Electronic Interactions Reform Bill

That brings us to part three, clauses 43 to 79.

💬 Hon Dr Megan Woods: Madam Speaker?

The CHAIRPERSON (Hon Anne Tolley): I call the Hon Megan Woods.

💬 Hon Gerry Brownlee: To the rescue!

That’s right. I look forward to your contribution, Mr Brownlee, on hearing that. Mr Speaker, it is my absolute pleasure to take a call on this Electronic Interactions Reform Bill. This, of course, was a bill that went before the Government Administration Committee in the last Parliament, which was ably chaired by the honourable member next to me, the Hon Ruth Dyson.

Mr Speaker, this is a cross-agency omnibus bill that seeks to amend and update 17 Acts to enable digital interactions between individuals, businesses, and Government. It is an important piece of legislation, and modernising 17 pieces of legislation at once is no mean feat. This is an area where we have to consider that we do have modern legislation that is fit for purpose, and legislation that can see us through to a future, because making sure that we do have our electronic interactions absolutely right is critical to what our future is going to hold.

In Part 3, this is actually about the giving of evidence and notice by electronic means of this. There are some very important issues that are in this part of the bill. The idea—

💬 Hon Gerry Brownlee: Part 2.

Part 2—I thought we were on Part 3.

💬 Hon Gerry Brownlee: No. Part 2—stay up with it.

Part 3. It is Part 3. So that, Mr Brownlee, is on page 2 of the descriptions in the explanatory note in the commentary. So bear with me and I will talk you through it bit by bit.

So this is the giving of evidence and notice by electronic means. This is amendments to the Fair Trading Act of 1986, being one of those 17 pieces of legislation that is going to be amended. The select committee here has recommended inserting new clause 61A, which does amend that. The section allows the Commerce Commission to require a person to supply information or documents or to give evidence. Empowering the Commerce Commission with additional powers is a pattern that we are seeing necessary across Government. Only today, our Government signalled the need to give the Commerce Commission market study powers so it can look into the very important issue of fuel pricing. We must ensure that our Commerce Commission is equipped with the right powers to ensure it can do its job and make sure that we do have market places that are competitive and that are delivering fairness.

Mr Speaker, the other part that this does is the proof of email and delivery of a notice sent by courier, and this is also an important part of what we need to do. This is an important piece of legislation and I look forward to hearing more from fellow members about it. Thank you.

I thank the member for her contribution, but I point out that I am, first of all, Madam, and, secondly, I am in the Chair.

💬 Hon Dr Megan Woods: It’s hard to get used to it.

The CHAIRPERSON (Hon Anne Tolley): I do appreciate it is hard to get used to. OK, we are on Part 3.

Thank you very much. All right, well, I’ll just make some things up, seeing as no one is going to give me a copy of the bill. Thank you very much.

💬 Hon Dr Megan Woods: Gerry thought you were on Part 2.

Gerry apparently thought we were on Part 2. We’re on Part 3 of the bill, “Giving evidence and notice by electronic means”, and I have to say, Mr—sorry, Madam Chair. Some habits are hard to break, Madam Chair, so please do forgive me for that. It is interesting that the largest and laziest Opposition in the history of the New Zealand Parliament doesn’t seem to want to make any contributions on the legislation that they themselves introduced into this House and that this Government is very proud—very proud—to be progressing through the committee this afternoon and later on into this evening. Mr—sorry, Madam Chair. It’s been a while since we’ve had a presiding officer who was a woman, Madam Chair, and I think it is a very welcome thing, so, please, it is just taking a wee while to reprogram.

But I want to talk in particular about clause 44 and the subsections it inserts, which refer to audio links and the meaning of “audio link” as defined in this bill. So we turn to the definition, for example, of “audiovisual link” as a starting point. The meaning of an “audiovisual link” is something that, of course, could be interpreted in a variety of different ways. There are many different types of audiovisual link. For example, the audiovisual link in my office prompted me to come to this Chamber just a few moments ago. Let’s turn to the meaning of audiovisual link according to the Electronic Interactions Reform Bill. It says an audiovisual link “means facilities that enable audio and visual communication between the Commission and a person when either or both of them are not physically present at the place specified in the notice.”

Of course, in dealing with these clauses the word “and” is very important, because an audio and visual communication is very different to simply an audio communication, which, of course, is the previous definition in the bill. An audio link “means facilities (for example, telephone facilities)”—here’s an interesting question. Here’s an interesting question: what about a Skype phone? This is important. The entire parliamentary complex, of course, has moved on to Skype phones, and we have Skype phones that offer both audio and visual, right? So now that’s interesting, isn’t it? By saying “for example, telephone facilities” are regarded as an audio link, do we thereby preclude them from being included in the definition of an audiovisual link—an audiovisual link? In fact, a Skype phone could potentially fall under both definitions, and I think that’s something that the committee will want to consider in great detail, given that this bill is designed to deal with the change in technology that is emerging and that is continuing to emerge. What happens when these definitions are changed as a result of the evolution of technology, and what happens when an audio link in fact becomes an audiovisual link?

Let’s go back to the definition of an audio link—I’ve got the members opposite on the edges of their seats with this; I know they’re going to want to get into this in great detail. An audio link, of course, means facilities—for example, a telephone—“that enable audio communication between the Commission and a person when either or both of them are not physically present at the place specified in the notice.” Well, the interesting thing here is that an audio link can also be used where people are present within a particular area. For example, we use video conferencing to link up with a variety of different people, some of whom are present and some of whom are not. So I think that creates an interesting question—an interesting question—about the definitions contained in this particular Part 3 of the Electronic Interactions Reform Bill.

Look, there are many other provisions. I mean, Part 3 extends over several pages, and I have dealt with only two very small clauses of that. I intend to scrutinise this legislation in much greater detail to ensure that what we have inherited from the previous Government is, in fact, in keeping with the intentions of the current Government, making sure that we are delivering for New Zealanders the change that they voted for at the last election that the members opposite are still coming to terms with. So if we turn to clause 45, for example—[Time expired]

Thank you, Madam Chair Tolley. I think the good thing about the Electronic Interactions Reform Bill is that there really is something in this for everyone because Part 3 not only allows for serving notices and providing notices through email but actually continues to allow for the service of notices—for example, to the Commerce Commission—by way of fax. You would have thought, in this day and age, that there were not many offices left that have a fax machine in them. The National Party almost certainly does, because they simply have not moved on. They certainly have not moved on from 23 September. We know that that is causing them great anxiety as they have to very quickly equip themselves with knowledge of the Standing Orders, as we’ve seen this afternoon.

The requirement in clause 53, in Part 3, which allows for a notice to be faxed to a claimant but also to be emailed to a claimant, allows extraordinary flexibility—

💬 Hon Simon Bridges: Why is the justice Minister not dealing with Pike River?

—because when it comes to emailing and faxing notices of a legal nature—indeed, of a litigious nature—actually, the Minister of Justice is absolutely qualified to speak upon this. As somebody who has actually appeared before and given evidence to the Commerce Commission, I know just how handy it is to be able to communicate with the Commerce Commission by way of both email and fax.

What we see in clause 53, in Part 3, is this presumption that if a document or notice is sent by fax or by email, it is deemed to have been served on the claimant, or other person, the day after—or, in the case of an email, the second working day after the date on which it was emailed. Of course, that then puts an onus on the recipient to prove that they hadn’t received it or that the email address was wrong. This is going to revolutionise the communication of notices and the service of notices in this particular context, and so we do have to be alert to the risks that are associated with this. We all want to move into the 21st century and to modern telecommunications, but we also have to understand that there are risks associated in doing so.

It is interesting to see in clause 54—also in Part 3—a new subsection 2A, saying that “In the absence of proof to the contrary, a notice that is emailed to a person” is treated as having been served on that person on the second working day, “and, in proving that the notice was emailed, it is sufficient to prove that the notice was properly addressed” to the email address that was commonly known to the person upon whom it is being served.

These are new devices and presumptions in law of this nature, and so we do not take lightly—we do not take lightly—the role of this House and the committee of the whole House stage to provide appropriate scrutiny for these sorts of measures. The legal profession has been talking about modernising for a long time. Ever since the member for Tauranga stopped being a Crown prosecutor, the rest of the legal profession decided it was time to modernise and left him in its wake. But actually providing for the emailing and faxing of notices to the Commerce Commission or to parties to action in the Commerce Commission is, I think, a novel step for the law, and it is important that the rules around that and the presumptions associated with it, as, indeed, Part 3 does, are a vital development in this part of the law.

The Electronic Interactions Reform Bill will herald the way to a new way of doing business in so many institutions, not the least of which is the Commerce Commission. It is interesting to see, also, that not just notices on parties or the commission itself, but the serving of summonses now can be done through electronic means. That does open up a whole new can of worms, because there will be issues about whether Bill of Rights rights are properly observed and whether or not there is scope for challenges to that. But we cannot underestimate just how significant and how revolutionary the provisions in this particular bill are.

Thank you very much, Madam Chair Tolley. I just thank the honourable member for his contribution and I just want to acknowledge that, yes, Part 3 is actually the most controversial part of the bill that we’re discussing today. And it is the most controversial part for the very reason that the member has just been articulating, and that is around the recognition of the legality of an email being sent, or a notice being sent by email, and what that means at the receiver’s end.

There have been concerns raised by members on the select committee to make sure that while the Government department can prove—and must prove—that the email address that they were using is a working email address and that it was addressed correctly, it only stands as a proof that it was correctly sent. For example—and I used this example for some colleagues of mine—if I receive, say, 300 emails a day, and I didn’t manage to get to that email on that day, just the fact that it was correctly sent doesn’t mean that downstream I can’t say that, actually, I didn’t open it on that day—there must be some downstream proof of that. I have the opportunity to say, “Well, it might have been my working email last week but it’s not my working email this week.” So there are some defences around the recognition that notices are or are not received.

But I think the other part of this that caused concern was that the same applies to couriers. With all due respect to courier companies, we all know how unreliable some courier companies can be. However, to send a notice by courier, as long as the department shows that it was sent to an accurate address, that it was addressed appropriately and correctly, then they can say, “We did send it, so therefore we met our obligation to send.” to an acknowledged address. If, however, it doesn’t reach that address because the courier company lost the notification, that is a defence against any downstream consequence of perhaps not taking action on that notice.

Just one other thing, though: Supplementary Order Paper 7, which is on the Table, also amends Part 3 just slightly. It’s the second amendment, it’s minor and technical in its drafting, and it updates just the numbering of the inserted provisions in light of other amendments that have been made in that Part 3. The first part of the Supplementary Order Paper, which has already been discussed there, allows the chief executive to set the parameters by which a photo will be made.

So I did just want to rise and acknowledge the controversy of Part 3, and that there is a tension there that will be tested, I believe, going forward. But it is something that needed to be updated: the language, the method by which Government departments—if for no other reason than actually there is a financial saving for the taxpayer. But we mustn’t lose that tension: just because you send something, was it received? Is there a way a recipient can prove that, “I didn’t receive it. There are reasons why I didn’t receive it.”? So somewhere in the middle it got lost. But I acknowledge the member and the controversy, and I acknowledge the interest from the Opposition benches on this particular issue, because I know how concerned they are with regard to the tension that is in this document. I know how excited they are to have this piece of legislation in this House and I look forward to their contributions as we go forward.

I move, That the question be now put.

Thank you very much, Madam Chair Tolley, and I’m quite surprised to see members opposite not standing up and taking a call to talk about something as significant as Part 3 of the Electronic Interactions Reform Bill, because I want to pick up on a couple of things that the Minister just said, and ask her a couple of questions as well in relation to Part 3. In particular—

💬 Hon Member: Don’t filibuster your own bill, Grant.

💬 Hon Gerry Brownlee: Their boat’s shaking.

Mr Brownlee has a lot to say, yet nothing of any meaning whatsoever, and so it’s a strange world we live in, you know, that a man who once had such greatness is reduced to this. It’s quite a sad thing, really.

💬 Hon Gerry Brownlee: I raise a point of order, Madam Chairperson. Far from the point that’s trying to be made by the Hon Grant Robertson, I want to convey, to anyone who’s interested, the knowledge—

The CHAIRPERSON (Hon Anne Tolley): Is this a point of order?

💬 Hon Gerry Brownlee: Yes, it is. I’m simply wanting to make it clear that this is the greatest entertainment anyone could have, to see a Government filibustering its own bill.

Madam Chair, that—

The CHAIRPERSON (Hon Anne Tolley): Look, I don’t need any further help. That is not a point of order.

Indeed, Madam Chair. No, I am standing to take a call on a significant change in the way in which many Acts that have been before this Parliament for some time will be operationalised using electronic means. The point that—

💬 Jami-Lee Ross: Grant, why aren’t you writing next week’s legislation?

I’m way ahead of that, Jami-Lee Ross—way ahead of that. That’s done. That’s dusted. We’re on the way. I came down to this Chamber because this is a piece of legislation that changes the way New Zealanders interact with agencies that are important to them.

I want to come to the amended section 98, in clause 44, on audio links for the Commerce Commission, and I want to ask the Minister in the chair, Tracey Martin, whether or not evidence has been provided to her, or through the select committee, about some of the possible risks that apply when giving evidence via audiovisual link. I know from cases that I’ve dealt with in my own constituency of concerns in the justice system and the courts where the use of audiovisual links breaks down—

The CHAIRPERSON (Hon Anne Tolley): Sorry, could I just ask the member to what clause he’s referring?

I’m on Part 3, clause 44—the amended section 98. And I’m more than happy to read it out.

💬 Hon Gerry Brownlee: We know you are!

Because that’s always a useful thing to do, Mr Brownlee, to be able to make sure we know exactly what clause we’re talking about. And so this is here—in clause 44, Part 3, which amends section 98 of the Commerce Act—to allow for people to appear by audio link or audiovisual link. I wanted to ask, before I was so rudely interrupted by Mr Brownlee, the Minister in the chair—I know this is unusual, Madam Chair, but I just want to foreshadow the fact that I will be seeking a second call because I’m only up to the first of my questions to the Minister. And so what I wanted to make sure had been done was an assessment of the lessons learnt from the court system and the justice system around some of the risks associated with the use of audiovisual links. And what we know from the justice system is (a), the propensity of such links to break down, but also (b), if, and there may well be—in the case of matters related to the Commerce Commission and the Commerce Act—secrecy and privacy type provisions that need to be maintained.

I think if we’re making a change, as this Parliament I imagine will be of the will to do, is that change being made with an awareness and a knowledge of what can go wrong with audiovisual links? And so that was why I wanted to raise that with the Minister, to make sure that that is happening. They are very positive developments. They facilitate a much more efficient type of business in all of the Government tribunals and courts and agencies, but they are not without risk in terms of those privacy and security concerns, and so I would ask if the Minister might be able to comment on what lessons have been learnt, if any, in regard to that.

More generally, looking then at clause 45, and this is the question of the ability to serve notices through different forms of technology. This is actually a very important point, and I’ll give you a specific example. Many members of the House will have signed up to various organisations, including Government ones, using email addresses that they may or may not use on a regular basis. And I think—without wanting to bring political parties into the debate—political parties would be able to tell you that many of the addresses on their databases are no longer used, and a significant and important point is that if we are going to have this as the regular form of communication, how can we be sure that people are well served? Will they be given any advice about how to update email addresses? What will they do when they feel that they haven’t had contact from an agency because it was an old email address? It’s much different from moving around between residential addresses—[Bell rung]—Madam Chair?

The CHAIRPERSON (Hon Anne Tolley): The Hon Grant Robertson.

Thank you Madam Chair, because I am only on the second of my points. So, to me, that is a really important point: how are we making sure that email addresses are kept up to date? How do people know that it is the place that they will be best contacted at? So I would ask the Minister in the chair to come back to us on that.

I want to go now to clause 51, which is an amendment to the Copyright Act 1994, and I want to particularly look at what would now be new subsection (4): “In the absence of proof to the contrary, written advice that is emailed to a person must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the advice was emailed, it is sufficient to prove that the advice was properly addressed and sent to the email address.” That, to me, raises a number of questions, the first of which is that the whole point of electronic communications is their immediacy, and so the idea that it must be treated as received by the person on the second working day after the date on which it was emailed seems somewhat contradictory to the whole point of emailing—

💬 Hon Gerry Brownlee: It takes the member’s office days to reply.

Well, now, Mr Brownlee’s problem is he hasn’t got up to “R” in the alphabet, for his learning. He gets to “G”, and then he doesn’t quite know what to do afterwards. So it’s absolutely fine, Minister—

💬 Hon Andrew Little: If you email it on a Saturday, you need two days.

Well, that’s true—that’s true. Actually, on a Monday, because he often doesn’t get to work till the Wednesday. I know for Mr Brownlee this will be hard to imagine, but for most people—

💬 Hon Gerry Brownlee: Fill up the void. Personal insults—not a problem.

Filling up a void—I wouldn’t go there if I was the member, but, yeah, that’s fine. Really, it is a question that, actually, seems quite contradictory to what the whole point of electronic communications is.

But it is the second part of the clause—which does appear to me to have been added at a later point; I wasn’t on this select committee—“in proving that the advice was emailed, it is sufficient to prove that the advice was properly addressed and sent to the email address.” I would ask the Minister in the chair if there has been any advice given around other jurisdictions’ use of that form of definition, because the way that things work in terms of cyberspace and using emails is that messages sent are not necessarily messages received. There’s an awful lot that can happen, and so whether or not the obligation here that something is sufficiently, properly, addressed and sent—now, we all know that it’s quite possible to place read receipts on emails, and whether or not Government agencies have been encouraged to actually put read receipts on their emails, would that not be a possible or a better way of ensuring that there is some certainty about whether or not this has been sent—

💬 Hon Gerry Brownlee: This is rubbish, Grant. It’s complete—of course, that’s your obligation. You’re talking absolute rubbish. You’re wasting the House’s time.

Well, Mr Brownlee has a number of opinions about this matter but isn’t interested in taking a call to tell me whether or not he actually—Minister Brownlee, in the 10 or 12 emails he’s sent in his political career, clearly believes that they all made it to the recipient. We can’t necessarily guarantee that.

So I do wonder if there has been some consideration given to the idea of read receipts or something else that could be used as a way of proving that an email was actually received, because simply sending it—

💬 Brett Hudson: They can’t, Grant. They can’t be used as proof.

Well, Brett Hudson has views, too. He was on the select committee, so he actually could take a call if he chose to.

💬 Brett Hudson: So I understand the bill. This is why we want to pass it, Grant.

Yeah, well, see, this is the problem, that members of the select committee won’t take a call. I have to ask the Minister in the chair if that is, in fact, the way that this was done. And these are not matters that are trivial, when you look at the kinds of things that have been sent through. These are notices of suspension for companies, notices of determinations made by the Companies Office—all of these are important matters, so it’s not something to be taken lightly, that simply sending an email that was properly addressed is enough to say that it was received. So I think that actually is a legitimate question that we can be asking of the Minister in the chair.

As I go through Part 3, I want to come to subpart—the one on marriage, what one was that one? There is a subpart around amendments to the Marriage Act, which I do want to cover, but I’ll return to that, perhaps, in another call. But I do also want to note that this whole provision around emails—[Time expired]

I move, That the question be now put.

Kia ora, Madam Chair Tolley. Ngā mihi nui ki a koutou, kia ora. I rise to support this legislation. It’s an admirable effort this Parliament is doing to modernise our communications legislation—17 Government departments are covered by this legislation.

Now, I want to confine my comments to the copyright provisions in Part 3 of this legislation, because it’s something I’ve got a bit of experience with in this House, with the Copyright (Infringing File Sharing) Amendment Act, and we’ve got the copyright review going through at the moment. There are a few key questions that arise in this legislation. Now, it’s admirable this Parliament is trying to clarify how email communiqué should be used, because when it comes to copyright, you’ve got, basically, two sides of the debate, or two sides of the relationship. So a copyright owner has to notice that their copyright has been infringed and then send a notice to the relevant agencies, and then the appropriate mechanisms are invoked under the Copyright Act 1994.

In Part 3, what we see is that by amending section 136A of the existing Copyright Act, the chief executive may suspend notice. Now, I want to read this out—it’s in clause 51—because it is kind of quite tricky language: “(4) In the absence of proof to the contrary, written advice that is emailed to a person must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the advice was emailed, it is sufficient to prove that the advice was properly addressed and sent to the email address.” Now, if memory serves me correctly, the existing older legislation had a 20-working-day period.

It’s correct that we’re allowing emails as a valid form of formal communications, and here you’ve got two days to consider it read, but my question to the Minister in the chair, Tracey Martin is: what happens when it goes to the spam filter? I bet every member in this House has spent more than two days replying to a constituent’s email or an email from your party. Now, I’m embarrassed to say that I’m in that category—taking far too long to reply. Is two days the appropriate mechanism? What does happen in the case of a spam filter? Where would you go? Where is the appropriate agency to, I guess, have it considered—if it’s appropriate or not?

I guess it’s more on a different side, but down at clause 53, which is amending section 139 of the Copyright Act, it’s basically clarifying around fax numbers. Now, far from me to tell the Government about legislation, but is it appropriate to be modernising legislation by including references to faxes in 2017? I remember when I first entered Parliament nearly eight years ago, the fax number was assiduously printed on the bottom of my business card—I wouldn’t even know where the fax machine is in my office. So while we’re doing the modernisation project of legislation, should we be including references to faxes? And if there are any statistics on how many fax machines are still in operation in New Zealand, that would be useful.

What we are talking about with the Copyright Act is severe penalties, including financial and criminal. When it comes to the provisions that haven’t been enacted by the Government, we’ve actually got the powers under the Copyright (Infringing File Sharing) Amendment Act to terminate internet customers’ internet access. Now, I think that’s an egregious step that goes far beyond the bounds, but when it counts on sending notices, a warning detection notice, via email, we need to make sure that those people—I think there’s been about 13 or maybe 17 cases under that existing legislation, popularly known as the “Skynet Act”, that’ve been applied. In some cases, we’ve actually seen people serving overseas in the New Zealand Defence Force served with these detection notices. So it’s important, as we modernise our legislation and the way Government departments interact with each other and with New Zealand citizens, that we’ve got the appropriate rules in place to deal with these important questions. Kia ora koutou.

I call the Hon Tracey Watkins.

No—Tracey Martin.

The CHAIRPERSON (Hon Anne Tolley): Oh, Tracey Martin. Sorry.

Thank you, Madam Chair. I just would like to rise and just address the questions from the Hon Grant Robertson with regard to—there were two questions that he asked. He asked whether I had been advised of any issues around using audiovisual links in a range of different proceedings. Just to be clear, audiovisual links have been used in a range of proceedings for a number of years, and there have been concerns vocalised about the possible risks involved with the links breaking down, with there being a breach to the link at the time that the individual using it—audio-linking in—is actually either giving testimony or having these discussions. The agencies that will be using audiovisual links will implement a range—and learn from a regard of lessons that have been used from the existing use. So this is an area of constant improvement. So while it’s certainly not risk-free, it is something that—it’s not 100 percent brand new. Some organisations have been using it, and lessons there are learnt.

Also, as we implement this opportunity across Government departments, these things will be dealt with, and we will progress best practice and other ways to make sure that we minimise the risks, but they don’t need to be dealt with in this bill. This bill is really updating that opportunity for those who have the capacity and are safe, and with a minimal amount of risk, to actually be able to use this facility. So there’s a bit of futureproofing in there.

The Hon Grant Robertson also asked about concerns—and can I just pick up on the two days, that there’s two days to say that you’ve received the email. I did give the example of—for example, today I think I received by midday 309 emails. There is, you know, some likelihood that it will take me a couple of days to go through them. But the responsible departments are looking at preparing guidance notes and coming up again with a best-practice outline around expectations of when and how agencies will use this opportunity. And then the Commerce Commission is one of the agencies that we believe will be taking advantage of it.

So these expectations would help to ensure agencies use email notices effectively, to make recipients aware of the relevant notifications—for example, how to ensure that the email is marked as being important. So out of those 309 emails I got, if I got an email notification from a Government department, we want to make sure that it would be highlighted or have an alert or the red exclamation mark on it, so that it draws my attention to it among the multitude that I have.

There were two questions also around how would the agencies ensure that they were updating the email addresses that they have. I think that’s a valid point for Mr Robertson to make—that is, the onus is going to be on the agency to do exactly that. That is the point of the piece of legislation—that they must prove that it was a current, working email. So it’s certainly going to be on the agencies’ responsibility to update its records and make sure it has the most recent contact data on it. If it isn’t, then it doesn’t apply. That’s the first thing.

With regard to Mr Hughes’ comment about the spam folder—he raises another very interesting issue and I think that’s something we’re going to have to manage, as, again, this is the environment we’re currently in. Government departments need to be able to use email to send out notifications. This is 2017.

But, taking that on board, if one particular Government department is always recognised by a particular email provider as being spam, then I think that Government department needs to probably have a look at how many notifications it’s sending out, and what are some of its key words that might be in either its address bar or whatever that may be picking it up and popping it over into the spam files. So I hope that has answered the questions from the Hon Grant Robertson.

I move, That the question be now put.

Thank you very much, Madam Chair Tolley. I would like to make my first contribution on this bill, speaking to Subpart 3, clause 53, which amends section 139 of the Copyright Act 1994.

I want to pick up on the topic that my colleague Gareth Hughes raised around the treatment of fax machines. But my questions to the Minister are slightly different than the ones that Mr Hughes raised. I note that, as best as I can tell, this is the only clause in Subpart 3 that refers to notices that are faxed. I don’t know whether that is because it’s not anticipated that the other types of notices will be faxed or if those are sufficiently dealt with in the primary legislation.

New subsection (2B) says: “A notice that is faxed to a claimant or any other person must, in the absence of proof to the contrary, be treated as served on the claimant or other person on the day after the date on which it is faxed, and, in proving that it was faxed, it is sufficient to prove that a fax machine generated a record of the transmission of the notice to the fax number.” Now, first of all, I’m a bit bemused as to why we get two days to find our emails but we only get one day to find our faxes. I’m not quite sure why that is. Anyone who’s still using a fax machine—and I don’t personally count myself amongst those people, but I’m sure there are folks who still use a fax machine—if they’re getting the kind of volume of faxes that one might get through email, why only one day, when you get two days to find your emails?

But I’ve actually got a more pressing concern than that, which is that in relation to both emails and posting—say an email was sent and your computer is not working that particular day. I think most of us have experienced our IT systems not working in our offices around Parliament and, probably, in previous lives as well. Now, that doesn’t mean that your email disappears. Once your machine, once the device that you are using to connect to your email server is up and running again, you’ll be able to get your hands on your email.

If your fax machine is not working on a particular day, it’s gone. The bill says that it is sufficient to prove that a fax machine generated a record of transmission, i.e., the fax machine that’s sent the fax has a record that the fax was sent, but it’s quite possible that the fax was not actually received. Unlike what we in the 21st century call electronic mail, email, that could mean the fax has disappeared altogether, and it could be difficult to prove to the contrary that the fax arrived. If you cannot prove that your fax machine was not working on the particular day that the fax was sent, then you have the record of transmission but you have no fax. You have no proof that you didn’t receive it, and therefore could be liable for whatever penalties or whatever consequences come about because of that.

So I wonder if the Minister has considered that, or if that was a matter that was raised at the select committee, because it does appear that, unlike a notice of determination that is sent through the post or a notice of determination that is sent by email—and I’m particularly thinking of email here—for a notice that is sent by fax, it seems that there is a potential for the person who should’ve received that message to have not, and have some difficulty in proving it.

So two questions there for the Minister. One, perhaps, is a little light-hearted—why one day, not two?—but the other one I think is actually a little bit more serious, given that there are consequences for people who do not respond to these notices. Perhaps it is that a notice of determination—the consequences for not responding to a notice of determination are different to not responding to a notice of suspension or any of the other communication that is referred to in other clauses in Subpart 3. But it’s a genuine question to the Minister that I would like a response to.

It is a delight to rise to speak on Part 3 of this bill. In particular, I want to raise perhaps some questions for the Minister in respect of the amendments to the Companies Act and, particularly, the notice that must be served by email.

Actually, for the Minister, I note that there were seven submitters in respect of Part 3—the Commerce Commission, the Library and Information Association of New Zealand Aotearoa, and the New Zealand Law Society submitted on the implications that the amendments to the service provisions might have.

As a recently former practitioner that was often required to communicate with various Government agencies by a range of different means, it is indeed useful to see that forms like facsimile are no longer the only means by which to communicate and receive notice and those types of things. But there is a point that was just raised by my learned colleague the Hon Iain Lees-Galloway and my good friend from the East Coast, Mr Gareth Hughes, just in respect to when email notifications are received. This is, indeed, the point that the Law Society was relatively concerned with, in regard to whether or not (1) the recipient had authorised the release of information to themselves as an individual, and then (2) whether or not it could be gauged adequately that they had indeed received that information.

I do note that the committee came back with some relatively sound responses and discussed the two main scenarios for non-receipt: primarily, that the communication wasn’t delivered at all—and I think my colleague Mr Hughes canvassed that relatively well—or it may have been delivered to the wrong address. I know for myself, and there are a couple of Millennials in the House, that we’ve had email correspondence for most of our lives now, I think, to a degree. We do go through email addresses constantly as we progress through our lives and our careers.

I guess my concern, or my note with this very sensible legislation, was just ensuring that emails that were received—the definition, sorry, that I wanted to just turn to was: used by the recipient. For example, in my case and I’m sure the case of many of our members here, you tend to have a few accounts that are open and active but that you don’t necessarily monitor at all times. I know for myself, I’ve got about four email addresses linked to my cellular device but there are probably about another three that I don’t actively monitor. So it’s not just the spam provisions that I’d be concerned about if notice was sent to some of these email addresses. So I’m just wanting to get some clarification about, I guess, the committee’s response to how you would gauge whether or not an email address is, in fact, used by a recipient.

The second point—I note that, of course, the Commerce Commission was absolutely in favour of these provisions because they are, in fact, common-sense, decent provisions that do tidy up an area of law. They do, in fact, address—I think it’s 17 statutes, and tidy them all up, bring them into a modern state. But it is an onerous obligation on all members in this House that we ensure that when we tinker with the law that it is, in fact, done—[Time expired]

Thank you, Madam Chair. I just wish to respond to the questions that have been put to me by the learned colleagues. First, with regard to Gareth Hughes, he asked a question about how many fax machines there were, actually—I’m hoping it wasn’t in New Zealand, but whether it was inside the parliamentary precinct. If he goes to the photocopy room on most of the floors, particularly in Bowen House—I’m not quite sure, here in the Beehive—I think he will find that there is a fax machine in every one of the photocopy rooms.

💬 Hon Gerry Brownlee: How does that relate to the bill?

It was a question asked, Mr Brownlee, and the Minister is responding to questions. With regard to what I think with Mr Iain Lees-Galloway’s—Mr Iain Lees-Galloway actually raised it: what would the proof be to show if your fax machine was broken, and whether you could prove that you didn’t receive it. I think it’s a reasonably valid question, because this is what the legislation does.

These are existing provisions. The conversation—the references to facsimiles, and so on, are existing provisions. I think one of the other parts of the bill refers to—actually, it was the Labour Party members and the Green Party members on the select committee for this bill that acknowledged the digital divide. They acknowledged that while we were updating these pieces of legislation for a digital environment, we needed to acknowledge that not everybody was moving at the same speed. So while I’m sure that the Millennials in the House might look with some, I suppose, amusement on the fact that the word “facsimile” is still there, there are still people who use them and we’re not going to remove those existing provisions, to accentuate the divide in any way, shape, or form at this time.

We do, however, acknowledge that the number of people with a facsimile is lessening. There are very few. We acknowledge that that may be an issue, that there may be the odd individual who will have to say, “My fax machine was broken on the day and it’s very hard to get a fax technician in these days.” So we will watch that on a case by case basis. The departments need to be reasonable and acknowledge these issues.

Why would you have a one-day clause with regard to receiving a facsimile, over a two-day clause of receiving an email? I think, for myself, the logic there is that it’s a physical appearance of a document out of a facsimile machine, as opposed to when I walk past my computer where the email has been sent and there is no flag up. It’s a recognition that the email is not a physical representation; it’s inside your computer, so therefore it’s not as obvious that it has actually arrived.

I acknowledge the contribution by the honourable member who talked about—particularly with regard to the Millennials—the number of email addresses that Millennials appear to have. I’ve just been educated on the number of email addresses that are possible, for a start. But with regard to that, again the onus is on the department to prove that it is a working email address. I guess the logic to me is that you use the reply button to some correspondence that has already been sent to the department from the person they’re trying to communicate with. I would only make the very practical suggestion to those who have such a number of emails to start using the forwarding device on your digital equipment to actually try and get them all into one place, so you know exactly what’s going on.

I move, That the question be now put.

A party vote was called for on the question that the question be now put.

The CHAIRPERSON (Hon Anne Tolley): The Ayes are 56, the Noes are 64. The motion will not be put.

I raise a point of order, Madam Chairperson. I’d like to correct the vote. I incorrectly voted ACT opposed. Apologies.

Madam Chair Tolley, it gives me great pleasure to stand and speak on behalf of the Electronic Interactions Reform Bill—almost as much pleasure as it does to be speaking to you as Chair, re the professional relationship we’ve had in the past. You were the Minister of Police at a time of another iteration of my life. I might say, Madam Chair, you did a sterling job, and I see that you’re continuing to do that same job today. With that sterling piece of obsequiousness, I’ll now go to the bill.

I’ve been interested, sitting here listening to talk, and we show the range of understanding—in fact, it’s been something of a case study in communications over the years. I suppose I was waiting for someone to talk about the Lamson tube, which I know many here won’t remember. That was a means of communication in my younger days, when I started professionally, whereby using a vacuum method we would send anything—written documents, cigarettes, anything—around the department that I worked in at the time. When I now see this bill, particularly Part 3, which has really entranced me—and I really would love to take the time to spend speaking about it now. In that part, we’re now talking about the ability to send messages, to send whatever we need, whatever is required, by electronic means. Finally, really—

The CHAIRPERSON (Hon Anne Tolley): I’m sorry to interrupt the member, but the time has come for me to leave the Chair for the dinner break. The House will resume at 7.30.

Sitting suspended from 6 p.m. to 7.30 p.m.

The CHAIRPERSON (Adrian Rurawhe): Tēnā tātou e ngā mema o Te Whare, tēnā tātou katoa. Before the dinner break, we were in committee for the Electronic Interactions Reform Bill and considering Part 3. Greg O’Connor had the call and has three minutes and 16 seconds remaining should he wish to take them.

Thank you, Mr Chairman. I just hope that I can regain some of the enthusiasm that I had for this bill before the dinner break. I had a very nice dinner, and I’m coming back now to try to just rebuild the passion I have for this particular part of the bill.

One thing I will say is that what we have concentrated on at the moment is that the real nub of this bill is the fact that we can now do things electronically that we haven’t been able to do before. I was just sort of regaling, or reminiscing, about the journey to this place that had this ability. I’d spoken about the Lamson tube and what we were able to do with that—sending pieces of paper and even cigarettes through the system, and all those different types of things.

Of course we then went on, following that, to the old teleprinters that often existed that sent messages around the country, usually overnight. In my experience, they were usually manned by retired navy gentlemen, who used to spend their nights up there, doing we knew not what. But, certainly, the messages used to get through. My own professional life was enhanced considerably by the Wanganui Computer Centre, which then enabled us to communicate at all sorts of times and dates. So when I look at Part 3 of the Electronic Interactions Reform Bill, I contemplate what is now going to be possible around these things.

Particularly one thing I do think should be brought up is that when we talk about this—the fact that we’re on the verge of Vodafone, one of the big providers, who are going to be discontinuing their own service system as a provider of email addresses. That will provide some issues, I would imagine, for those that have forgotten or have neglected to take the advice to change over to a new internet service provider. Nevertheless, I think the fact that one part of the bill that—despite some discussion through the committee stage where we would require the consent of those who would be receiving the information, I’m pleased to see that that was disregarded, because I think bringing consent to such provisions into the Act would really render it virtually inoperable for those who are likely, in the future, to claim that they hadn’t actually received the information.

The other thing, of course, is that in New Zealand we’ve always been very much ahead of the pack as far as the use of email goes. I remember I had a position representing New Zealand on a world stage, and as I handed my cards out in places like the United States, which we thought were the most advanced, it was some time before they actually had email addresses on the cards that I was receiving in return. That gave me some idea of how advanced New Zealand is in relation to our adoption of electronic means. Thank you.

Thank you very much, Mr Chair. Look, I would like to talk about clause 75. This is an amendment to the Trade Marks Act 2002, and it’s about section 139A, “Chief executive may suspend accepted notice”, which is amended. There are a couple of questions I have here. Look, I understand the efficiency that digital communications provide—of that there is absolutely no doubt. In fact, the Ministry of Business, Innovation and Employment (MBIE) is doing some fantastic stuff in this space around providing efficiency, and they’ve actually quantified it to a huge extent.

This is the thing that I’m just—and I’m sure the Minister in the chair has an answer; it’s an easy question, but I just wouldn’t mind knowing the answer. What it says here is, and I quote, “(2) After section 139A(3)(b) insert: (c) by emailing it to [a] person at an email address that is used by the person.” Now—at the risk of sounding glib—you’re never going to email it to an email address that isn’t used by the person, of course, but I’m keen to know: how do you determine whether an email address is actually used by the person or not?

The reason I ask that is, you know: does it have to be acknowledged? Does the CEO, or someone on behalf of the CEO, have to seek authorisation or have to seek confirmation that, in fact, this email address is one that is being used, or is it a defined time period—for example, if this person has emailed the CEO or an agent or someone within MBIE within one month, within three months, within six months?

Let me give you an example: I used to have a Hotmail address, which I used the whole time. I moved to Gmail. I don’t even know if the Hotmail address exists in any way, shape, or form. In fact, as Dr Clark mentioned, with the amount of stuff we get through the parliamentary server these days, I haven’t checked my Gmail address for a length of time. It is still operational.

💬 Hon Ruth Dyson: Oh, that’s why you haven’t answered.

Ha, ha! Send it to my senior private secretary. The reason I ask this question is: what defines an email address that is used? Is it a time period, is it an email confirmation back from the person, or is it some other test? The reason I asked that is because what it actually says in clause 75(3), for insertion after section 139A(3), is it says “insert:”—and I quote—“(4) In the absence of proof to the contrary, written advice that is emailed to a person must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the advice was emailed, it is sufficient to prove that the advice was properly addressed and sent to the email address.”

Now, the Companies Office could send something to Hotmail, because I have no doubt that at some point they had that as a valid email address. It will go to that address and there will be no bounce-back that says “Sorry, Stuart Nash no longer uses that address.” So according to this, what it says is they could send an email and they—well, the officials, I should say; the CEO—will have to make an assumption that that email is received. What I would have liked to have seen, to be honest, in this bill is—the test on whether an email address is used by the person should be a response from that person that they have actually received that advice. Now, don’t get me wrong; I’m not against emailing documentation.

💬 Hon Dr David Clark: You’ve got to use common sense—got to use common sense.

You do have to use common sense. The use of technology will drive innovation in a way that we haven’t seen for years—you know, ever. There’s no doubt about that. I’m all for innovation to drive technology—certainly in the small to medium sized enterprise - sector—but I do think we need to be a little bit careful. If we make assumptions that, you know, a good, hard-working tradesperson that’s been out there plumbing your house or digging your ditches or wiring your house is going to come home and check their emails every single day, then I think we need to test that assumption. It may be that email addresses are used once a week, it may be once a month, and that may be enough, but I think we have to be very careful about assuming that people use technology on a daily basis.

Let me give you an example—a very recent example: the Napier water crisis. The council put out something on Facebook, and we were supposed to know that. As someone of my age, who was on Facebook but not particularly competent, I don’t check Facebook the whole time. So we cannot make assumptions around the use of technology.

💬 Lawrence Yule: I knew it, Stu—I knew it.

Ha, ha! Mr Lawrence Yule, you should probably keep out of any debate around water in Hawke’s Bay at this point in time. What I would like to say is we need to test these assumptions, and what we absolutely need to do is, I think, in terms of validating any sending of electronic transactions, be assured that in fact it has been received.

Thank you very much, Mr Chair. Just in recognition of how this is supposed to work, where a member actually asks the Minister a question and the Minister is supposed to respond, I would like to respond to the very valid issues that have just been raised by my honoured colleague. Quite rightly, the gentleman has pointed out that one of the ways that a department would recognise that this is not a working email address would be a bounced message, and we’ve all received those. A secondary way, quite rightly—and the guidelines and procedures are going to be worked through with the departments—would be to request a read receipt. Now, that’s very logical and very reasonable.

I do want to raise with the right honourable gentleman that while he may have had a Hotmail address that may still be working, I would suggest that that gentleman is so popular that probably people are getting messages that his mailbox is really, really full and so not to use that any more. But if that is not the case, I would just suggest that the gentleman go and put a forward on that Hotmail address to his Gmail address, and then the other right honourable member’s email may get through.

The rebuttal presumption has always been in place inside this legislation. We’re trying to modernise the piece of legislation into a digital environment—fair enough—and so the rebuttal presumption has always been there. That means that the department has an onus on it to prove that it is a working address, and this was designed predominantly for business. I would have to say, as a trustee of a particular trust, that I have been receiving emails from the Charities Commission, and so on and so forth, advising me that my return for that particular trust needs to be in place by such and such, and such and such. So already some of this is happening, and a downstream effect of that is that if I don’t do it, that trust could be null and voided. So there is an onus on, and it was designed for, business.

Agreeably I take the member’s point around small businesses—small owner-operators, upon which New Zealand is built—and that will need to be taken into account by the department as they set the policies and procedures around how this will be implemented and used. The responsibility is on the department to be reasonable and sensible. I did actually seek advice on this over the dinner hour rather than just going off and enjoying myself, like perhaps some other members did. It had been raised around spam and any of these sorts of emails going into the spam file, or, as you say, into a non-working email address. We have Millennials in the House with seven email addresses.

It still is a defence to say “I did not receive it.” If we get to the nth degree, there is forensics that could be requested by the recipient to say “It went into my spam box. I did not open it.” Or, you know, “It’s five days, I’ve been in hospital, and I’ve been unable to clear my emails.”—all these are real. But, with regard to the business community, the onus is definitely on the business community to provide a working email address. If we think that they must provide an official physical address—so anything to do with the Companies Office—it is not unreasonable, with regard to business, and particularly larger businesses as opposed to our small and medium sized businesses, that they must ensure that they have a working email address for our governmental departments.

I hope that that answers the member’s questions, I hope it’s answered some of the other questions raised in the committee, and I look forward to more questions from the interested members of Parliament.

Thank you, Mr Chair. It is good to follow on from that conversation, because some of the questions I wish to raise in respect of clause 45, and the proving of delivery of a notice sent by a courier service, kind of go to the nub of the same issue. I was also going to raise some of those issues around emailing, and I want, before I get into too much detail, just to lift our sights for a moment and commend this bill, because what we are doing here—simply put—is bringing these interactions into the modern age.

If we continue doing things as we’ve always done, we would be running round on horses and carts, with people wearing funny hats, and delivering things and talking in funny accents to each other, all for the sake of propriety. Here we have a modern way of communicating via email or via courier, or in whichever way we’re doing it, that is about making sure that things are done efficiently, that the business needing to be carried out is carried out without undue waste, and that the resources that we all have—and they are limited—are used in the most sensible fashion possible. So I want to preface my comments with a general commendation, because I do think we are moving in the right direction with this bill.

I kind of want to despair a little at my colleague from Napier’s comments about his email address, because I do think in the case of email we need to apply common sense. It’s one of those things where I think most people in the modern world would have an email address that works, and I respect the Minister in the chair, Tracey Martin’s, comments around making sure that businesses have one that’s current. They wouldn’t be able to trade in the modern environment without a current email address, so it’s such a reasonable proposal that it would be hard to quibble with it. Certainly, in Dunedin most businesses have an email address, and they’re required to supply one for communications purposes—very sensible.

I want to delve into the courier service issue, because it seems to me that it’s the same kind of thing we’re doing here, but there are a couple of questions that come out of it for me. So, in general, my starting point is that I think it’s a good idea. What we have here in amended section 102(2) in clause 45 is that in proving delivery of a notice sent by courier service: “it is sufficient to prove that the document was properly addressed and provided to the [courier] service.” So I guess I want to ask what happens when that goes wrong—you know, who does the burden of proof fall on if the courier service does not actually deliver what was intended to be delivered? Is it then the responsibility of the courier service, or is it the problem of the person on the other end of it?

What would seem reasonable to me would be that somehow the courier service would bear liability for that. It can’t be that the Government sends things off via an unreliable service, or I guess the Government might—you know, if it’s interacting—bear responsibility for that. So, I guess: what is the intention, and what kinds of thoughts has the Minister had about how that responsibility is apportioned for delivery?

Let’s face it: we’ve all had that experience. Somebody says they’ve sent something in the mail and we should expect the courier to deliver it, and it doesn’t show up. Sometimes it just plain doesn’t show up. Sometimes we find out months down the track, when we’ve found some old postcard that says “We called and you weren’t here.”, and it’s been shoved behind that piece of wood that’s falling off the side of the house, or sometimes it’s been blown down the street. Certainly, I imagine people in Wellington would have that experience. In sunny Dunedin, it’s not quite the same. It’s more likely to be a sun-bleached notice, which can hardly be read. Each part of the country will have its own challenges in that regard. But, assuming one’s missed that notice, whose responsibility is it, because there can be serious consequences if that thing that is being delivered is incredibly important, as it often is with a courier service? Where does the responsibility lie, and what kind of logical process does one go through?

I assume it’s common sense we’re working towards here, as was the case when we discussed the email issue earlier. But in respect of a courier service, the fact that it was sufficient to prove that it was properly addressed almost doesn’t seem to go quite far enough, because we have tracking services, for example. Are tracking services to be considered the gold standard if the communication is particularly important or if it considers financial affairs or other such measures? Is there a bar above which a tracked courier service should be used to ensure that there is a traceability of—[Time expired] Mr Chair.

The CHAIRPERSON (Adrian Rurawhe): I will hear from the Hon Dr David Clark.

Thank you, Mr Chair. You know, is it enough—

💬 Jami-Lee Ross: I raise a point of order, Mr Chairperson. There are Speakers’ rulings and convention that when a Minister is seeking the call, the Minister automatically gets the call. I think you may have erred in giving the call to Dr Clark.

The CHAIRPERSON (Adrian Rurawhe): I want to thank the member. It is a convention, not a rule, and I have already given the call to Dr Clark.

Thank you, Mr Chair, and I thank Mr Lee Ross for his constructive engagement on this issue.

💬 Jami-Lee Ross: I’m here to help.

As he says, he is here to help. I think he’s trying to string out the debate. I think he’s just trying to string out the debate opposite there. He’s trying to make sure we all have interrupted calls and need rulings from the Chair, and so forth. I mean, it is an important issue, Mr Lee Ross, and I understand—[Interruption] Sorry, what was that?

💬 Jami-Lee Ross: I thought you had sick people to save.

Oh, sick people to save—sick people to save. Well, I mean this is an issue. If we’re talking about courier services, we could be talking about things that pertain to people’s health and well-being, because the stress associated with not receiving a package that one was expecting and that may or may not have been tracked does have an effect on people’s health and well-being. I would like to know if that is being considered. I thank Mr Lee Ross for his suggestion, because that was actually something that, until that interaction, I hadn’t considered. And that’s the beauty of free-flowing debate in the House. The House does often have the debate become things that may not have been considered and, of course, the committee of the whole House stage is the place where we can make amendments, if they are needed, or lay down the intentions to the committee in passing the law.

How is that taken into account, in consideration of whether a courier package that wasn’t received, how that affected the recipient and their subsequent response, whether they looked out for a package or not, or whether they’d received the email or not? One wonders whether there might be some good practice guidelines issued that suggest a courier delivery ought to be accompanied by or preceded by email communication. I guess if there are multiple routes followed, and that’s typically in the modern world what we do—I mean, sometimes if a message is particularly important, we’ll send an email to somebody, text them to say we’ve sent it, and then the email itself might say, “Expect a courier package.” I guess then there’s belts and braces.

But what we’re trying to do here, of course, is actually reduce the burden of responsibility on those who are sending the messages to a reasonable level. I wonder what thought has been given to the process of making the decisions about what level of communication is required; how frequent should the communication be? We live in a world where there is an enormous amount of communication and sometimes—and I will concede Mr Nash’s point that sometimes we can be bombarded with all this communication. It’s hard to sift through what the most important stuff is if there are lots of email addresses running, and I take the point about setting up a forwarding address that another member helpfully raised earlier.

But if there are all of these competing things, what is the best practice for communicating when something important is to be received? Does the ministry responsible—if there’s a ministry issuing notices—also have to give consideration to text messaging at a certain level of interaction if it’s regarding a significant transaction with companies, and has consideration been given to this? I hadn’t spotted it in the bill. I hope it’s not because I’ve missed it in my careful reading of the bill, but there’s certainly plenty of consideration given to email. I’m sure it will be something that came up in the select committee stage. I know Ms Dyson chaired the Government Administration Committee, and I’m hoping she will make a contribution. I’m sure the Minister in the chair, Tracey Martin, will know—but whether text messaging was considered as another level of interaction, and how would you know whether a text message had been received or not?

The reception of a text message is another thing. I think most people do check the text messages. Then, of course, the next thing that comes is your communications via other electronic messaging apps and those kinds of things that I hear the young people are using these days. Was your Snapchat received from the Ministry of Business, Innovation and Employment, or whatever? Where is this headed? I guess the Minister will have in mind the next bill that follows this, because developments are happening all the time and methods of communication are continuing to evolve. I expect this progressive Government will be looking at further legislation to ensure that we are not just ready for today but that we’re ready for tomorrow. So I wonder if the Minister in the chair has some thoughts about those other methods of communication that are becoming increasingly popular.

We know, of course, that when these things become too much, we see with mental health—and I am concerned as Minister of Health with the amount of social media that young people are receiving, and there’s some speculation that, actually, that bombardment of messaging is actually problematic. What thought has been given to that?

I thank the member, Jami-Lee Ross, for raising the issue of stressed caused and so on and the effect on people’s health of messages received or not received, tracked or not tracked.

Thank you very much, Mr Chair. Just a very short call to answer the questions from the member, David Clark—very reasonable questions, I think.

The question around couriers was particularly—I did ask, actually, specific questions around my staff. Not naming any particular courier company, but I think we’ve all experienced something that has left one place and his never arrived at where it is supposed to arrive. So, quite rightly, just by having a department say that it was properly addressed when it left here is no guarantee, obviously, that it is going to reach the other end. Certainly, the protocols and procedures around how this legislation will be implemented in a practical sense by departments are being developed.

You quite rightly point out that there are tracking services on a courier package, which would provide the proof for any department that it had been received by the person it should have reached. I do remind the member of mail—snail mail—and that there was a time actually in this country where Government departments sent out letters. And as the Minister for Seniors—with a different hat on—I know that we still do. There was no guarantee either, at that time, that it was received. New Zealand Post was very, very competent, but things happen. I do believe that that will be worked through as the procedures are developed. It has been raised, and it’s now on the record.

With regard to text messaging, Facebook private messaging, or Snapchat, I think it will be a long while before Government departments start to—well, I hope it’s a long while before Government departments start to Snapchat you or private message you on your Facebook page to tell you that if you don’t make that appointment or this appointment, something bad is going to happen to you. I think that’s just too informal at this stage—not saying it won’t be in the future, but that’s too informal at this stage. And I think that was probably—those were the major areas of questioning that the member had.

Just around the courier service, similar to what we’ve had with the letter mail service—

💬 Hon Dr David Clark: Multiple means of communication?

Oh, certainly. So multiple means of communication: I agree. There is logic and some reason to the issues you have raised. This is why—you’re quite right—the committee of the whole House is so valuable, not just to the development of the legislation but that the members of the department, the staff there, pick up these conversations, they pick up these nuances that are raised by members of Parliament—very valid conversations around pieces of legislation—and they can inform practice further downstream.

I can appreciate that. Before you were going to send something by courier, it may be that you send an email. The courier with a tracked device is a follow-up from that. But I still say that there is always the rebuttal presumption that has been entrenched inside the legislation. There is a defence there and logic must prevail at the end of the day. Kia ora.

I move, That the question be now put.

Thank you, Mr Chair. Thank you very much. May I take the opportunity, please, at this, only my second time speaking since my maiden speech, to congratulate you in your ascension to this role as an Assistant Speaker. I am not just saying that because, in doing so, you then allowed me to become your previous role of junior whip. I assure you I am sincere—

The CHAIRPERSON (Adrian Rurawhe): And the member needs to come to the bill. Ha, ha!

This is indeed relevant, sir. I would like to direct my comments today to Subpart 8. It alarms me how Subpart 8 has been overlooked throughout this debate up to now. This subpart sets out proposed amendments to friendly societies. “Friendly society” is not a term that you could place upon the members in the Opposition benches. But, of course, it is the Friendly Societies and Credit Unions Act 1982. There are those in this House that were not born in 1982. I refer to myself, the member for Pakuranga, the list member based in Maungakiekie for the Green Party, and I will come back to that—

💬 Hon Tracey Martin: There’s another behind you.

There’s a number behind me. I’ll come back to that point later if you’ll allow me, sir.

The Friendly Societies and Credit Unions Act 1982 is administered by the Ministry of Business, Innovation and Employment. It is an Act that consolidates and amends the law relating to friendly and certain other societies. It makes provisions for the formation and administration of credit unions.

When I was elected, I had a fear; I feared that I would have to stand in this House and talk at length about things that didn’t matter, but I’m so pleased to be able to stand here tonight and talk about something as interesting and as relevant as Subpart 8 of this Act. I take particular interest in this as there is a number of friendly societies in Wairarapa, where I am based. Members of this House might be interested to know that Subpart 8 amends section 26 of the Friendly Societies and Credit Unions Act 1982.

There’s a couple of points here, within this, particularly within clause 66, that I’m interested in, and I would like the opportunity to pose a couple of questions to the Minister. I do note that, in new section 26(1A), it proposes three parts: “(a) delivering it personally to the society or branch;”. I note that this actually makes minimal change to what is currently proposed. Now, Mr Chair, I note in the look that you are giving in this direction that perhaps you would like the two Ministers in front of me to keep their conversation quiet, and perhaps I might take the opportunity to ask them to do so, also. [Interruption]

The CHAIRPERSON (Adrian Rurawhe): Order!

Excuse me, gentlemen, you are taking up valuable time here. I’m trying to get through my speech. [Taps Minister on head] Where was I, Mr Chair? Perhaps I should start again.

New section 66(1A)(b) states, “sending it by post to the usual or last known address of the society or branch;”. Now, I note that this allows for the fact that there might be a change in circumstances. I think that’s fair. But let’s look at “(c) emailing it to this society or branch at an email address that is used by the society or branch.” It does not allow the same flexibility as (b). I note, however, that in the ministerial comments that were provided, it does state that, in New Zealand legislation, the burden has always been on the intended recipient to prove a failure of delivery when communications were by post or fax, and I congratulate the Minister on extending that out to email.

I mentioned earlier that there are a number of us in this House that were not born in 1982, and therefore I raise concern around the mention of this fax. The member for Pakuranga and the list member based in Maungakiekie and myself may or may not know what a fax is, and I wonder if the Minister would like to take some of the time of this committee to explain to us what a fax is.

The point is that I actually congratulate the Minister on including that. Yes, there might not be many people in this country that still use faxes, but the point is that I come from a rural area, and not everyone in rural areas has access to the internet. So I congratulate the Minister on allowing this archaic technology to remain in this bill, because it sets a very clear message to people that you’re not going to move away from those things that work now.

Thank you, Mr Chair. Again, as the convention has been since the last Parliament, I’ll answer the questions directed to me by the member. Just very, very quickly—no, I cannot explain to the member how a fax actually works. That would be Dr Megan Woods or somebody with a scientific bent. But what I can tell the member is that the device itself was actually invented before the telephone. So it’s been around for a very long time and it is still—

💬 Hon Member: I didn’t know that.

It was. Dr Google actually has explained that on the internet.

The other thing too is I need to correct a statement I made before with regard to the number of people who still use facsimiles. In the 1970s, there were 30,000 people in the United States who used facsimiles. This year there are 18 million. So you can see that the reason we have retained the comment about using a facsimile inside this piece of legislation, while at the same time updating it to new digital environments, is still very relevant and I do want to compliment the member on the fact that he recognises there are rural communities still on copper, some still on dial-up speeds or very close to dial-up speeds, where a facsimile is still part of the method of communication. Kia ora.

Thank you very much, Mr Chair. I’ve been quite anxious to speak on this bill, because there’s a point that’s occurred to me. Actually, it was something that was said by my colleague the Hon Stuart Nash, and it just triggered a train of thinking. Mr Nash spoke very clearly to—I think it was Subpart 8, was it? No, no, it might’ve been Subpart 10 about patents. It occurred to me that there is one of these subparts in Part 3 that is a little unlike some of the others. If we look at Subpart 1, it’s about amendments to the Commerce Act, Subpart 2 is about amendments to the Companies Act, Subpart 3 to the Copyright Act, and Subpart 4, if I can find it, is about—this might be a bit similar—the Corporations (Investigations and Management) Act, and so on. So they’re all amendments to various Acts, but one of these amendments to Acts is a little bit different. Even though it looks the same, it is actually a little bit different, and that’s the amendment in Subpart 9 to the Insolvency Act.

On the face of it, it looks very, very similar to the other subparts. What it does is it allows communications to be brought into the 21st century, and to be done by audiovisual and by email and so on. But I guess the difference with the Insolvency Act is that often people don’t want to be contacted in insolvency cases. In a lot of the other cases that we’re talking about here, people actually want to be in communication with Government. They actually want to receive the messages. They want to expedite their business, and it makes the utmost sense to have that done through email, or through audiovisual communication, and in such a way that it really expedites it.

But one of the things with insolvency is that, of course, you’ve actually lost all your money, you’ve lost your assets. You know, going bankrupt is quite a humiliating procedure for a lot of people, and they sort of feel that the last thing they want to do is deal with the Official Assignee. By definition, if you’re bankrupt, if you’re going through that process, you have no money. Now, that often means that you don’t have easy access to a computer. You’ve got to no easy way of receiving your email.

I was thinking about this a little bit further, because, of course, in my electorate of New Lynn we do find a lot of people who come to us and they say, “Actually, we can’t telephone your electorate office because we can’t afford to pay the cellphone charges.” And I say, “Well, what about emailing?” and they say, “We don’t have a computer at home.” Now, typically, people who are less well off, they’re going to go through the no-asset procedure. That’s for people who owe less than $47,000 of debt, but you can only do that once and then you’re into the insolvency procedures. I guess if you’re going through insolvency, the incentive is to avoid communication.

Now, we all know that with email, as my various colleagues have referred to, we all get masses of email, and it becomes quite a good excuse, actually, to say “I didn’t receive it.” or “Maybe it got lost in the spam folder.”, and so on. So I agree that we do put the onus that as long as it’s been correctly addressed we’ve got to make sure that it does get to the person, but there’s just this extra barrier when it comes to the insolvency cases and, I guess, the no-asset procedure cases of people who don’t want to be contacted, and then it really makes no difference whether it’s an email or a letter, or so on. So I agree it brings it into the modern age.

I guess the other thing that’s sitting in here, if we go to clause 70 of this bill, which amends section 165 of the Insolvency Act, it even says things like “A person who is summoned by the Assignee for examination”—well, they can agree to an audiovisual link. But, again, I just wonder how common that kind of agreement actually is in this rather difficult case of insolvency.

So I would appreciate it if the Minister could perhaps speak a little bit about how that particular case might be got around in the case of someone who is reluctant to be communicated with; they don’t actually want to be communicated with. I’m not sure how this is going to improve matters by using email. In fact, it just gives them an extra excuse.

As I said, it is a little different to the other clauses in this bill where we are dealing with situations where people do want to be in communication with Government, where they do want to understand what’s going on, and yet we have the opposite incentive in this case. So I would appreciate the Minister perhaps adding a little to explain this.

Thank you, Mr Chair. Like my colleague, I rise for the second time to speak and for the first time with you in the Chair, and I’d like to congratulate you on becoming Assistant Speaker. We’ve known each other for a number of years and it’s a well-deserved role.

This bill is an example of a forward-thinking, progressive Government. The Electronic Interactions Reform Bill is an omnibus bill.

💬 Jami-Lee Ross: We wrote it.

Well, you won’t speak about it, and I expect that when I check my phone or my emails I’ll have hundreds of emails from constituents saying, “Why didn’t we hear from the National Party?” I do have to look at young Simeon Brown there, who is someone who I’m sure understands modern technology, Simeon. It would be nice to hear from the member, but we’ll see how we go there.

Look, I’d like to begin by also paying homage to the fax machine. It certainly has been singled out during this debate. In defence of the fax machine, I know we do have a few in Parliament here. It’s actually quite interesting. I asked my executive assistant (EA) to send a fax—

💬 Simeon Brown: Have you got one? Do you have a fax machine, Jamie?

I do not have a fax machine myself, but I asked my EA to send a fax only two days ago. She hunted around the Parliament Buildings until she finally found a machine, but then unfortunately the machine was broken. But that’s OK.

There is a place for all types of technology but the reason I said that we are a forward-thinking, progressive Government is because this bill is talking about how we can use technology for people to engage. If we look at clause 44, it says: “A person may appear before the Commission … by audio link or audiovisual link if the Commission and the person agree.” It goes on to define “audio link” and “audiovisual link” and gives various examples. Now, the key here is around access. It’s about people having access to each other.

On the weekend I played in a sports tournament. I had not done any exercise for a long time and, unfortunately, my legs—I could barely walk on Monday. And I was limited in my access. If I had to meet before a commission, it would have been difficult. But it is important to have these modern technologies available. Access is defined as the means or opportunity to approach or enter a place. I’m excited that in this bill here we are talking about increasing access for people. It’s about equal opportunity, which I know is something that the Opposition members agree with.

Now, the members on the other side have been asking for access to a certain document, which is called the coalition document, for a few weeks here. I would just like to give the members some advice: maybe you could try faxing a request for the document. I don’t know how you might get on there. But just in terms of access, though, because it does relate to this point, there are three things in the coalition document.

💬 Jami-Lee Ross: Careful. Iain’s getting a bit worried.

There are three things in the coalition document that I’m sure I will be at liberty to say, and that’s, number one, fine weather until Christmas; number two, the New Zealand cricket team will win; and number three, expect the National Party to refuse to debate bills in the House. So, look, hopefully we do hear from the members on the other side. It would be nice to hear from them, and hopefully we do.

My final point I would also like to just mention is around emails. Certainly most of us have a number of email addresses, and a number of them are what we would call defunct because we don’t check them. In my calculation, I’ve got my current Parliament one, I’ve got two Gmails, a Hotmail, an Xtra, and I think I’ve even got an Actrix email, and that’s going back a long time. But it’s important that people do check their emails because otherwise you could miss out on important financial investment opportunities that come from various countries of the world via email.

So, look, in summary, it’s absolutely fantastic to stand in support of this Part 3 here. A forward-thinking, progressive Government, thinking of ways we can engage, thinking of ways we can improve access for members. Thank you.

Thank you, Mr Chair. Just to answer the questions posed by the last two speakers around Subpart 9, “Amendments to Insolvency Act 2006”, could I just point out to the members the amendment in clause 69, which amends section 143 of the Insolvency Act to permit a bankrupt—to permit a bankrupt—to “attend before the Assignee … by audio link or audiovisual link if the Assignee and the bankrupt agree.”

As a previous debt collector, I think it’s very important, the points that Dr Deborah Russell, the member previous to the one who just resumed his seat, has made with regard to those who are experiencing insolvency. While we might all think that they deserve their insolvency when we hear of people going bankrupt or becoming insolvent, there are those who become insolvent through the deeds of others. I believe this amendment is particularly important from the perspective that if you live, say, in a town such as Warkworth, where there is no public transport and where there is no way to get yourself to, perhaps, Takapuna, unless it is at a cost to yourself—for which, as the member pointed out, there are no funds available—there is often a council office or a sort of working governmental office that may have the technology that allows this audiovisual link to take place at no cost to the person who is becoming insolvent. So I do think that this is a very important measure.

But with regard to the question around email and, quite rightly, with regard to that person maybe having to strip themselves of all their assets to meet the criteria but also just to live on a day-to-day basis, the email address is being added as an extra tool for trying to communicate with people in these circumstances. The Official Assignee will try to use a range of communication channels to contact this individual. In some cases, a bankrupt may move to an undisclosed physical address, or otherwise try to avoid being contacted—and fair enough. They may move into a car, as many people in New Zealand, unfortunately, have had to do in the last nine years. Their email address may be the only remaining way, and they may use the library services and so on to actually continue to access their email.

So I just want to reassure the member. This is merely another tool in the tool box of a department, particularly around those with regard to the Insolvency Act 2006. This is not a once only, and not something that hasn’t been considered for those people who are attempting to not be found. Many opportunities will be tried; eventually, everybody is found.

I move, That the question be now put.

The question is that the motion be agreed to—be put. Those in favour say Aye—

💬 Hon Iain Lees-Galloway: I raise a point of order, Mr Chairperson. Sorry, sir, could you just repeat the question, please? I’m not quite sure that it was agreed.

The CHAIRPERSON (Adrian Rurawhe): I move that the motion be agreed to, and those in favour say Aye—

💬 Hon Iain Lees-Galloway: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Adrian Rurawhe): We were in a vote. [Interruption] You will have to wait until the vote is finished. Those against will say No. The Noes have it. A party vote is called for. The Clerk will conduct a party vote.

Thank you very much, Mr Chair, for the opportunity to speak to Part 3 of this bill. I want, as the Minister of Commerce, to speak to the amendments that are made, in Subpart 1, to the Commerce Act, pointing directly to clauses 43 and 44, around the ability of people who are asked by the commission to give evidence to appear either by audio link or audiovisual link. As the Minister in the chair has just said in her latest contribution, this is about giving further tools in this area, and that is something that, in terms of the new Government, we’ve been quite keen to give the Commerce Commission: further tools, and not just audiovisual and audio links, but the ability to look at market studies and to be able to self-initiate that themselves.

But, in this respect, we want to make sure that in important areas—especially around the likes of the Credit Contracts and Consumer Finance Act, which was amended by the previous Government in 2014—people who have been affected by the likes of third-tier lenders, payday loans, and higher interest rate caps, if the Commerce Commission were to ask those types of people in communities where access was difficult, get to make sure that their voices were heard. The ability to appear and give evidence by audio link or by audiovisual link is something that I think would be welcomed by those communities. As the Minister in the chair has said, those who might live in the regions where transport might be difficult—to get to a hearing that the Commerce Commission might be holding into this important area that we certainly want to move on, on this side of the House—might be constrained by their ability to travel. So if they were able to appear by audio link or by audiovisual link, that would give those communities, who, I think, it would be fair to say, are financially challenged, as it were, the opportunity to be able to give their evidence.

I think we do hear a lot of stories from our main centres, where we do see a lot of predatory lending, a lot of behaviour by people who are selling products and giving credit. It might be easier for those communities to be able to access the Commerce Commission if they knew where the offices in Auckland, Wellington, and Christchurch were. But if they were in other areas of the country that would restrict them from going to a Commerce Commission hearing, the ability for them either to phone in or Skype in, as is set out in clause 44, would be a very useful tool for those people, and also, I think, for the commission, to make sure that they get the wide range of views on an issue such as that, as could be done in that fashion.

My question to the Minister in the chair, Tracey Martin, is because the clauses, I believe, in Subpart 1 apply only to the Commerce Act. And I understood, as I had a quick flick through—something else in my realm—the Fair Trading Act has, essentially, the same function. Is this ability spread out to other departments? I’m absolutely very happy that we can do it for both the Commerce Act and the Fair Trading Act, but my question to the Minister is whether we are thinking about doing this in other respects, to ensure the regions—I note that the Minister’s party is very keen on making sure that their voice is heard—have the ability to make sure that they feel part of the discussions that are going on, whether that be around competition or whether that be around third-tier lending, payday loans, or interest rate caps, which are some things that I would like the Commerce Commission to look into. As the Minister, that’s something that I’d be keen on.

There could be numerous other things that the Commerce Commission might call for evidence to be given on, and I think the ability of people outside of our major centres to, by these audio links and by these audiovisual links, make sure their voices are heard is extremely crucial. So, if the Minister in the chair could elucidate as to other areas where this might be done, I think that might be very helpful for the knowledge of the committee.

Thank you, Mr Chair. I’m very happy to be able to play a part in this remarkable debate. I might say that earlier on in the debate I was, in fact, on the verge of calling a point of order—right at the start of the debate—because the Government’s legislative programme had proceeded so swiftly that there weren’t actually, at the point this debate came along, copies of the bill on the Table. But Government members are so seized of the issues in this bill, and so well researched, that I think, as everyone can see, they’ve been deeply, deeply engaged in this debate and its details. In my comments—

💬 Kieran McAnulty: Not like them.

That’s right.

💬 Kieran McAnulty: They don’t care.

I’m not here to judge, Mr McAnulty. I think this is a bill the Government is proud of, that we’re proud to speak to, and I think that the community’s going to judge us and our Opposition on our contributions.

There are two areas that I want to cover off in my comments, and those two comments relate to the degree of legislative consistency that this bill—

💬 Hon Member: We’re enjoying seeing your Ministers. They haven’t got anything to do.

💬 Kieran McAnulty: Outrageous. Sit there and bloody call things out, but you won’t say anything.

Mr McAnulty might want to learn something about legislative consistency, if he’ll just lend an ear out. The degree of legislative consistency that comes through this bill across a wide range of Acts—I want to talk about that and the value of that, and then there are a number of questions that I do have for Minister Martin, relating to some of the particular words that have been used at various points of the bill in Part 3. Finally, if we get time, I want to talk about some of the issues that arise around the onus of proof that have come through in the course of this debate.

So let’s start by talking about the legislative consistency that we see echoed from one end of Part 3 to the other. I’m very pleased that my colleague the Hon Kris Faafoi’s here, because, of course, Part 3 particularly relates to the commerce and consumer affairs area, and as a past Opposition spokesperson in that area—I mentioned it to Mr Faafoi—he was keen to run down and participate in this debate. There is a huge number of bills—there is a huge number of bills—that Part 3 affects: the Commerce Act, the Copyright Act, the Corporations (Investigation and Management) Act, the Designs Act 1953, the Fair Trading Act, the Financial Advisers Act, the Friendly Societies and Credit Unions Act, the Insolvency Act, the Patents Act, and the Trade Marks Act. Across Part 3 we’re dealing with all of these Acts.

You know, some members of the Opposition in some of their comments have sort of suggested perhaps this isn’t a particularly important piece of legislation, but when you think about that body of legislation, those things touch on many areas of our economic life, and what we’re dealing with here is the way in which citizens relate to the Government entities that oversee those areas of their economic life. That speaks to the importance—and the beauty of Part 3 of this bill is that we’re putting consistent legislative provisions over the top of every single one of those Acts. So citizens or businesses or NGOs—any kind of entity that is now having an interaction with Government in this area, no matter what the piece of legislation, has consistent provisions and consistent languages to describe their obligations to communicate by means of electronic interactions with those Government agencies. I don’t think we should understate or undersell the value of that, from the point of view of having quality legislation that is accessible and that reduces compliance costs for those people who engage with the State. I think that’s something we should put up a bit of a cheer for.

Just moving on to a few of the questions that I have for the Minister—if I could beg the Minister’s indulgence, some of these questions might seem to be taking a bit of a deep dive into very, very specific wording and interpretations, but for those people who are familiar with English literature, there’s quite a well-known bit of wisdom about short stories. It says that in the first paragraph of a short story, if there is a reference to a coat hook on the wall, then by the end of the story you want to know why it was there. That’s the thing about the words that we put into legislation. We have to know why they are there, because you can bet your bottom dollar that over the next 10 or 15 years some citizen or some lawyer will want to know, and will possibly test that, and it will have real-world consequences. So, building on from that, there are a few of these things that I do really want to delve into.

The first one relates to—where are we here—clause 45, new section 102(1)(d), which is emailing it to—there are some changes from the Government Administration Committee here. The select committee has added in words. It originally read “emailing it to an email address used by the person.”, and the select committee has added in the words “the person” and “that is”, so that the full text of (d) now reads “emailing it to the person at an email address that is used by the person.” If you’ll forgive me for bringing up the spectre of former President Bill Clinton, I want to look at the definition of the word—[Bell rung] Mr Chair?

The CHAIRPERSON (Adrian Rurawhe): Michael Wood.

Thank you, Mr Chair. I want to look at the definition of the word “is”.

💬 Hon Tim Macindoe: I raise a point of order, Mr Chairperson. For some time now, I’ve been in the Chamber, and I’ve been noticing that you are studiously avoiding calls from this side of the Chamber. Given the fact that this is the Opposition in a committee stage, I am wondering if you can explain what your basis is for allocating so many calls to the Government and consistently ignoring calls from the Opposition.

The CHAIRPERSON (Adrian Rurawhe): I disagree with the member. [Interruption] No, I don’t need any help, thank you. It is the sole discretion of the Chair to choose who speaks next. Michael Wood was on his feet. He clearly hasn’t finished making his point. I decided to give him a second call, and I disagree that I have not been fair in taking calls.

💬 Hon Iain Lees-Galloway: I raise a point of order, Mr Chairperson. Not only is it absolutely your discretion which calls you accept, but for that member to question your integrity in the way that he did is disorderly, and he should be required to withdraw and apologise.

The CHAIRPERSON (Adrian Rurawhe): No. I think everyone needs to calm down. I have taken a number of calls that have been closure motions from the Opposition, one of which I have put. It will cause disorder if we continue on this line of discussion. I suggest that we go to the member Michael Wood, so he can finish his speech.

Thank you, Mr Chair, for a wise, considered, and fair ruling.

💬 Hon Tim Macindoe: I raise a point of order, Mr Chairperson. Mr Chairperson, I’m sure that member has been here long enough to know that for him to comment on your ruling in that way is totally disorderly.

💬 Hon Stuart Nash: And, Tim, you’ve been here long enough to know you can’t question the Chair’s choice of who speaks and who doesn’t speak.

💬 Hon Tim Macindoe: I raise a point of order, Mr Chairperson. It is absolutely disorderly for a Minister to be influencing the Chair while he is considering his ruling.

The CHAIRPERSON (Adrian Rurawhe): OK. We can do this the easy way or the hard way. It’s really up to members, OK. I want to hear from Michael Wood about the bill. I take on board the comments from Hon Tim Macindoe. I ask the member to continue his speech.

Thank you, Mr Chair. I know that people will be eager to get back to my comments around the definition of the word “is” in clause 45(1)(d) of the bill. I’ll just recap, clause 45(1)(d) is now reconstructed by the select committee to read, “emailing it to the person at an email address that is used by the person.” Of course, the word “is” is a tense of a kind. It denotes a certain point in time, and that really is my question.

We’ve explored to some degree in some of the contributions earlier on the question of multiple email addresses. “Is” denotes that it is an email address that is currently in use. Of course, this begs the question of: well, how do you define that and how do you determine whether it is a current email address? Does that mean that it is an email address that someone has used within the last week, the last month, the last year? An email address that has simply been a passive account into which the person receives emails, perhaps views them, or does “is” denote that it would have to be an active email account by which they’re actually responding to emails?

The reason that I do ask about this is not so much in terms of the point that the Minister in the chair has made before about the onus being on the business to make sure that up-to-date details are there, because we would expect that businesses who are playing it by the book, are organised, and are wanting to be cooperative would do that. My point really relates to the enforcement side where you might have people who don’t want to deal in an honest and upfront way with Government entities, who, essentially, try and play a bit of a game with this provision by arguing that a certain account is not—perhaps because they’ve deliberately not checked it for a few months because they don’t want to be engaging with the entity about a matter that might be in dispute or a matter that might be, I don’t know, heading towards a prosecution or a complaint of some kind. So it would be really helpful to hear from the Minister in the chair if there’s been any dialogue with officials or anything like that about how we’re going to interpret that word “is” in respect of whether an email account is, indeed, an active one. I think that would be really good to hear.

One of the other questions I had for the Minister—here we go. It’s in Subpart 4, and it relates to clause 58(1)(b). I’ll just read it out as amended by the select committee, “emailing it to the corporation or associated person at an email address that is used by the corporation or associated person.” Now, originally, the text of that clause simply said “emailing it to an email address …” and the select committee has added in the words “the corporation or associated person …”. So, previously, it would’ve seemed to have been valid as long as the email had gone, as long as it had gone to the email address. Now, there must be some reason why we’ve added in the words “[to] the corporation or associated person …”, and I’d like to hear from the Minister exactly why that is, because that, to me, would seem to denote that there needs to be some kind of heading or subject line that addresses the particular entity. Again, the concern here is that if we have people who are wanting to be cute, who are wanting to play with a bit of fancy footwork, they might be able to claim that because the email doesn’t identify who the corporation or associated person is, even though it has gone to their address, it may not be valid, and the addition of those words would seem to suggest that there is some significance there. So that would be really good—to hear from the Minister as well.

The final question that I have relates to clause 51(4). This starts to come to some of the onus of proof. The wording added by the select committee at the end there, and this echoes across all subparts, is “and, in proving that the advice was emailed, it is sufficient to prove that the advice was properly addressed and sent to the email address”. I think we can all understand the reasons why those words are there. But the fact is that there is always going to be a natural justice cloak that comes across all of the provisions of this Act if ever it is tested in the courts. My hypothetical question to the Minister is: what if we have the situation of a third-party deleter? So if we know that in accordance with the bill the advice was properly addressed, it was sent to the correct email address, to the person it was meant to go to, but somehow, possibly unknown to that person, a third party, a family member or someone else, has deleted that email, possibly mischievously or possibly not mischievously—there would have to be a natural justice component there and I’d like the answer to that.

Look, it’s extraordinary this. I think this is a wonderful bill. [Government members cheer] I find it quite heartening that I’ve got such a positive reaction from the Government. I find it quite extraordinary, actually, that we see this. This is a valuable piece of legislation, there’s no doubt about that, very important. But it’s quite interesting that the Government are filibustering their own bill, albeit that it was a National bill.

I think many experienced parliamentarians would wonder if they’ve crossed into a parallel universe coming in to hear a bill, a very valuable bill, being debated by and filibustered by senior Ministers in the Government, albeit that it’s very important, this bill.

Electronic interactions are absolutely essential and, as the Minister in the chair, the Hon Tracey Martin, will know, we need to move to this right across our economy and as quickly as possible while not leaving other people behind. However, having all these Ministers in here giving five minutes on this you’d have to wonder, “Why aren’t they busy in their offices?” An open question; I don’t know.

💬 Hon Member: Nothing else to do.

You need to engage with your sectors. Anyway, I’m quite happy with the bill in its current form and the work that the Government Administration Committee did, and I commend it to the House.

I take great joy in speaking on a bill that modernises over 17 pieces of legislation to help enable digital interactions between individuals, businesses, and Government. It’s a bill that is part of wider efforts towards digital transformation across the Government to meet New Zealanders expectations and to have public services that are easily and readily available through digital devices. It’s a bill that continues New Zealand’s transformation to be a leader in Government digital transformation.

In Part 3 of this bill, the Government Administration Committee recommended a new clause, clause 61A, to amend the Fair Trading Act 1986, in particular to allow compulsory interviews to be held by audio or audiovisual link with the agreement of the person and the Commerce Commission. This amendment, which is similar to clause 44, I note, that amends the Commerce Act 1986, has been made.

So I’d like to just take a look at that, indeed, in terms of what’s proposed in the bill. So in terms of “audio link”, this clearly means telephone facilities, and that’s great because most New Zealanders have clear access to an audio link. But the second, in terms of audiovisual link “means facilities that enable audio and visual communication between the Commission and a person when either or both of them are not physically present at the place specified in the notice.”

So what you really need to be assured of here, if that option’s taken, is that you have fast internet to have that audiovisual connection happening. We need to make sure that, if that option is being offered to members of the New Zealand public, that those in rural areas of New Zealand that are currently largely operating still on copper wire are able to have fast access to internet. I know places not too far from here in Hutt South on the western hills—actually not far from my house—that struggle to have fast internet as New Zealand is not getting up quickly if we want to make these changes and become a far more digitally able Government interacting with the public.

There are also issues in that space we need to look at. Maybe someone’s got a shared driveway and is waiting for consent to get fibre put down. Maybe you’ve got a particularly grumpy neighbour who’s not prepared to give you access. So it’s important that if these options are being made available that people do get access to fast internet.

I would also like to look at some of the recommendations made by the committee in terms of amendments made to the Copyright Act of 1994, which it does. In fact, clause 54 makes amendments to section 144A of the Copyright Act 1994, and I’m sure that the members opposite will be quite familiar with this piece of legislation. You wouldn’t want to “lose yourself” too quickly on that one.

The next time, perhaps, that the National Party has a concern in terms of breaching the Copyright Act under any of those spaces, they can look forward to being able to do that on an audiovisual conference—if it happens again. I did also note that “Lose Yourself” is actually the number one hit by Eminem, but the number two, which they should’ve thought about using instead, was “Love the Way You Lie”. I thought that was actually far more fitting. Number three happens to be “Smack That”—maybe that was after the election.

The CHAIRPERSON (Adrian Rurawhe): The member needs to come back to the bill, please.

Just to conclude, it’s a great pleasure to be able to speak on a bill that really brings New Zealand Government up to speed with digital transformation, but we do need to make sure that we are really enabling that technology to be fully available to all New Zealanders. Thank you.

I move, That the question be now put.

Before I call the Hon Stuart Nash, can I say to members that relevance is becoming an issue, in that the notion around access across all subparts of Part 3—it’s not enough for members to simply repeat the same argument in every subpart of the part. So I’m asking members to be relevant, and it’s also not helpful for other comments to be made during their speeches.

I would like to talk about Subpart 6, “Amendments to Fair Trading Act 1986”. Clause 61A—this amends section 47G, “Commission may require person to supply information or documents or give evidence.” First of all, I’d just like to make a point: it says, “Commission may require person …” Shouldn’t it be “a person”? It doesn’t really matter. I mean, everywhere else in the bill it talks about “a person” as opposed to “person”. It doesn’t really matter; I’m just making that point.

There are a couple of points I would like to make about this clause, and the first one is: why is it that the commission “may” only require a person and doesn’t compel a person to supply information or documents and evidence? I just wonder, under what circumstances—because the Fair Trading Act is sort of fundamental to, well, as it says, the fairness of our retail sector or how commerce works, I suppose, in this country. Does the commission, in any other part of the Act—I haven’t got the Act in front of me. Is there any other part under the Fair Trading Act where the commission can actually compel someone, under the Fair Trading Act, to provide information or documentation or evidence? The reason I ask this is because if the commission does not have the power to compel, then it is very easy for someone to just say, “No, I’m just not going to engage with the commission.” If one side decides not to engage with the Commerce Commission on this, then, again, the logical next step is that justice is not seen to be done.

The other thing I would like to talk about on this is new section 47G(1A) in clause 61A. This is where we insert “A person may appear before the Commission”. We’ve talked about audio and audiovisual; I’m not going to talk about that at all, but what it says here is “A person may appear before the Commission under subsection (1)(c) by audio link or [video] if the Commission and the person agree.”

Now, my question around this is: where does the onus sit? So, for example, if the person agrees, must the commission agree, or does the commission have the right not to agree? Or is it the other way round? So if the commission agrees and the person disagrees, is that enough? I would’ve thought that that is the logical way that this should run, but I am concerned—well, I would just like to know, and I actually think it should be clearer. If the person agrees, then I would almost compel the commission to agree as well.

The reason I say that is, again, it may be—and I’m not saying this is, by any way or any stretch of the imagination, going to happen—that the commission might say, “Well, you live in the very Far North. We’re going to disagree to you appearing in front of a video or audiovisual link”. What that does is it places an undue cost or burden for that person to actually come down and meet the commission in person. So what I would like to see here is that if the person agrees to meet by audio or visual link, then the commission must also agree to do the same.

Part of that question is also: under what circumstances would the commission disagree? Let’s make an assumption here that, as the law reads it, the commission may disagree to meet with someone—if the person agrees, the commission may disagree. Under what circumstances would the commission disagree to meet with someone via audio link or audiovisual link? I can imagine that there might be a time—and it may be that they believe the evidence cannot be delivered in a way that allows justice to be delivered. But I cannot think of any situation where the commission would not agree to meet a person if they had agreed, as mentioned, because the burden could be far too high for a person to come down to, let’s assume, Wellington or Auckland—I don’t think the commission would go anywhere else. And why would they? I know there’s not a commission in Kaitāia, for example.

But this is about reducing the burden of compliance or the onus for someone to appear in front of the commission. So I think this should actually read that if the person agrees, then the commission should agree. That’s all I’ve got to say on that matter. Thank you very much.

Thank you, Madam Chair. I’ve been waiting a while to make what I hope are some very salient few points. It is a pleasure to speak to yet another technical bill in this House. I would like to focus my contribution on a few points.

By and large, the topic of debate has focused largely, in Part 3, on that of “notice by electronic means”. I would, however, like to draw all of the members’ attention to “evidence … by electronic means”. In clause 44, the amendment to section 98 of the Commerce Act 1986 is amended such that “A person may appear before the Commission … by audio link or audiovisual link”. I find it incredibly interesting that only just now we are adding and updating the ability for people to appear or provide their contributions by audio link, which I can only assume is the humble telephone, the telephone being that which was invented in the 1800s—very controversially, obviously—by Alexander Graham Bell, although that is in dispute as a matter of history.

Moving along, I would like to draw attention back to something that was actually mentioned by the Hon David Parker, but I would like to get the Minister’s input on it, which is mentioned in amendment to a multiplicity of different Acts contained in Part 3, which is along the lines of sending it by email address to an electronic address. I looked up the Oxford Dictionary definition of “email”, and that is “Messages distributed by electronic means from one computer user to one or more recipients via a network.”

Here I wish to raise the question of whether this network could be interpreted by the courts as a social media network. I note that the Hon Tracey Martin, in previously addressing a question similar to this, noted that there perhaps isn’t contained the level of formality in the likes of social media. But I then looked up the Oxford Dictionary definition of “email address”. An email address is simply defined as “a string of characters which identifies a location on the internet or other network to which an email can be sent; this information considered as a point of contact for a particular individual, organisation, etc.”

So on that point I would just like to raise that the courts would obviously be interpreting this Act and what is meant by “email”, with regard to the Interpretation Act 1999, section 5(1), obviously noting that “The meaning of an enactment [is] ascertained from … text … in … light of … purpose.” The purpose here, as has been mentioned by the Minister, is an extra tool in the tool box of communicating between organisations and those individuals who they intend to contact.

So I would simply like to put it that there is the potential here for the likes of unintended consequences as technology develops, and I would like to put it to the Minister that I would very much like to be enlightened on whether there has been very much consideration of the use of social media. Thank you.

Thank you, Madam Chair Williams. Just to answer some of the questions put by several of the members earlier, can I first, just with Mr Faafoi—I think it was Mr Faafoi—he talked about whether audio links and audiovisual links were currently in use in a wider sense across departments or was there any intention to have wider use across Government departments, and so on and so forth.

Mr Faafoi will of course be aware that select committees in the Parliament do, from time to time, use audio links and did have the capacity for audiovisual link. So I can say that the Parliament, not perhaps as often as it should, but it does have that capacity to Skype in submitters. I also visited a remand centre recently, where a young person there was, by audio link, involved in a family group conference with 15 to 20 other people.

I think that what we’re seeing is that possibly this legislation is updating some of the other departments who, I’m sure, have been emailing people, but this is giving them the legislative parameters by which to create the policy to formalise the practice. I think that’s probably a reasonable statement.

With regard to Mr Stuart Nash’s point about the omission of an “a” before “person”, I have been advised that it is drafting practice not to include articles such as “a” or “the” in titles of provisions. So that would answer that, Mr Nash, and, actually, in my copy it does not say “person”, it says “persons”—“enable persons”; not my copy of the bill but my copy of the papers—just to be clear.

With regard to the last question asked by the honourable member who resumed her seat, Chlöe Swarbrick—no, I have not had any further conversations particularly around the Oxford Dictionary definition of email address being a string of characters that lead on to a communication, or any forward planning with regard to the use of social media. I totally accept what the member is saying, that the digital environment continues to evolve and communications with human beings continue to evolve through different devices and through different methods. But I haven’t had any advice at this stage or any suggestion that we will be, say, putting private messaging on Facebook, or whatever else, into the legislation going forward. Kia ora.

Thank you, Madam Chair Williams. Just one quick question to the Minister in the chair, Tracey Martin. A lot of the debate tonight has been around how technology is advancing and how electronic communication is making our lives easier and communication faster. But I did just want to ask one question in relation to clause 56(4), which replaces section 217(3), where in this instance it’s, I guess, what we’d call traditional means of communication, i.e., post—the old post service—and the regression of that service. New section 217(3) talks about replacing a clause in the Copyright Act around a summons being sent to a person. I’ll read it out, for the benefit of the committee. It says: “A summons sent to a person in accordance with subsection (1)(b) must be treated as served on the person at the time when it would have been delivered in the ordinary course of”—and the select committee has removed the word “post” and inserted the words “business for the service it was sent by.”

I think that kind of points to the way that the normal post service, as we have traditionally known it, has changed over time, because we are sending much more electronic traffic. The reality for New Zealanders is that the post that used to arrive six days of seven days of the week is now arriving sporadically. Some people may get it on a Monday, Wednesday, and Friday, and other people in maybe more regional areas of the country may get their post only two days a week.

I am wondering if officials have thought about that in terms of a summons being served on a person and that person’s ability to respond to it, if they have cause to challenge the summons. Someone may have a longer period of time to deal with a summons being served, because their postal service, as it stands now, is more regular or irregular than it might be for someone in another area.

You might get your post only on a Monday and a Friday, which I understand might happen with some people who might not necessarily be served by New Zealand Post as their delivery service, as opposed to a New Zealander who might get their post delivered on a more regular basis, which in traditional terms wouldn’t be as regular as it has been over decades.

Whether or not—if they did want to challenge their ability or the summons that is being served on them, from one person to the other, I wonder whether the officials have thought about whether or not the length of time that they’ve actually had to consider a summons is something they could challenge in the court. If someone is served a summons and it has a time frame about when they might have to appear or when something has to be delivered as part of that summons, if you’re getting your mail on a more regular basis you’ve got more time. If you’re not getting your mail on that regular basis, you have less time, depending on when the date of the deadline in the summons might be. That might put some people, in areas that aren’t being served as regularly, at a disadvantage to others.

So I’m just wondering if officials have thought through that potential conundrum, because of the way that our traditional postal service is now operating, where the mail doesn’t come as often as it used to.

The question was put that the amendment set out on Supplementary Order Paper 7 in the name of the Hon Tracey Martin to Part 3 be agreed to.

Amendment agreed to.

Part 3 as amended agreed to.

Part 4 Enabling electronic licences and electronic voting