parts of it on different dates? And, thirdly, what are you going to leave out that will then take 18 months, not 12 months as originally proposed, to bring into law?

I think it is a little remiss of Parliament, of the Committee here tonight, to hand over to the Government such an important piece of legislation and then say: “Well, you can bring it in when you like, and you can mix it up however you want, and then if you want to leave things out, you can for up to 18 months.” What kind of mess will that leave for Landonline or for lawyers or people involved in conveyancing? How will they know what part of the law is in place at what time?

I think those three questions are legitimate. It would be great to hear the Minister clarify those, before this Committee finally says yes to move a piece of legislation forward that is so important, but so confusing, even in clause 2. I think it is a perfectly reasonable proposition, as pointed out by Michael Wood, and backed up by myself, that we get clarity on when clause 2(1) might come into force, why we should then leave different parts of it out, and what would be delayed for up to 18 months, which is an amendment by Minister Upston at the last minute from the 12-month period originally proposed in the piece of legislation.

I do want to take a call on clauses 1 and 2, in terms of the title and commencement date, following on from my colleagues. I guess I want to suggest, given the debate around this particular bill, around the concerns that I have expressed in several contributions in this debate—and that is on behalf of my constituents around Māori land owners in Ikaroa-Rāwhiti.

The question is: is this bill better titled “The Real Te Ture Whenua”? Is it better titled “The Real Te Ture Whenua Bill”? The reason why I say that is that we are changing Māori land law, but we have no details, particularly around the critical issue of the Māori Land Service. We have debated this particular bill, particularly Part 2 that introduced the role of the register and its roles and responsibilities, which is what Māori land owners are waiting for, with bated breath, in terms of Te Ture Whenua. I say that because maybe the answer—and we did ask the Minister in the chair at the time, but unfortunately there was a change. I was looking forward to that particular Minister getting up and clarifying for us around the registration that we debated in this particular bill, and those that I mentioned in terms of Te Ture Whenua.

So, getting back to the title, there is a title that may be more appropriate for this bill. It is fresh, it is innovative, it reflects our bicultural nature in this country—or it may clarify exactly how Māori land owners are going to have their land managed going forward under this National Government. So there is a suggestion. Another suggestion around the title could be, I do not know, “Aotearoa Whenua Transfer Bill.” That could be another way to modernise the state of the country that we are in, in 2017 and going forward.

In terms of the commencement date, I do want to pick up the comment and add to the question around why 18 months. You have heard several members on this side of the Chamber make the comparison between this bill and Te Ture Whenua Māori Bill, and the 18 months’ commencement date is absolutely the same in Te Ture Whenua Māori Bill. The question I too want to ask, alongside my colleague Damien O’Connor, is why the delay? What is happening with this Government, and why are we not going to implement or commence this particular bill that we are debating, according to clause 2, for 18 months once we have passed this through?

I have not heard the Minister in the chair, Michael Woodhouse. Maybe he could enlighten us as to why 18 months—why that is. We have not heard any contribution from the National benches as to why that may be the case, during the whole debate on this bill, but I do want to ask the Minister in the chair whether he could help alleviate some of the concerns I have had around that 18-month period, like my colleague, and also around the connection I have made from the title around the Land Transfer Bill to Te Ture Whenua Māori Bill.

I think it is more important that we get a modern title that reflects, like I said earlier, the bicultural nature that we have in New Zealand and the role that Māori whenua plays in this country, alongside the general title, the Torrens system that we have just debated in this bill. I think it is time to get a fresh approach. Clearly the Minister, because he has not risen to his feet—maybe that is a sign of agreement with what we are suggesting around a more modern and more fresh title. I commend this bill to the Committee.

Clause 1 agreed to.

The question was put that the amendment set out on Supplementary Order Paper 252 in the name of the Hon Louise Upston to clause 2 be agreed to.

Amendment agreed to.

Clause 2 as amended agreed to.

Bill to be reported with amendment presently.