Customs and Excise Bill

Thank you, Mr Chair. I’m pleased to continue my contribution—third time lucky—on this committee stage of the Customs and Excise Bill. If you could indulge me while I sort of get back up to speed again, but this is a comprehensive bill whereby we are wanting to bring the New Zealand Customs Service up into the 21st century. It’s about modernising and updating their processes and, obviously, the empowering legislation. In this debate, we are covering the theme of the powers and obligations.

I was mentioning in my earlier sections to this contribution the powers that reside with the Chief Executive of the New Zealand Customs Service. I note that there is a continuation of the title for the Chief Executive of the New Zealand Customs Service being referred to as the Comptroller of Customs. As I understand, the title of comptroller goes all the way back to 1910, so we’ve had over 108 years of the head of the New Zealand Customs Service being referred to as the comptroller. I guess my question to the Minister of Customs is: as we are modernising the New Zealand Customs Service through this legislation, why are we continuing with the term “comptroller” for the administrative head of the New Zealand Customs Service?

Right throughout the legislation it’s referred to as the chief executive, and, I guess, “comptroller” appears to me to be a very archaic term. It doesn’t really align with hauling the New Zealand Customs Service into the 21st century. We know that chief executives have been established under the State Sector Act for a very long time and, I guess, I really want to go a bit deeper just to understand why we have the term “comptroller”. What’s in a name? Are there any express or implied powers that reside in a comptroller, whether it be at law or however—some sort of extra powers that derive under that title which are separate to the powers conferred under this bill? It is such a very historical and quite antiquated term, so I would just like some guidance, I guess, from the Minister as to why the chief executive still has to carry that name.

And I understand the current head of customs is again referred to—I believe it’s an acting chief executive at the moment. It may be because it’s aligned with practice with other customs services around the world, I’m not too sure, but it seems to me that if we are modernising, if the purpose is to modernise the New Zealand Customs Service, then surely that might be one of the changes—yeah, those old titles that we can do away with and move into the 21st century and be proud to have the New Zealand Customs Service led by the chief executive. For instance, right throughout the legislation, all of the powers are conferred on the chief executive, and, I guess, why not go for consistency of language? Why not apply that consistency to the current head of customs? We can leave those old terms to history. Leave them to history, and let’s step out boldly in the 21st century by making sure that we do have clarity—clarity.

That’s why I do want to go back to the point: are there any powers of a comptroller that are separate to the chief executive? I think that’s a very important point, because if there are then it does lead to uncertainty. It seems like it might be some sort of officer, quasi-military title. I’m not too sure. I’m not an expert in that area, but “comptroller” seems like it is quite a hierarchical term. We have a deputy comptroller, we have officers, and it seems like it’s a specialised term for a customs-type officer—the head officer. And so I’m interested in whether there is some sort of dual role that is played out by having that title in addition to being the chief executive. I think it’s important because it goes to the delegations that flow from that title, and so I would seek Minister Whaitiri’s clarification on that point.

As I’ve said, I think it’s important that we do modernise the New Zealand Customs Service. It is a very high performing Government department. It does a lot of great work and we are definitely updating the powers that it does have through this piece of legislation, but I think it’s very important that we make sure that comptroller and chief executive are not confused, and if there is confusion, I think we should remedy that confusion by just going with the current, modern-day term of chief executive. Thank you.

💬 Hon Andrew Little: Mr Chair.

💬 Hon Peeni Henare: Mr Chair.

I call the Hon Andrew Little.

💬 Hon Peeni Henare: Aw!

Thank you, Mr Chair, and I know my colleague Peeni Henare has a considerable contribution to make on this bill. I just thought it might be better if I make my more modest contribution and clear the way for him to take the time of Parliament to extemporise on the very important issues that I know he wishes to bring to the attention of this committee.

As I said last time I spoke on this bill, which doesn’t seem that long ago but, actually, was at least a week ago, the power of the customs department is extensive, second only to the police. They are extensive powers of intrusion and coercion that our customs officers have. And, of course, because it’s an important border control department and mechanism that we have, it’s very important that those powers are clearly laid out and clearly spelled out, and there is no doubt or equivocation about them, about to whom they should apply or about what they are. It is interesting, throughout Part 3, and particularly in subpart 8, the extensive powers that are contained therein. They are some of the more intrusive powers that we would confer on any Government agent, but in particular customs officers.

So we see the obligation that the customs officers have. Having seized goods and established that they are contraband, they are then forfeited to the State. We see that customs, nevertheless, before that forfeiture, are required to provide a notice to people with an interest in the goods, so that there is some sort of due process and natural justice followed. It’s very important for the exercise of these extensive powers that that is there. So I acknowledge the Minister in charge of the bill, the Minister of Customs. I congratulate her on a bill that actually clearly lays that out—clearly lays out those powers—because if there is going to be a challenge to anything that our customs officials do, it will be in those more intrusive powers that they exercise: the right to stop at the border and the right to detain goods at the border and, where there is suspicion about the legality of their nature, then to seize those goods, with notice to those with an interest in it following.

For goods that have been improperly imported and for which no proper duty or excise has been paid, they can be seized, forfeited to the Crown, and then the Crown, in fact, has the right to sell those goods—again, actually, quite an intrusive power into the private rights of the citizen, corporate or otherwise, who would otherwise be bringing those goods across the border for their merchanting and good health. And so it is important, as I said, when we are considering a piece of legislation that has powers that are that intrusive, that we take good time to consider them carefully, to understand them, and to explicate them, if not to the public at large then at least to ourselves, because that’s what our job here is to do.

I think the Minister is correct in showing some courage, frankly, in ensuring that these powers appear in this bill, that these powers continue to be exercised, because, in the end, for a small, isolated nation State like ours, surrounded by blue water, what we do at the border is absolutely integral to our ability to protect ourselves from undue incursions—not necessarily of the biosecurity nature; that’s the Ministry for Primary Industries’ job, and we know that that department had an enormous struggle to do their job effectively, because of poor resourcing under the last Government. Customs at least, exercising its powers under this bill, will have a huge opportunity to continue to afford to this nation the protection that we expect of it: the protection of goods that would enter our market—goods that can have an effect on people. It is important that when we are taking goods across the border, we have proper regulation and management of the passage of those goods. So I just say to the Minister: it is good to see that those powers have continued and have been replicated in this piece of legislation, as an outstanding act of courage from this outstanding Minister.

Tēnā koe, Mr Chair, and thank you for this opportunity. Can I make this introductory comment to the honourable Minister Whaitiri: it’s no coincidence that the customs department have certainly cracked down on a heck of a lot of the goings on on the border since the Minister in the chair has taken over, and I congratulate her and, of course, this bill. There are some questions I have about this bill, and the other side, while they might laugh and say that we’re filibustering, are going to actually pay a heck of a lot of attention to this particular bill and the clause I’m about to speak to, because they now have a Māori leader.

💬 Matt Doocey: Ha, ha!

What I want to talk about particularly is actually clause 205. The member Matt Doocey won’t know what that clause is, but let me explain that to him.

💬 Hon Amy Adams: Matt Doocey’s forgotten more than you know, buddy.

Clause 205 is the “Use of dogs and other aids”, and while that might seem trivial to the former Minister of Justice, let me explain. Subclause 2 says here: “However, neither a Customs officer nor any other person may use a dog or aid of the kind referred in subsection (1) in a private dwelling or marae”. Remember that, please, on the other side. With a Māori leader, you’ll be visiting a marae, no doubt soon. In this particular clause, it refers to a marae, and I want to take the line of questioning of my colleague here, Mr Rino Tirikatene. The reason is: define for me “a marae”. Today I was in Tauranga and, in fact, visited the great people of Pirirākau.

💬 Kiritapu Allan: Whoo!

Pirirākau—Kiritapu Allan, they spoke very highly of the work that you’re doing in the rohe, and it was a pleasure to visit the people there. Now, to your common New Zealander, your normal person, your “Joe Average” on the street, a marae would be a carved meeting house. I think that’s a relatively fair assumption to be made. But let me tell this committee: a marae can actually be a heck of a lot of things. Not all marae are carved. A marae is a home. A marae is a common place of gathering. In my particular electorate in Tāmaki Makaurau, a marae is a church, and I refer to Te Unga Waka Marae, the Catholic marae in Tāmaki-makau-rau, down on Manukau Road in the heart of Newmarket. Funnily enough, there is a marae there, for those of you who don’t know. From the outside, it looks like a concrete building, but, in fact, it is a marae.

I want, in the scope of the contribution made by Mr Tirikatene, to talk about the definition of language there. I think it’s an important thing, and I’m going to go further into the use of sniffer dogs and other resources at the disposal of customs to conduct searches on a marae—on a marae.

I want to continue on the definition of a marae. For most parts of Aotearoa, in particular the rural parts, a marae was simply a home—simply a home; a home of gathering for common purpose, a gathering for community, a gathering to discuss many of the issues affecting that particular community. So if I can just put that question to the Minister around what a marae and its definition exactly is, in particular with respect to clause 205.

In there, too, it says “in a private dwelling or marae except—(a) with the consent of an occupier or owner of that dwelling or marae; or (b) under a warrant.” Now, many of us—in particular the Māori members of this House—are affiliated to their marae. Some of us have served as trustees. We know that on our marae, there is not one individual owner—not one individual owner. So if there is a group of trustees—take myself, for example. In Tāmaki-makau-rau, I’m a good three-hour drive from my marae—three-hour drive from my marae. How are we, as trustees, able to sit down and consider giving consent—giving consent to customs to conduct searches and investigations on our marae? The trustees of my marae live scattered right across the country, and I wonder just about the practicalities of getting proper consent.

I’ll reiterate that point: there is not one owner of a marae—not one owner. On some marae, there are pretenders. On some marae, they might argue that they’re the owner of the marae, but I put to this committee and to the Minister that there is not one owner of a marae. That’s going to cause some problems—not just for pragmatic reasons, of course, as I mentioned, around customs trying to define who an owner is or how they might be able to contact them and how they might gain consent. I’ll leave that in front of the Minister. The only other way is, of course, under a warrant, and that speaks to the language referred to by the member Mr Rino Tirikatene about “controller”. The mere term used here, a “warrant”, implies something perhaps more controller-like in so far as a heavy-handed approach to gain access to a marae—to gain access to a marae.

Some of the other things—and, like I said, this might seem trivial to the other side, but I know for a fact that on my marae, dogs aren’t allowed—dogs aren’t allowed. In fact, on most marae around the country, dogs aren’t allowed—dogs aren’t allowed.

💬 Hon Amy Adams: Which bill are you on?

Clause 205, if the member cared to listen and follow the debate and actually contribute something. That side of the Chamber has been what we call in Māoridom “wahangū”—silent. In fact, some might argue they’d be dead, they’re that silent. Anyway, to the important point—because this is important to Māori, and, in fact, with their new leader, it’s quite clear that that member lost the leadership vote. The new Māori leader of the National Party, with his whakapapa, will take this seriously. To the point, sir—

CHAIRPERSON (Adrian Rurawhe): Come back to the bill.

On many marae, dogs are not allowed, and I wonder if this is another heavy-handed control by the Crown or by the customs department to actually force on to a marae the use of a dog. I also wonder to myself: why would customs be searching a marae? I go to marae right across the country, and I think to myself: why a marae specifically? Are we suggesting that illegal goods are being trafficked—being brought into New Zealand and being stored at marae, being traded out of a marae? I’m not too sure what this implies, and I’ve got some concerns and, obviously, some questions for the Minister in this respect.

What clause 205 also speaks to is the use of not only dogs but electronic X-ray machines. Are we suggesting that we’re going to be setting up security checkpoints on marae? One of those marae is, of course, Te Manukanuka o Hoturoa, which is the closest marae to the airport. Are we suggesting that, perhaps, we set up some kind of a customs checkpoint on that marae? I’ll leave those questions for the Minister.

So just to recap: (1) definition of marae; (2) actual dogs on marae; (3) the practicalities of defining ownership of a marae and whether or not you can get ownership consent to go on to a marae, or is it merely a case of a heavy-handed Government department—in this case, customs—going on to a marae exerting their control using the definition and the language of my colleague Mr Rino Tirikatene. What are we implying by simply stating only “marae” in here? Sure, it says “private dwelling”—that’s relatively straightforward to me—but it also specifically states “marae”. Why “marae”? I want to leave those questions on the table for the Minister to consider and for the committee to consider. Kāti ki a tātau, tēnā koutou katoa.

I have to back up that magnificent speech there from my colleague Peeni Henare, particularly with his challenge to the other side, who are very silent tonight because they’re still in deep depression after the Māori takeover of the National Party. I know it bothers them—I know it bothers them—and we can barely get a word out of them now, but we know that Simon will come to the aid of Peeni Henare after tonight—

CHAIRPERSON (Adrian Rurawhe): Simon Bridges.

Simon Bridges—that’s his name. I knew that. Nō Ngāti Maniapoto, too—Ngāti Maniapoto are very proud. They’ve said that they’re backing him now, going into the future. Originally they disowned him, but they’ll take a bet both ways.

I just want to compliment the Minister on her fantastic work. Finally, we’re going to get some action in this area. In particular, I want to comment on clause 207, where we’re looking at customs—this clause restricts customs’ power to search data in electronic devices, in comparison to the current Act. It’s a very important clause, this, particularly if we’re looking to increase customs officers’ powers in terms of their powers of search. It goes to the line in terms of: are we breaching civil liberties? What sort of power do customs officers have? Will they just search National Party members as they come through the terminal, perhaps looking through their phones? They have this opportunity to access telephones, go through profiles, and so it goes to an area where many in the House have argued that customs officers and people at the airport—they should not have that opportunity, that they should not have that option. It does this by setting out thresholds and other safeguards that are designed to protect privacy.

Tonight I would ask the Minister: have we got the balance right? Have we got the balance right in terms of this clause and in terms of how far we go? Are we mindful of our people’s rights, Kiwis’ rights, New Zealanders’ rights, with regards to their privacy, with regards to what they’re doing in terms of their telephones? What is private and what is not? So the question is always: have we got the balance right? Are we giving too much power to some of the individuals? Will they bring their own political views to the line? There’s always an opportunity there, and we have to question that.

So, in particular, it’s a two-threshold test, they say, that would apply to the search of data in an electronic device by a customs officer. A test of reasonable cause to suspect relevant offending would be used for an initial search of a device—so very important there. To carry out a full search—that is, forensic search—of a device, a customs officer must have reasonable cause to believe that the device contained evidential material relating to relevant offending. So, again, we ask of the Minister in the chair, Meka Whaitiri: have we got the balance right? Are our civil liberties being breached as New Zealanders? In this Chamber, it’s only right we ask those questions of ourselves. We want to be security conscious—we want to be security conscious—but how far do we go in terms of exercising powers for our customs officers? How far do we want to reach, how much do want to accord our customs officers, how many rights do they have, and when do our rights start and finish?

So I think New Zealanders out there would want to hear some assurances from our Minister in terms of the powers that are being exercised, in terms of the balance, in terms of bias, in terms of prejudice—where are we going with this? We’re a Labour Government who are concerned with the rights of all citizens—of all New Zealand citizens—unlike the National Party, who would just make a declaration. No, we’ll go through a process—a proper process—where we’ll look at the rights and the powers and the balance for all New Zealanders, and I think we’re on the right track. Kia ora.

Thank you very much, Mr Chair. I am delighted to be speaking on this Customs and Excise Bill. I’m particularly pleased because back in 2014, when I first became the Minister of Customs, we started work on this bill, and it’s taken all this time to get here. I’m not surprised that it’s taken all this time, because it is an extremely large and extremely complex bill, and the New Zealand Customs Service has done an enormous amount of work, working with stakeholders, working with the public, and really coming up with practical, sensible ways to reform the legislation.

It is easy to forget that New Zealand customs is 178 years old. This bill that we are debating today updates the 1996 Act, but also it amends Acts that have been previous. Some parts of it are 50 years old, and some of it is even 100 years old. But the really interesting thing about this job is that although the new bill modernises and it streamlines process, it doesn’t change the principles, the values, and the duties of the New Zealand Customs Department, and it doesn’t change the powers and obligations. It does simplify, update, and modernise, and it tries to provide flexibility for future changes in technology and business practices and to also find tools to combat illegal activity, and that’s the key issue.

Willie Jackson, the speaker before me, was talking about balance. This is a balance about how we protect New Zealand and New Zealanders while preserving the privacy of travellers and businesses. So the whole key to this is to make the border processes as simple, easy, and cost-effective as possible for legal goods and passengers, while making it as difficult, as complex, and as expensive as possible for illegal operators, and the trick, of course—and this is the hard thing for customs—is to identify the difference between the two of them.

As I’ve said, New Zealand customs worked very closely with stakeholders and businesses. Really, this is about making the whole process of managing our borders more efficient and more effective because we know that that’s important in terms of economic growth and in terms of trade.

But one of the issues that we’ve been discussing tonight, which I’d just like to traverse, is the issue of e-devices. The vast majority of this bill is uncontroversial, but we did have a significant discussion about e-devices. Now the interesting thing about e-devices is that these are the things that we carry as passengers—or they could actually be in cargo—across the border. Customs powers in the past were that they could look at any bit of documentation and anything that you had in the baggage coming across the border, so, theoretically, they have the right, as of right, to look at an e-device. But this is why we had to look at this Act, because what people keep on their e-device is much more than what they might have carried in their suitcase. They could have carried documentation in their suitcase or they could have carried information in their suitcase, and in the past, the Customs Department would have rifled through that documentation, but an e-device has personal things as well as the information that might be relevant to customs.

So although under the past Act—the 1996 Act—New Zealand customs had the right to look at an e-device, in this bill we have actually put in two thresholds, and these thresholds are to protect the privacy of people for their own information that might be on their e-device. So the first threshold is that a customs officer must have “reasonable cause to suspect”—reasonable cause to suspect—that the passenger who’s carrying the e-device has committed a relevant offence. It can’t be any old offence. It has to be a relevant offence to what customs is looking for, so it will be export, import, child pornography—some of the relevant offences that customs is responsible for. So the first level to make an initial look at an e-device is they must have a reasonable cause to suspect offending. If, when they go through that first look at the e-device, they find information that leads them to have “reasonable cause to believe”—reasonable cause to believe—that the passenger is actually offending, then they can do a full search.

So what’s actually happened in this stage—[Bell rung] Mr Chair, just to finish this—just to make it clear. So what’s actually happened in this clause of the bill, and it’s clause 207 of the bill, is that customs has actually given up some of its powers—powers that it’s had for 178 years—and, to look at new technology, has put in a threshold to protect the legal traveller through our borders.

So I think this a good compromise. Customs has had to take a step back and put that threshold in, but I think it’s a good compromise, and I support the option.

Thank you, Mr Chair. It is a great pleasure to rise on behalf of New Zealand First to talk on theme two, the powers and obligations, of this, the Customs and Excise Bill 2016. It is a piece of legislation that actually goes back to 1913, I believe. It was amended again in 1966, and, of course, for the last time in 1996, and that is a long time ago. Things have moved on a lot. I mean, back in 1996, Sean Fitzpatrick was captain of the All Blacks, Lee Germon was captain of the Black Caps—a great Cantabrian. I don’t know if Simeon Brown was born then, but probably around about that time. But it will be of great comfort to the nation that Winston Peters was Deputy Prime Minister and leader of New Zealand First then, as he is now, so those people watching at home, I’m sure, sleep in their beds safe at night, under that safety blanket of the great Rt Hon Winston Peters.

CHAIRPERSON (Adrian Rurawhe): And now to the theme.

Yes, so the 2016 bill—and I will, now I’ve got my list placing secured for the next election—I will commend the Minister in the chair, Meka Whaitiri. This is a serious bill, and these are serious clauses. I will commend the Minister. Customs is a very important part of our economy. I see it as one of the three pillars, along with biosecurity and food safety, that underpin the economic growth and financial well-being of this country.

This bill establishes some specific thresholds for the search of electronic devices, and I will pick up on that in a moment, but it does not change those core functions. Rino Tirikatene informed us in one of his previous contributions to this debate that it goes back to before the Treaty of Waitangi, which shows you that this is a longstanding, important part of our economy.

This bill also clarifies travellers’ obligations. It protects privileged information as well. New Zealand First was pleased that within this process the Privacy Commissioner was heavily involved in the formulation of this bill. That gives us a lot of confidence. We’ve heard tonight already all the speakers talking about the balance. If we’re giving people powers of search over and above what they would normally have had, then that is something we have to take very seriously as legislators—so to have that comfort blanket of the Privacy Commissioner endorsing these provisions.

Of course it is a very different time now. We have 3.7 million international tourists coming through our borders every year. We also have, I think, a couple of million New Zealanders travelling overseas every year. We’ve got record exports for the December quarter, under this Government. So for customs, it is very important that these provisions are up for review and are fit for purpose in the 21st century. The bill streamlines the processes for imposing controls on imported and exported goods.

I’d also like to touch, a bit later, on the controlled deliveries provisions in this bill, which are long overdue. Clause 207 covers secure devices—the power to seize devices, and the provisions around that, and the legal thresholds; these two threshold tests and the need for reasonable suspicion. An example of that, I understand, would be someone that may be coming in on a visitor visa whom customs may suspect is here to work illegally, under the table. This would give customs officers, under this threshold, the opportunity to look into this device, localised—they can’t go on the cloud and look at Facebook or social media; it can only be localised to what is contained on that device. Of course, beyond that, it also has that higher threshold where more serious criminal offending is suspected. The provisions within clause 207 obligate the travellers to supply passwords.

Thank you very much, Mr Chair. I’m going to talk about clauses 22, 28, and 29. But before I do, quite integral to my contribution is the word “craft”, and I’m going to just go through the definition of the word “craft”, as per the bill. It “includes any aircraft, ship, or other machine or vessel, used or capable of being used for the transportation of goods or persons by air or … water.” So I’m going to talk about yachts, coming into New Zealand—a lot of yachts. The reason I’m going to talk about this is this is something very dear to my heart and also to the Minister’s heart. It is the way that drugs are getting in and out of our country these days.

One of the methods is the stuff is being dropped in the Islands. The meth is dropped in the Islands, picked up by yachts, and brought across to New Zealand. It’s very hard to detect. But some of these clauses—I have questions for the Minister, and she might know some of the answers to these. So if I look at clause 22, it’s titled “Craft that have arrived at place other than Customs place”. So, as we know, all around New Zealand, dotted around New Zealand are a whole lot of areas that haven’t got a customs office. These are places with jetties that yachts can arrive at, at any time. It states, “(2) The same powers may be exercised, and the same obligations apply, under this Act … (a) … as if [a craft] arrived at a Customs place;” My first question—this is clause 22(2)—why is that wording “The same powers may be exercised,”? I would have thought that the same powers “must” be exercised, and the same obligations apply, under this Act—as if the craft arrived at a Customs place. So I’m wondering under what circumstances would they not apply? Hence the word “may” versus “must”.

I’m going now to clause 22(3), and there’s a bit of confusion here. It talks about, “The person in charge of the craft—” i.e., the skipper, in this example, “(a) must … report to a Customs officer or to a constable;”—so this recognises that when there’s not a customs office there could well be a police station, which is often the case now in places around—but “… (b) must not, without the consent of a Customs officer, allow (i) any goods to be unloaded from the craft;”. I’m not too sure how this might work. So they land at a place without a customs office. They find a police station. They go to the constable. But what it actually says here is they can’t actually do anything without the direction of a customs officer. At what point do the roles and responsibilities of a constable transfer to a customs officer?

That takes me to clause 28—they link in—and this is, “Persons arriving in New Zealand to report to Customs officer or Police station”. So again it goes to that theme where they’ve landed in New Zealand, there’s no Customs office, and they go to a police station. What it says here is that except as otherwise provided in the Act, they must immediately report to a customs officer or a police station. Then it says—so we’re in clause 28(b)—“remain at the place where he or she reported to the Customs officer, or at the Police station, for any reasonable time that Customs requires to enable a Customs officer to carry out any function under this Act”. I suppose my question is: what constitutes reasonable time?

So if they’re landing in Ruatōria or somewhere where there is no customs office, they report to a police station, as per the Act, how long do they actually have to wait there before they can say, “Well, this is a reasonable amount of time. I can reasonably be expected to go back to my yacht because a customs officer has not arrived.”? Is it a day; is it is two days? I would have thought a reasonable amount of time would be three or four hours or as long as it takes a customs officer to drive from the nearest office to that police station. That may be impractical if all the officers are engaged in other activities, but I’m just curious to know if the officials or the Minister have an idea around what constitutes reasonable time.

Again, clause 29 here, “Disembarkation”, as well: it talks about, “(3) Every person who has disembarked must, unless otherwise directed by Customs,—(a) proceed to a Customs-controlled area;” and they must remain there for what constitutes a reasonable time.

Maybe I’m reading this wrong, but there seems to be a little bit of inconsistency there. So when they arrive in New Zealand they can go to a police station. But when they embark they must talk to a customs officer or follow the directions of a customs officer. This is a genuine question: can a police officer, a sworn officer, take over the responsibilities of a customs officer when there is no customs officer able to discharge their duties under the Act? Because, as we know, New Zealand has a lot of coastline. The Minister and I have great concerns about the use of yachts bringing in contraband.

Thank you, Madam Chairperson Tolley. I’m pleased to make another contribution on the theme around powers and obligations. I want to talk to a clause that is quite dear to my heart at the moment, and that is clause 96. This clause confers on the Minister a power, by Order in Council, to prohibit the import and export of pounamu. This is a matter that was of great concern to Te Rūnanga o Ngāi Tahu, who are, by virtue of their settlement, the outright owners of all pounamu in Aotearoa, and we know that it’s all in the South Island, in Te Wai Pounamu. So there is an existing prohibition on the export of pounamu, but what I want to speak to is, if we look at this clause, the Minister must recommend a prohibition by Order in Council, and that prohibition must be in the public interest. So there’s a public interest test that applies in the granting of the export prohibition or import prohibition, as well. What Te Rūnanga o Ngāi Tahu were wanting to advocate for in their submission was, would their established iwi interest that they have be a relevant interest, and that it should take precedence over and above the public interest test in the case of pounamu.

What transpired, I guess, after consideration was that the select committee in its report said that the relevant iwi interest is also taken care of in the public interest test. So what I would want to ask the Minister is, if she could—I guess I can see positives for Māori in general by the application of saying that an iwi interest is also in the public interest.

If I look at other situations where customs have put export prohibitions in place, one issue that is also dear to my heart is the prohibition on the SILNA lands in the South Island. For those that don’t know, the SILNA lands are the South Island Landless Native Act lands, and those lands were granted to landless natives of the South Island due to unfulfilled promises that took place, which is very historical but very relevant because those lands were in places like the bottom of Stewart Island—far, remote places, far away from where Māori actually lived, where Māori weren’t able to draw any compensation or any economic benefit from those lands because they were literally waste lands right at the bottom far-right far corner of the South Island.

So I’m aware that customs has imposed export controls on the harvest of logs from the SILNA lands, and by looking at what’s happened in the case with pounamu here, surely a relevant iwi interest could be argued and that the use of the sustainably logged harvest from those lands, which are compensation lands to the people of the South Island, surely that could also be in the public interest. And why wouldn’t it be in the public interest? I’m just wanting to use an example of where customs has actually imposed export prohibitions that have been to the detriment of Māori in trying to utilise or gain benefit from those lands. So it hasn’t worked all the time, but I see a glimmer of hope that possibly—and hopefully the Minister could clarify—that an iwi interest is also in the public interest.

In another case in point, I look at another iwi at the top of the South Island, Ngāti Kuia—and they also call themselves Te Iwi Pakohe, which is the argillite, which is a stone—[Time expired]

Thank you, Madam Chair Tolley, and can I please start by thanking all members of the committee for their great contribution and scrutiny of a bill that is very, very important. Can I also make amends in that I mistakenly acknowledged the wrong Minister who did begin this bill. So can I please correct the records and say the Hon Nicky Wagner started this bill and then it went to the Hon Tim Macindoe.

There’s a suite of questions that have been asked particularly on theme two that I’m going to address in my contribution. The first one dates back to questions raised when this bill was debated on 14 February. There was a question asked by the member Virginia Andersen in relation to the retention of personal information, clause 51. Her question pertained to how long information that was gathered—i.e., biometrics, faces, irises—would stay on the record. So in response to that question raised by Virginia Andersen, clause 51 requires passenger name record data to be deleted or have its identifying particulars removed after three years, unless it is required for investigation, prosecution, or for border security. We also acknowledge that the Privacy Act 1993 applies, under which information must be deleted when the purpose for which it was obtained no longer applies, and it’s customs’ policy, to ensure compliance with the Privacy Act, that all biometric information collected from passengers at e-gates—the automatic passenger processing system—is deleted after three months, so hopefully that addresses that question.

Then we moved on to Dr Duncan Webb, whose question related to condemnation of goods, new clause 166A proposed through Supplementary Order Paper 12. Dr Webb raised the issue around the ability of customs to seize goods and whether there ought to be some very careful discretion not to exercise it in all circumstances. For Dr Webb, the power to seize goods is discretionary. Customs officers have clear procedures to follow to guide them in using this power. The chief executive of customs also has the power to restore seized goods if she or he considers it equitable in the circumstances. A person can make their case as part of a formal review process at no cost. As a result, conditions can be set as part of restoring these seized goods to the person.

The Act at the moment does not address what happens if a person accepts the conditions but then fails to fulfil them. Instead, the Act implies that if this happens the goods will be condemned—that is, become owned by the Crown. Clause 166A has been inserted to make it explicit how this works. An example—and this might be of interest to the member who just contributed formerly, Rino Tirikatene—of when this clause would engage is in relation to the exportation of pounamu, which is prohibited except with the consent of a Minister of Customs on the advice of Te Rūnanga o Ngāi Tahu or the Mawhera Incorporation. Customs could restore seized pounamu conditional on the exporter obtaining the consent for the export from the Minister of Customs. This would need to be done within the time frame set out by the chief executive when the pounamu is restored.

The third question that was asked by Dr Duncan Webb was in relation to powers in the contiguous zone, clause 169, where Dr Webb pointed to the ability to seize illicit imports or exports in the contiguous zone—

💬 Kieran McAnulty: I raise a point of order, Madam Chairperson. I am so sorry to interrupt the Minister, but I do believe it is inappropriate for a member to use a mobile phone in the House.

CHAIRPERSON (Hon Anne Tolley): It is, and the whips do have their phones, so I’d ask the member to put the mobile phone away. But I do suggest to the member that he might want to wait until his Minister has finished speaking in future. It’s career-enhancing.

Thank you, Madam Chair. So returning back to the question asked by Dr Duncan Webb in relation to powers in the contiguous zone, clause 169, he asked for an explanation as to how this clause is both consistent with good governance and with our international obligations. Both international convention and the current Customs and Excise Act 1996 provide that powers may be exercised in the contiguous zone by customs. This is necessary to prevent or enforce breaches of customs law that occur in our territorial waters. Powers are rarely exercised in this zone. The bill does not give customs additional powers here, but modernises the references to ensure clarity as to what powers are available. The power of seizure would not likely be exercised when customs is pursuing a craft from the territorial sea into the contiguous zone where goods are already forfeited.

Now I return to the contribution by members tonight. I want to start with the member for Te Tai Tonga, Rino Tirikatene, who asked why we’re using the word “comptroller” and whether we are being bold enough to modernise that to “the chief executive”, or asked questions why we don’t just call the head of customs the chief executive. “The comptroller” is the title given to the Chief Executive of the Customs Service, the title is historic, and has been in use since at least the early 20th century, if not earlier. The title of “comptroller” is generally used in relation to senior public sector or corporate officers who have financial oversight responsibilities. Its use by customs is historic and reflects the revenue collection responsibilities of the chief executive. It is part of the organisation’s tradition and identity. The term of “comptroller” is also used by customs’ administrations globally.

Also in response to the honourable member’s question, there are no extra powers in having the term “comptroller”. Clause 248 states, “The chief executive of the New Zealand Customs Service continues to be known as the Comptroller of Customs.” This clause is part of the debate for theme four, mechanics and miscellaneous. The comptroller has the same responsibility, functions, and obligations as any other chief executive under the State Sector Act 1988.

Then I want to move on to the Hon Peeni Henare, who made a contribution around clause 205 and marae. In response, can I just say to that member that by naming marae in clause 205, we are giving marae the same protection as private dwellings, but greater than other public or communal spaces. The definition of “marae” is in clause 5—page 30, if the member wants to refer to it—“the area of land on which all buildings, such as … wharenui … wharekai … ablution blocks, and any other associated buildings, are situated”.

In terms of dogs on marae, customs would be sensitive to concerns about dogs coming on to the marae. Customs would consider using an alternative aid to dogs.

But I think the big question the member, thankfully, asked is the identification of marae owners. Noting that we all come from marae—many of us in this House—there is no single owner. Like you rightly said, we have multiple owners—some that live around the marae, some that live far from the marae, and some owners that live overseas—and you asked what would customs do. I am assured, on asking officials to the Minister, that before we move into getting a warrant, to get to a warrant application, the person issuing the warrant—for example, a judge—must be satisfied that he or she reasonably believes that at the place there is evidence of the commission of an offence or evidence of the unlawful importation or exportation of goods—for example, drugs—or anything that is intended to be used to commit such an offence. So there is a threshold there, I say to Minister Peeni Henare, before we issue a warrant to go into our marae.

Lastly, I believe that there were three contributions in relation to clause 207, and that is around—losing all these papers—clause 207 in terms of the question that Minister Willie Jackson asked around whether we have got the balance right around electronic devices. Can I reassure him and also Mark Patterson and, I think, the Hon Nicky Wagner that there is a two-threshold test that is in train. One is around ensuring that the two-step train—I knew I would do this: I would lose my notes amongst this sea of notes. But I want to assure the Minister that there is a two-threshold test before we actually enter. One is an initial search, on the belief that there is an offence, and then a more forensic test on ensuring that there is actually an offence that requires a search.

So, hopefully—and it’s also important to note to that member that the Privacy Commissioner also submitted at select committee that they were pleased to see that the provisions outlined in clause 207 reflect that advice that they gave to officials during the policy development process. Kia ora.

Revenue and Trade