Canterbury Earthquakes Insurance Tribunal Bill

That brings us to Part 3, which is debate on clauses 53 to 67 and parts of Schedule 2 and Schedule 3.

Madam Chair, thank you. I would like to speak to clauses 59 and 60, and then track back a little into clause 55. Clause 59 in Part 3 relates to the chairperson’s responsibilities in the tribunal. It’s interesting because in reading clauses 58 and 59 and moving on to clause 60, it really makes clause 55 a little more comprehensible, even though I’m not sure that we would agree with the decisions therein. So clause 58: “The chairperson must assign 1 member”—and it could be the chairperson themselves—“to act—(1) as the tribunal for each claim:”, and that happens “as the tribunal [is] to perform the functions required to be performed under section 64(4)” of the Act, and it will be that relating to access to tribunal records. That’s pretty straightforward, but it does give a clue to why there is clause 55, which precedes it—but I’ll go over that—which is around the appointments of the members of the tribunal.

I had started to speak to Stuart Smith’s Supplementary Order Paper 229, which has been ruled out, so I probably won’t refer to that too much except to say that under the bill as amended, in clause 55(1AA)(2), “The Minister must recommend for appointment—(a) only people who, in the Minister’s opinion, are suitable to be appointed as members, taking into account their knowledge, skills, and experience;”, and of course then we can agree with this next part, that “(b) at least 1 person who has the experience required to be the chairperson under subsection (4).” So the question is why should only one of the appointees to the tribunal have a practising certificate, as laid out in clause 55(1AA)(4): “The chairperson must have held a New Zealand practising certificate as a barrister or as a barrister and solicitor for at least 7 years.” The question still remains, I believe, why isn’t every member of the tribunal, which has significant powers, required to have a practising certificate of seven years as a barrister and or as a barrister and solicitor?

💬 Dr Duncan Webb: Because there’s other experts.

The member across the Chamber does say “Because there are other experts.” Yes, there are, but there just does seem to be a little looseness, and also, really, I think it discounts or discards the fact that barristers and solicitors also can have other areas of expertise that they can bring to bear into this tribunal work.

Then, perhaps a less contentious clause is clause 60, “Delegation by chairperson”, who may delegate any functions. Of course, the function in this instance is this function to delegate to a member whom the chairperson is satisfied has the necessary capability, skills, and experience to perform that function, which puts an awful lot of responsibility and weight on the chairperson. So it brings me back, again, to my colleague’s Supplementary Order Paper 229, which would require each of the members of the tribunal to have a legal qualification, because while a number of people—yes—can have expertise, it’s that legal expertise which I would have thought would be a critical part for members who serve on the Canterbury Earthquakes Insurance Tribunal.

I am just trying to sort out Supplementary Order Paper (SOP) 229 in the name of Stuart Smith that I said in Part 2 had been negatived, but it actually refers to clause 55 in Part 3, and I can’t—I’m just seeking some advice on how it’s been negatived. So the member might like to take a call because he is, at this stage, entitled to speak to his SOP until it’s ruled out of Part 3.

Thank you, Madam Chair. It’s been an interesting night so far, I have to say. Yes, well, Supplementary Order Paper (SOP) 229 in my name—

💬 Matt Doocey: Great SOP.

It is a great SOP. The SOP guarantees only suitably qualified professionals with legal or arbitration experience can be appointed as members of the tribunal. My colleague Jacqui Dean has just spoken and referred to that, and I think that she made some very good points. I don’t want to take up too much time on it, but I’ve got a few points here, including, in fact, a quote from the first reading speech from the Minister responsible for the Earthquake Commission, the Hon Megan Woods, which cuts completely across what’s in this bill.

You know, it really is quite amazing, and there’s a theme running through here, as I’m sure my colleague Jacqui Dean behind me will have noted—and I’m sure the officials have as well—which is that all of these things are linked. None of them are political. They are all about making this bill fit for purpose and actually fitting with our legal principles in New Zealand, and it’s playing fast and loose with those principles, as this bill is. It doesn’t achieve anything other than getting sloppy laws in New Zealand. We in New Zealand are at some risk, I believe, of losing our faith in the insurance industry, and this is going a long way to making that worse. I think it’s far more serious than the officials and the Government realise.

We’re in a reasonably tenuous position here. It’s not just about the risk that insurance companies weigh up when they’re going to risk their capital or not; it is the legislative framework that they have to operate under, and that’s very important. That’s where this SOP—

💬 Brett Hudson: Mr Hipkins is sympathetic to your position.

—speaks to that, and, yes, I can see Mr Hipkins is quite uncomfortable there as the Minister in the chair, but never mind. So the bill is actually silent on what constitutes a suitable knowledge and what skills and experience are required. As we’ve talked to on the other parts in this bill, these claims that are unresolved are all technical. They are all complex. They are all difficult, or they would have been settled by now. So this whole tribunal will fail miserably if it doesn’t have the suitably qualified people to run the tribunal. You’ll end up—well, not you, Madam Chair. But what we will end up with is creating one injustice to try and fix another. I think that the justice department in New Zealand should be about justice—that’s what it should be about—not about injustice, and this is getting pretty damned close to it, if you’ll excuse my French, Madam Chair.

I did promise a quote—and I’ll come to that in a minute—but the bill doesn’t require anyone to have a law degree to sit on this tribunal. As I’ve already said, these are complex issues and they will come down to technicalities in the contract in the end, and how can someone off the street without suitable qualifications be in a position to adjudicate on that? That’s a question that perhaps the honourable member in the chair might like to enlighten us on. It would be quite a difficult one to answer, I suspect.

But I did promise a quote from the Hon Megan Woods, the Minister responsible for the Earthquake Commission, who said in her first reading speech on this very bill that “we have publicly said that we see people of the calibre of retired High Court judges, senior members of the legal profession, being the right people to sit” on the tribunal. So why would that not be in the bill?

💬 Hon Jacqui Dean: “Uh, oh!”

That’s a big “Uh, oh!” It really is an own goal as far as that goes, and I think the Government members just seem to have lost the importance of justice in this bill.

This is access to natural justice, a one-way justice system, and there is the potential to have unqualified people sitting in judgment on these highly technical, highly complex issues. They’ll likely end up creating an injustice in order to try and fix another injustice. That is one wrong building up on another, and we will end up with a disaster further down the track.

I apologise to the member. His Supplementary Order Paper 229 is in order for Part 3, so therefore my ruling in Part 2 that it was negatived was an error.

💬 Stuart Smith: Apology accepted, Madam Chair.

CHAIRPERSON (Hon Anne Tolley): OK.

Amendments set out on Supplementary Order Paper 225 in the name of the Hon Andrew Little to Part 3 agreed to.

The question was put that the amendment set out on Supplementary Order Paper 229 in the name of Stuart Smith to clause 55 be agreed to.