COVID-19 Response (Management Measures) Legislation Bill

I present a legislative statement on the COVID-19 Response (Management Measures) Legislation Bill.

💬 SPEAKER: That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the COVID-19 Response (Management Measures) Legislation Bill be now read a second time.

This bill is part of the Government’s continuing response to COVID-19. It amends 16 different Acts of Parliament, I think in part recognising the complexity of the situation that we continue to deal with. It also amends one set of regulations. These are common-sense, practical solutions to problems that have been created by the Delta outbreak of COVID-19 and our response to it. We often find—and we did find this last year and we found this again this year—that compliance with existing statutes can be incredibly challenging. There are often deadlines that can’t be met. People find it difficult to work in a digital environment with some of the constraints that the legislation currently places upon them. So this particular bill, the second of these types of bills—I think it’s at least the second of these types of bills—that we’ve brought before the House deals with a raft of issues, with some relatively pragmatic changes.

As the Minister in charge of the bill, I am in a bit of an unusual position, in that the policy advanced in this bill doesn’t relate to my ministerial portfolios. So I do want to thank all of the Ministers and officials who have contributed to this bill. It is, effectively, a compendium of different legislative changes. Unlike previous legislation, when we dealt with similar bills previously, we have referred this bill to a select committee for a very short period of time. So I want to thank the Finance and Expenditure Committee, who did an excellent job of scrutinising the bill. I’m advised they received more than 200 submissions and had heard from 41 different submitters on aspects of the bill. The Regulations Review Committee has also added its analysis of aspects of the bill as well. Many of the amendments in the bill recommended by the committee will now form part of the bill being considered by the committee of the whole House next week.

The Property Law Act changes attracted the most attention from submitters. These are the changes being made around commercial leases. The Property Law Act amendments have two main purposes: firstly, to support commercial tenants and landlords to come to agreements to adjust the rent due under the leases so that the parties share the financial burden of the COVID-19 response, which will help to enable more businesses to remain solvent during the response; and secondly, it provides a way for disputes to be resolved if no agreement can be reached. Many submitters on the property law amendments discussed the behaviour of landlords towards tenants during the epidemic so far to date and highlighted their own experiences, so it was good to hear from landlords and tenants through that process. It is a difficult situation. I want to acknowledge it’s a difficult situation for everyone—the landlords and the tenants—and there are clearly some parties that haven’t been able to reach agreement, so those dispute provisions will be very important.

Other issues raised included whether the bill should provide criteria around the types of businesses or leases to which it should apply, whether we should be limiting eligibility to only small and medium sized businesses, whether there should be a linkage with the eligibility of the wage subsidy scheme or income and capital levels. The period for which the rent reduction should apply was debated, and so on. A key theme that was raised by the submitters was what constitutes a fair portion of rent. I’m sure when we come to the committee stage of the debate, there will be some discussion about that. The Ministry of Justice is preparing guidance on its website that will go up shortly. That will give businesses more clarity.

There was also quite a bit of debate about the Residential Tenancies Act amendments. These are the ones that enable tenants to stay in their rental homes during any future COVID-19 alert level periods where people can’t move houses, and that will help us to stop the spread of the virus in that way. The amendments also make it clear what notice periods apply after the termination restrictions lift.

So these are similar to the temporary restrictions that were put in place last year. They very much continue that work. Submitters overwhelmingly supported the nature and intent of those changes, and there is a forthcoming Supplementary Order Paper that will include some of the changes that were suggested by submitters. For example, it will propose that the Minister must give seven days’ notice prior to switching off a COVID19 tenancies order. So the Government is working its way through that, and we will have a Supplementary Order Paper before the House before the bill completes its remaining stages next week. Tenants will be given two days’ notice to cancel or terminate tenancy agreements where they’re prevented by a COVID-19 public health order from taking possession, to avoid tenants being liable for both rent at their current property, where they need to remain, and the new property which they can’t yet move into.

Very briefly—I’ll try and keep this fairly brief—the bill amends the Land Transport Act to include electronic service and infringement notices, infringement reminder notices, and regulatory notices. I hope these particular provisions will be relatively uncontroversial. There will be some further clarification on the point at which an electronic communication is deemed to be delivered, and so there will be some further clarity there. The committee has noted its concerns about the proposal applying to criminal matters having the potential to create some confusion. So to be very clear: if someone’s charged with a criminal offence, such as driving while unlicensed or while suspended, the bill does not amend those criminal procedure provisions.

There was some debate around the Electoral Act provisions. I want to provide some reassurance to the House that the Cabinet has picked up on those concerns. We’ve had further discussions around the Electoral Act provisions, and we will come back to the House again on that next week during the committee stages. Final decisions have not been taken, but we have taken on board the concerns that were raised there.

In terms of the environment-related legislation, some submitters have been concerned that the proposals extend statutory deadlines by which the Minister of Climate Change must set the three emissions budgets in the first emissions reduction plan. They have expressed concern that that could have an impact on New Zealand’s overall action on climate change. I want to be clear about this: it’s not expected to delay significantly the action to address climate change over the time frame of the first three emissions budgets. It will also not preclude the Government from taking updated or additional commitments under the Paris Agreement in advance of COP26. Similarly, despite the concerns of some submitters, the extension of the repeal date for the COVID-19 Recovery (Fast-track Consenting) Act 2020 for an additional year is unlikely to have a negative impact on the environment, and there isn’t any evidence to date that suggests that it has. Members will have the opportunity to consider further these and other provisions of the bill at the committee stage next week. So I commend the bill to the House.

The question is that the motion be agreed to.

Thank you very much, Madam Speaker. Now, the National Party supported this bill, the COVID-19 Response (Management Measures) Legislation Bill, at first reading in good faith on the basis that we are a bipartisan—for the most part—constructive Opposition when it comes to COVID matters. We wanted to send it to committee to kick it around and then see where we got to at the end of the committee process. Unfortunately, we are going to oppose the legislation at second reading, and beyond, for two major reasons. The first is in relation to the amendments to the Property Law Act that I want to spend a bit of time dealing with, and the second is in relation to the matters the Minister has just referred to, which is the Local Electoral Act amendments. It is good to see that the Minister will be bringing a Supplementary Order Paper, I think he signalled, at the committee of the whole House stage in relation to that—that’s an example of the Government listening; we encourage that. So we’ll wait and see the details of that. But at the moment, we are very disappointed in the attitude of the Government to its amendments to the local electoral legislation through this omnibus bill.

I want to make a point at the start in relation to process. It was poor form for the Government to only provide around a day’s notice to the Opposition before this bill was introduced. Many of the amendments in this omnibus bill are non-controversial; many of them are very sensible. So the Gambling Act amendments in relation to lotteries, class 3 operators, are very sensible. Some of the amendments around the Land Transport Act are, again, very sensible. We can have a debate around the climate change amendments. But most of the amendments put forward through this omnibus bill are reasonably non-controversial. But a couple are quite controversial, and good process means that they should be sorted out through good consultation, particularly when it comes to an omnibus bill like this which deals with a whole range of pieces of legislation.

As a related point, the process at the select committee was very, very shortened—very straitened circumstances. I accept that the Finance and Expenditure Committee did what they could in the time that they had, but the point is that they didn’t have enough time. So the bill’s only just come back to the House. It was referred to the committee in the last sitting period of the Parliament—so, not enough time for the committee to get into the nitty-gritty of this legislation.

So just with that process point, I come to the substance of the legislation. I want to deal, firstly, with the property law amendments. Members on this side—National members, in particular—spent quite a bit of time in the first reading expressing some misgivings about these sections. It is quite outrageous, actually, what the Government is seeking to do. We voted for the bill at the first reading in good faith to see what the submitters would say and to kick it around a bit at the committee. But the fact that the Government has not made any substantial changes to this provision is quite appalling.

The starting point is that retrospectivity is a bad thing, and what this bill does is retrospectively interfere in contracts that have been signed by people in the private sector. That is wrong as a matter of principle. It requires a very good justification from the Government before they retrospectively legislate. The reason retrospective lawmaking is bad is because people are entitled to know what the law is at the time that they sign contracts and make decisions on the basis of what the law is at that moment. Obviously, Parliament altering what that law was at that particular time undermines the certainty or undermines the very idea of the rule of law, because if you can’t know what the law is at a particular moment, because Parliament might come along in a few years’ time and change what the law actually is, how can you have certainty in what you are signing? So of course retrospective law is a bad thing. It is terrible, obviously, in relation to the criminal law. Everyone accepts that you shouldn’t retrospectively change criminality; it’s not quite as bad, but it’s still very bad in relation to commercial contracts, which is exactly what this bill does.

So this bill undermines the rule of law, undermines the sanctity of contract law. Now, to do that the Government has got to have a very good reason before they do that. What is the Government’s reason? It’s not actually clear what it is, because Kris Faafoi’s own rationale for the bill is that he has anecdotally heard from some tenants in commercial landlord relationships that the existing law and existing rental-relief arrangements are a problem. That’s it: just anecdotal evidence. This is how Government makes policy that is an affront to the rule of law now. The Government makes policy on the basis of anecdata—anecdotes that someone talked to Kris Faafoi about in the Koru lounge. That’s how the Government makes policy that is an affront to the principles against retrospectivity and an affront to the rule of law. It’s anecdotal evidence, that is it. It’s just outrageous.

Unsurprisingly, everyone involved in the commercial property sector lined up to oppose this bill at the select committee. All the property firms, the Real Estate Institute, Infrastructure New Zealand, Bayleys, Business New Zealand, New Zealand Law Society, the Auckland District Law Society (ADLS), they all lined up to oppose it and said, “This is a dumb idea.”, and that the bill doesn’t make any sense, it won’t improve things, and you need to throw it out. And what’s the Government decided to do? Not listen to people actually involved in the commercial world, people who actually are involved in the signing of contracts on a daily basis and enforcing those contracts. No, no, the Government knows best, and instead we are going to proceed with this.

Minister Kris Faafoi had an embarrassing little moment when the Auckland District Law Society had to, basically, put out a press release, which is quite an amazing thing for them to do, to criticise the Minister of Justice. The Auckland District Law Society had to put out a press release criticising the Minister and correcting him on his claim that the Government had consulted with the ADLS. Nothing was true in relation to that. In fact, the first that the Auckland District Law Society heard about the legislation was when the Minister put out a press release about it on 28 September. So there was no consultation with people involved in the sector, no consultation with people actually affected by this provision; the Government has just decided to go ahead with it on the basis of anecdote. It undermines the sanctity of contract, there has been no consultation as to how it will actually work, and the bill as drafted is way too wide. Companies who don’t even suffer economic loss will be entitled to seek rent relief.

The real issue when it comes to this issue is cash flow. As numerous submitters said to the committee, the issue is cash flow. If the Government was serious about solving cash-flow problems for businesses that have disputes with landlords, they should pick up Andrew Bayly’s suggestion proposed by the Opposition, which actually goes—

💬 Anna Lorck: No way.

—to the problem. Members opposite go: “Oh ya, ya, no way.” Well, actually, Mr Bayly’s proposal enjoys the support of people involved in the sector, because he’s actually gone and talked to them about what would work and has got wide-ranging support from people, and that’s why it enjoys their support. The Government’s proposal, the Government’s solution, enjoys no such support. No one supports it. So the Government should listen to Mr Bayly’s proposal.

Finally, in relation to the local electoral changes—the Government’s signalled some changes here, so I won’t dwell on it too much—it is just appalling that the Government is giving itself the power to delay local elections. Now, we accept that there should, of course, be power in emergency circumstances, but what this bill will allow the Government to do is to do that over and over again in six-week increments all the way through 2023. It has never been justified to the Parliament or the committee why the Government needs such a wide-ranging power. That has never been justified. We accept that in extreme circumstances clearly you need the power to delay an election. But the wide-ranging power that the Government seeks for itself has never been justified. And it, of course, has set people’s minds racing out there, in the wider community, about what plans the Government does have to delay local elections and why they might do that—three waters, potentially, for example. Now, I’m not alleging that that’s what the Government’s ulterior motive is, but I’m saying that the Government, of course, is going to leave itself open to accusations and allegations like that at the same time as they are engaged in a massive bun fight with the local government sector, and people are clearly going to be worked up about—

💬 Hon Scott Simpson: Joining the dots.

—the Government giving itself the power—they’re joining the dots, as the Hon Scott Simpson says, and I think that is precisely the point.

So we will oppose this legislation. It’s got some decent things in it but we’ll oppose it on the grounds that the amendments to the Property Law Act are an affront to the rule of law, and the Local Electoral Act amendments are not justified. Thank you.

Thank you, Madam Speaker. It’s a privilege to be able to talk on this bill, particularly because I was a member of the Finance and Expenditure Committee that scrutinised the bill and listened to the numerous submissions that had come through over that two-week period. And, as Chris Bishop, the previous member who has just sat down, says: it’s anecdotal—well, clearly he was not in the submission hearing period, where you had business after business after business say, “It’s not anecdotal. Our business is being affected because our landlord is not willing to give us a fair proportion of rent reduction.” That is not Koru lounge discussion; those are actual businesses on the ground in New Zealand who are coming to the select committee saying, “We support this.”

What that member also fails to recognise is the bill has a gate; the gate is that, if you have this clause, you don’t need this implied clause. There was no reference to that by the previous member in his conversation, and that’s why, when the committee reviewed those particular rent relief provisions, we thought about the retrospectivity aspect of it, and there were a number of submitters who said to us—including Retail New Zealand, including hospitality, the association—“It needs to be retrospective back to when lockdown was actually announced.” So that’s why the Labour and the Green members in our report back for this committee report have asked the Minister to give it serious consideration. This is not Koru lounge discussions. These are actual businesses, small business—businesses like Acquisitions across the country, businesses like Butlers Chocolate across the country—who are asking us as parliamentarians to give them some relief.

So that member also said we’ve given them no relief, we should try and give them some other sort of relief—$4.4 billion of relief has gone through the wage subsidy and the COVID resurgence payment. That’s all I’m going to say on this particular aspect of the bill, because I think it speaks for itself. Had that member been a member of the committee and sat through the hours and sat through with those submitters, he’d understand that there is pain on the ground by those businesses. They’ve asked us for help; they’re looking for retrospectivity. So I look forward to the Minister coming back to the House with a Supplementary Order Paper on that point.

Thank you, Madam Speaker. It is a pleasure to be talking on the COVID-19 Response (Management Measures) Legislation Bill. So the first thing I’d like to say is there are elements in this bill that we do support, and it is a wide-ranging bill. It affects many, many Acts. But particular measures around allowing lotteries to run at alert level 3—there’s three entities that have been provided for specifically, which are important, and I think in the current environment for them to be able to get funds to continue to operate during this difficult time is very appropriate.

Changes to allow councils to delay rating valuations—obviously with restrictions, particularly in Auckland, now that we’re going into week nine. Thirdly, empowering the coroner to allow remote participation—obviously, pretty logical stuff—and deferring a number of regulatory requirements as a result of changes or the alert levels that are going on at the moment. So that is fine, and most of that didn’t need to go through under urgency. In fact, you’ve struggled to understand why on earth they were passed as part of this bill that needed to be passed—well, debated, and in the Finance and Expenditure Committee over the last 10 days.

The biggest issue that we have and the main reason why we’re opposing this bill is that the two significant things should have been subject to a proper debate. That’s namely around the rent proposal elements, and the second one is around the local body and how elections can be delayed. Those are very significant. The first because of the financial consequences to people, and, secondly, the constitutional issues that relate to the second around the holding of council elections, which are due at 8 October this time next year.

So I want to just turn to the Property Law Act changes, and the previous speaker, Barbara Edmonds, just said, “Well, hey, we have to do something and this is going to be fine and dandy.” Well, as I mentioned in my question to the Minister of Finance at question time, I just remind the speaker that Retail New Zealand, when they did a survey at 30 September—so it’s not that long ago—showed that a third of retailers are not confident that their businesses will survive the next 12 months, and specifically asked for a financial payment to be made in terms of rent support. So they are looking for cash, unlike what the previous speaker spoke of.

We are now in Auckland, and I’ve come down here after having been locked up for nine weeks in Auckland, and I’ve seen what’s going on there. You walk down the main streets of North Shore and over 40 businesses have closed their doors—40 since the start of this lockdown. If you go through the CBD, it’s like a wasteland. That is the scale of what’s going on. Whilst the Minister keeps talking about the level of wage support that’s going to make these companies survive and the level of resurgence, it is clear from the various surveys—and the retail one is the most significant, showing that a third of businesses think that they’re going to fail over the next 12 months—that it is absolutely essential that we are putting in place mechanisms that get cash in the hands of those desperate mums and dads that own businesses, particularly in the area of Auckland. This bill does nothing for it.

What this bill does is socialises the cost of a Government-imposed lockdown and transfers the responsibility for the financial cost of that from the Government, who is the one who has imposed the lockdown, and transferred that cost to landlords. The Government has, in this bill, effectively socialised the cost of the lockdown and transferred it to landlords. That is fundamentally wrong. The solution that should have been put up 18 months ago, not when we are now entering week nine of an Auckland lockdown—what the Government should have done 18 months ago is dealt with this properly and substantially. Of course, the same mechanism was proposed all that period ago, and, of course, was turned down by New Zealand First, and quite rightly so.

Now that we’ve got a Government that has total power on its own merits to be able to do anything, not only have they chosen to reactivate the same proposal that was roundly rejected, but they’ve done it under urgency. I think that is terribly wrong and shows a Government that is using absolute power to achieve its means by doing so in a manner that does not allow for adequate consultation. I applaud all the companies and people who fronted up to the select committee over a matter of three days to present their case in the short period of time that they’ve had to prepare it, and they’ve presented well.

The reality is that this proposal, what it does is it forces that cost to the landlords to provide some rent relief. It is wrong the way that it’s gone about, and we have four principal issues with it. The first one: the bill refers to what is called a fair proportion of rent. So when we asked the advisers to the committee, “What is meant by the term ‘a fair proportion’? Can you elaborate on that? Can you provide some guidance?”, it was unclear that they could. It has been a deliberate decision by the Government to leave it as an unclear definition. That means that it has to be defined, probably in the courts. That also means a time delay. So the first issue is around what is understood by the term “fair proportion”.

The second thing is that this whole approach cuts to the core of the sanctity of contract law, and that is one of the principal concerns we have with this piece of legislation. Because when you start to interfere, when you have a Government starting to interfere between agreements agreed by two parties and impose themselves, and not only just impose themselves but also to reallocate how money is to be paid between those two parties, that is fundamentally wrong, and that is why this is an incredibly shoddy piece of legislation.

The third thing is that the proposals apply to all commercial tenancy arrangements. Many, many submitters made a strong proposition that it should be linked to small to medium businesses. At least put a criteria on it, or, very logically, link it to the wage subsidy scheme—which is, by the way, what I’d link the National Party’s rental package to, to the 40 percent decline in revenue—or to a loss in income or capital.

Those were four very good grounds for setting some criteria, because many people were concerned that what you might have is very large companies taking advantage of this. Many may be not even New Zealand resident-type companies, or owned by New Zealanders, taking advantage of these new unclear laws to benefit themselves financially.

The other issue—the fourth one—is the issue of lack of access. This is a very significant issue. Of course, what we ended up with in the bill is a reference to the Auckland District Law Society—27.5. This is about where a business is unable to fully conduct its business from its premises. We heard from many submitters, including Michael LeRoy-Dyson, who actually has a 27.5 clause in his tenancy arrangement, and he cannot get agreement with his landlord.

This is wrong—this whole approach. The lack of clarity around it is a fundamental flaw. And that is even before I start to talk about the local government elements of this bill. It is wrong. We will oppose it.

I rise to speak on the COVID-19 Response (Management Measures) Legislation Bill, and I’ll pick up on what the other side of the House said in talking about the Local Government Act. An example that I can use is that during the recent lockdown, Hawke’s Bay Regional Council had a by-election that was to be undertaken during this time, and because of that it had to extend its election time to enable people to be able to vote, to be able to legally post their ballot papers, and, of course, to enable the people that were standing for election to be given the opportunity to campaign, which is quite difficult during the level 3 restrictions that were faced in Hawke’s Bay at the time.

So this bill looks to enable the extension of elections beyond a six-week by six-week date. I think it’s important to stand in this House and say that there is absolutely no intention on this side of the House to delay local government elections. It is to enable elections to take place, to enable voters to have their democratic election process, and to ensure candidates are elected fairly. On that, I would like to congratulate our new regional councillor Jacqueline Taylor on her election. Thank you, Mr Speaker.

Tēnā koe, Madam Speaker. Tēnā koutou e te Whare. I’m going to speak to a couple of areas. Obviously, this was a huge piece of legislation that had a shortened select committee period with a good number of submitters and a good portion of the recess dedicated to hearings in the Finance and Expenditure Committee, where my colleague Chlöe Swarbrick was representing the Green Party. The Green Party’s broadly supportive of the bill, but there are some areas where we have a differing view than the Government.

I’ll start with the emissions reduction plan, just noting that there were many submitters who highlighted the urgency with which we must tackle the climate crisis, and that we absolutely note the delay to the emissions reduction plan is not ideal or something that we wanted to see happen. Now that Cabinet has made that decision, it is vitally important that when the final emissions reduction plans are released and in the next Budget, what is proposed is equal to what the science says that we must do to have a habitable climate in the future and for New Zealand to be pulling its weight.

We also oppose the fast track of the Resource Management Act—the fast-track process, which we opposed initially last year in the COVID response. We don’t believe that disregarding local submitters and a proper assessment of environmental effects is necessary for our economic response to COVID-19, and, indeed, we want to make sure that there is a thorough and proper process before we’re investing huge amounts of money and potentially taking up land with infrastructure.

Obviously, the biggest part of the debate was around rent changes and commercial tenancies. I note that at the select committee, the majority of submitters speaking to it did want a rent freeze, if not also rent controls. The Green Party absolutely backs this call. You know, it is true that the Government’s made a change to the number of times a rent can be increased, but that is simply not sufficient to deal with the scale and escalation of rent prices in the past—I mean, going back more than COVID, but certainly since COVID, the rent freeze ended after the last lockdown, and there was a significant increase in rents. What this is driving is a huge increase in the cost of living for some of our most vulnerable people. Unfortunately, the increases to benefits and the increases to the minimum wage are unlikely to have actually benefited those people who are the most vulnerable, because of the rapid escalation of house prices, the increase in rents, and the increase in general cost of living. So we think that there needs to be further action on that from the Government, and that is what submitters were calling for at the select committee.

When it comes to commercial tenancies, it was quite astounding to listen to the speeches from the National Party members—I’m sure the ACT Party speech will be similar. Truly the parties of rent seekers and the landed gentry in this country, they want to make sure that the owners of property don’t contribute anything to our economic response in COVID, that they continue raking in profits just because they happen to own the land and the property, and that the Government should subsidise them directly but they shouldn’t pay their fair share of tax, because these are the parties that have consistently argued against a capital gains tax, against a wealth tax. Arguably, the owners of property have done the best out of the Government’s economic response to COVID19. We’ve seen massive increases in the capital values of property, most of which—the vast majority of which—will be untaxed; that is, untaxed, private windfall gains due to Government policy. We had Andrew Bayly arguing that somehow they were socialising the gains—no, did he say “socialising the gains” or “socialising losses”? It really was truly astounding, as he seemed to be saying God forbid the owners of property should do anything but just continue to profit massively from Government policy, and then Government should, without having any revenue source from these property owners, go ahead and subsidise them during a time when the economy is virtually shut down. I just thought that was amazing.

My view’s obviously the exact opposite. The owners of property could, if they’re reliant on their income, claim the wage subsidy, just like any other business, and there’s no reason why they should continue raking in surplus profits at a time when the economy is shut down. The Greens support the idea of going back to the start of the pandemic when it comes to the commercial tenancies changes, and hospo and retailers obviously support this as well. The only people who are opposed are the landlords, ACT, and National, who would like to continue to see the people who happen to own property profit from our economic system while everyone else pays, basically.

One thing I also found interesting was that Local Government New Zealand totally supported the changes to the Local Government Act around the timing of elections. I think that is a really relevant point. I think it makes it pretty doubtful that, you know, the criticisms or concerns—one could call them scaremongering—from the National Party about some ulterior motive or agenda around those changes—clearly, it is a practical change that’s supported by Local Government New Zealand, which is not at all politically aligned and does represent the interests of local government.

I was disappointed that the Green Party was the only party advocating for overseas voters. I think that’s probably the electoral issue that I would like to see the National Party join us on or the Labour Government act on. Our laws around voting in New Zealand are quite unusual. Most countries allow citizens to vote even if they have lived overseas for some period of time, without there being any requirement to come back and visit the country. Of course, many, many New Zealanders would like to and feel a very deep connection with Aotearoa New Zealand, even though they are living overseas for whatever reason, for whatever period of time. Not all of them have the financial means to travel back to New Zealand every three years. Indeed, in the past 18 months, it has been extremely constrained, the ability of New Zealanders living overseas to come back to New Zealand, and this situation is likely to persist for quite some time. There will be a good two-year period where most New Zealanders living overseas will have been advised by the Government not to come back to New Zealand. That doesn’t mean they should be disenfranchised in their right to vote in local and central government elections. They care about the future of this country. They are citizens, they should have a right to their vote, and I think that is a change that really urgently needs to be considered.

So the Green Party will be moving four amendments at the committee stages to deal with some of these issues I’ve raised, including around rent freeze, the right for overseas voting, and some of the changes to commercial tenancies to make sure that those small businesses that haven’t been able to operate are able to get the rent relief that they deserve. Of course, it’s only fair for the owners of property who’ve massively benefited from Government policy in the last year to contribute their fair share. They are able to access Government support just like any other business. There’s no reason they should be privileged over and above the rest of the economy.

Well, thank you very much, Madam Speaker. I rise on behalf of the ACT Party in opposition to this COVID-19 Response (Management Measures) Legislation Bill. This bill is what they call an omnibus bill: it amends quite a wide range of laws and the people putting these bills forward always claim it does so with a common purpose—to manage COVID-19 in this case.

💬 Hon Simon Bridges: Like totalitarianism.

Simon Bridges says “Like totalitarianism.” and he’s not entirely wrong about that. I was amused, actually—Simon Bridges will like this. One of the new Labour members—I’m sorry, I can’t remember their name right now, but one of the Labour members was talking about the policies being cooked up in the Koru lounge. That member might like to reflect that because of the Government she supports the Koru lounge in Auckland’s been closed for 62 days. You know, they can’t go to the Koru lounge because Auckland Airport is more or less closed and much of Auckland is closed. It’s a very strange thing. We’re counting the days that it’s been closed.

As I was saying, this legislation, it makes quite a number of relatively benign adjustments. For example, it allows a charity running a raffle to do it digitally so people can still raise cash for good causes under COVID restrictions. That’s a pretty good idea and something that could be put through in a bill like this in an uncontroversial way. We could even rush it through and get rid of the usual consultation: have a couple of weeks for select committee, just rush it through, don’t worry about giving the people a say because I don’t think there’s a lot of people in New Zealand who would be worried that a charity could run a raffle digitally under COVID conditions. There’s a bunch of changes like that that are well worth supporting. So we’re not opposed to a lot of it.

But there are two parts of this legislation that most certainly did deserve a much greater debate and consultation than they’ve had, and indeed the ACT Party believes should never have been introduced to this House and should never have been passed. The two parts of this legislation that we are absolutely opposed to on principle are: the Government’s ability to delay local body elections. Well, most local body elections are done by postal voting and you think about this: this is the Government that just two months ago said this Parliament can operate by Zoom. That was the big idea. We were all going to come together by Zoom, and that was going to be enough democracy for the whole of New Zealand. We were going to ask questions, pass laws, raise taxes off people, spend the money—all of that, according to this Government, was going to be done by Zoom. Now they’re telling us that under COVID conditions it is too hard to have a local body election, which, by the way, is all done by postal ballot. Now someone might ask: if you can have a Parliament by Zoom why do you have to delay a local body election by postal ballot? It’s not as though—

💬 Hon Scott Simpson: Three waters.

Scott Simpson says it’s three waters. He’s been going on to some of those funny websites, getting some theories. Well, the real issue is this—

💬 Greg O’Connor: The ACT website.

Greg O’Connor says it’s the ACT Party website. Well, let me just ask Greg O’Connor: how would he know? Has he been on the ACT Party website? Hey, hey—oh! I’ll tell you what. I’ll tell Greg O’Connor we’re going to try and get it down to an 11-year-old reading age and then he can come and visit the ACT Party website. But until that time, he should probably stick to the picture books.

💬 Greg O’Connor: He might let his own MPs speak then.

In any case, there is no logical reason—there he goes yapping away. You wait till after dinner, Madam Speaker; he’ll be much looser.

Here’s the question: why would a Government that believed in a Zoom Parliament want to delay a postal ballot election? There is no reason for this Parliament to delay people’s right to elect their councillors. That’s the first step.

But far more critical than that is this: this legislation changes the results or the meaning of commercial rental contracts that may have been written 10 years ago. This is far more important than any other legislation that this Government will try and pass in this two-week sitting block and perhaps actually this year. The significance of it is that normally when we pass a law in this Parliament, we pass a law but you can’t be done for it if you broke it in the past. For example, if somebody was to catch a fish that was undersized now, if we raise the length of snapper that you’re allowed to catch, you can’t be prosecuted for having caught a fish that was too small 10 years ago by today’s standards. You caught a 25-centimetre snapper. That was legal back in the day. Now the limit is much longer: 29, I think. You can’t get done for catching an undersized snapper, by today’s standards, 10 years ago. The laws don’t apply to things you did in the past.

But what this commercial lease law says is it doesn’t matter. If you made a contract 10 years ago to lease a premise, a commercial premise, well, actually, we’re going to change what that contract means. It doesn’t matter that when you signed the contract, the law said you will be paid according to the contract or you will pay according to the contract. Actually, we’re going to say, “Here’s the new law, and it doesn’t matter what you agreed back then, you have to follow the law today.” That’s what they call retrospective legislation. The problem with retrospective legislation is that people who want to be good citizens, who want to follow the law, who want to plan their futures can’t do those things if they might find the goalposts get moved after they did the thing. That’s the problem—that’s the problem—and this Parliament, as far as I’m aware, certainly not in the time I’ve been here, has never changed the legislation in a way that is retrospective in any significant way. We’ve never changed the law on people after the fact, not like this. If we live in a country where you make a contract, you sign an agreement between two adults voluntarily, and the Government comes along maybe 10 years later and says, “Actually, it doesn’t matter what the law was when you signed it, here’s the new law. You no longer have to pay the rent, or you can no longer expect the rent, we’ve actually just changed at all.”, that is a very dangerous precedent for any country. Labour Governments, National Governments, all sorts of Governments we’ve had in this country over a long period of time have never gone where this Government is going.

What’s interesting, and it’s one of those observations about New Zealand politics, is that only one political party stood up three weeks ago when we first voted on this law and said it is wrong on principle. The National Party stood up and—you know, I mean, the Greens, you can forgive them. The Māori Party, they don’t always remember to vote on legislation. But the Labour Party, I mean, they’re behind it, they wouldn’t have a clue, frankly, about business and law in the real world that actually provides the wealth they tax and give out to their supporters. But the National Party, even they got up and voted for it, and said, “Well, maybe, perhaps in some circumstance we could support retrospective legislation.” I think that’s, frankly, unforgivable. They should have opposed it right from the start. The ACT Party stands for a country where the laws are reliable. You know what they are. And you don’t change the laws so that what people did in the past can be judged by laws they couldn’t anticipate at the time. That is the rule of law. That is property rights. That is the environment that allows wealth creation. This law, more than anything Parliament’s done, violates that, and the ACT Party is proud to stand consistently alone against it.

The member’s time is expired.

Fakaalofa atu, Madam Speaker. I’d just like to pick up on a couple of points relating to retrospectivity and sanctity of contract referred to by the members Chris Bishop and David Seymour, and also the alleged transfer of responsibility from Government to business alleged by Andrew Bayly. There was a lot of discussion actually about retrospectivity. The lawyers of us who sat in the Finance and Expenditure Committee are well aware of the sanctity of contract, but sanctity of contract is not absolute and the courts historically have intervened in cases where there is a need to balance between freedom of contract and social duty. That happened in the 1940s, when good faith and conscionability came into play. It happens in marriage contracts; I don’t think anyone would dispute that. And it happens where there is material unfairness and extraordinary circumstances.

Nobody can dispute that COVID is extraordinary, because what it has done is it has made businesses legally unable to operate. That is extraordinary. It was not envisaged. It would not have been envisaged by many of those signing contracts. If it was, they would have opted to contract out specifically, as some did, with the Auckland District Law Society clause. But for many, many of them, they didn’t, and that is why we need this clause, why we need this amendment to the Property Law Act 2007. The question actually is: how retrospective should it be? Should it go back to the introduction of the bill? Or actually should it go back to the beginning of lockdown? There was some discussion about that as well with many submitters saying that the legislation, the omnibus bill, would be a toothless tiger in this respect if it didn’t go back.

I now refer to what Andrew Bayly spoke about, which was the peak body for retail, Retail New Zealand. It has 27,000 members, 95 percent of whom employ less than 20 staff. He was saying that there was a transfer of responsibility from Government to business. But what he failed to say is that 70 percent of their members have sought rent relief and 50 percent of those are in dispute with their landlords. It’s my contention that if this bill was legislated already, they would have that relief and that cash flow that they need to do business.

If we look at the impact of what will happen when this goes through, it is that the fair players will actually have nothing to worry about. So the legislation only captures those who have not been playing fairly. That is the intention of this bill. It is to create fairness in unprecedented circumstances, in circumstances that weren’t envisaged at the time contracts were entered into. So for that reason, I commend this bill to the House. I think this is a great piece of legislation to be able to provide more fairness and certainty and also more economic stability for our business sector.

I’ve only got a five-minute split call. I’ve got so much to say. I’ve already said at first reading that I don’t like this bill one little bit. Legally, constitutionally, I don’t like it. That may sound a bit dramatic to the punters watching at home. But, I’ll tell you what, this is a bill that delays the ordinary provisions of many a law, that gets in the way of the ordinary everyday rights of New Zealanders, and, on that basis alone, I say it’s wrong. By the way, it does that—oftentimes in 2022 and 2023. This Government’s just come along and they’ve said, “You know, we’re just gonna put off all this stuff. We’re just gonna say, ‘We don’t need to go there, we don’t want to go there on this.’ ” I say that’s constitutionally high-handed and wrong. I want to just focus on three of the worst bits, and David Seymour’s talked about a couple of them. There’s one, though, he missed out and that I, as I know the other member’s in the National Party, take seriously.

The first is the suspension of local democracy in an election year, and that’s wrong. Take my city, the city I’m privileged to represent, of Tauranga. We have already, because of Nanaia Mahuta—“trigger-happy Mahuta”—decided to get rid of our council and put in place nice people, good people, but, ultimately, unelected people: commissioners. Someone was unkindly saying to me just yesterday, “commissars”. I think that’s a bit unkind. They are running our city now, because, I tell you what, the Government certainly isn’t. I don’t know that they’d know where Tauranga was if it slapped them in the face. They are running the city and this bill says we don’t even get local democracy in a regular election year, necessarily. Next year, they’re going to put it off again. Nanaia Mahuta has taken those powers themselves. I have heard a rumour that’s because Angie Warren-Clark is so disillusioned with Parliament and the Labour Party that she’s thinking about standing for mayor next year and they don’t want to see that happen and so they’re putting that off. I’ve also heard the one about Rongotai, of course: “Eddie the Eagle”—I’m sorry, Paul Eagle, his worship, who is thinking about standing, and they don’t want to see that as well. But I would say it is wrong, in all seriousness, to suspend local democracy. Actually, when all you’ve got here is a postal ballot, it’s not as if there are health and safety issues around COVID that require that.

The next thing I want to mention is commercial leases. What we’ve got here—where the Government comes in and rides roughshod over contract law—is the doing away, actually, with centuries and centuries of precedents and certainty, in the name of fairness. Their version of fairness, they say—“Well, actually, we don’t like those fat cat landlords, so we’re going to do something for the retailers.” And look, there’ll be some New Zealanders who say, “Oh well, that sounds fair enough.” I say, number one, actually, it undermines contract law and that in itself, and the freedom of people to come together and sign contracts, makes it wrong. But even if you say, “Well, maybe, Simon Bridges, you’re being a bit unfair about that.”, the reality is that landlords are often mortgage holders as well. They often find it tough to pay their mortgage. And if you take, for example—I can think of many examples in the city of Tauranga—chain store lessees where the landlord, actually, is the one of the two of them that’s hard up. In the name of fairness, doing away with ordinary principles of contract—and, certainly, I say that’s just not right.

But here’s the kicker in this bill from a Government that’s, let’s be frank, not very good at much: it hasn’t delivered in roads, it hasn’t delivered in housing, it hasn’t delivered in really anything I can think of that conventional, decent Governments have done. You would have thought, though, for Jacinda Ardern on their nuclear-free moment, they might actually deliver something, anything, maybe in climate change. What does this bill do? It delays their obligations when it comes to climate. It is literally, according to Jacinda Ardern, the most important issue the world has right now, and they’ve just blithely—is James Shaw too busy? I mean, can they only do one thing—and not that well—at once, and that’s think about COVID and nothing else?

I say, actually, to all those young New Zealanders out there who are worried about this issue, who are concerned about this issue—not just young ones, actually; let’s say that clearly—this Government in this bill is delaying its climate obligations by another year, I think it is. It’s lazy, it’s arrogant, and the reason, ultimately, for it is because this Labour Government doesn’t actually have a plan. So they just put stuff off. They take the lazy, the arrogant approach when they should, if they’d had plans on borders, vaccines, ICU beds, and our economy, have no need for this wrongful bill.

The member’s time has expired.

Fakaalofa lahi atu, Madam Speaker. It’s a pleasure to take a call on this bill and to follow the next mayor of Tauranga City in that sense. I think that’s part of the reason as to why he is so keen to see an alternative view with a local election just around the corner in the city that he so much loves.

I just want to reflect on a couple of contributions from Mr Seymour. I want to thank him for outlining that this is in fact an omnibus bill. My analysis of the bill indicated that, but I want to thank him for his confirmation in that space. Secondly, it’s also no wonder that he was not able to recall the name, as he said, of the new Labour member who suggested that this was a policy decision that was concocted in the Koru Club, because it came from Mr Bishop rather than actually any member on this particular side of the House.

When we look at this bill, essentially it is seeking to extend some statutory time frames and also allow some flexibility in terms of regulations as well. While I’m not a member of the Finance and Expenditure Committee that looked at this, the select committee’s report is a very good one. It clearly articulates the various issues and contributions that were made as part of that process. So I want to thank the select committee for looking at what is a very broad opportunity in terms of some of the issues that were raised.

I want to very briefly touch on the proposals as they relate to the local government sector. I actually agree with the Hon Julie Anne Genter in that the fact that both Local Government New Zealand and Taituarā, previously known as SOLGM—the NZ Society of Local Government Managers—have lent their support to this indicates that there is an independent lens that suggests that this is the right thing to do in a context-dependent environment. So it’s pleasing to see that they have effectively lent their support to this, and on that basis I commend this bill to the House.

Thank you, Madam Speaker. I was fortunate enough with this bill to sit through the vast majority of the submissions, and I’d actually describe it as a little bit of a ramble through the New Zealand legislative system: 16 Acts and one set of regulations. A great learning experience.

But I’d just like to concentrate on the Property Law Act, which seems to have so aggravated and excited speakers on the opposite side of the House. I would just say to the Hon Simon Bridges that far from Tauranga being unknown to the rest of New Zealand, in fact, people like yourself have put it on the map. In fact, finally, it’s good to see that it took an ex - National Party politician to actually try and bring the place together—a well-thought-out appointment, I would have thought.

So the Property Law Act: one advantage of sitting through the submissions is that you get a feel for New Zealanders and how they’re being impacted, and I can’t help but be moved by one particular submitter who had an Airbnb in downtown Auckland and who was looking at losing his house. He was on a personal guarantee. He had sought relief from his landlord. Not only had he not received that relief, he had actually had a rent rise imposed on him. And for any member of this House who had the opportunity to hear from that member of the public, they could hardly help but be moved, and would understand just what the intent of this bill is.

All it will mean is that the landlord must enter into negotiations with that tenant and that there will be available to them some form of arbitration, and that’s really all it does. This is a very humane piece of legislation, because most landlords have behaved very well, but, like with most legislation that we look at in this House, it is designed for those who ignore it—those who need to be legislated just to be humane.

So I have no hesitation in recommending and commending that particular part of the bill and the rest of the legislation to this House. Thank you, Madam Speaker.

This bill is emblematic of the Government’s lack of a plan to deal with Delta in our communities. Because the very reason we are having to have a COVID response bill—that, by the way, had its first reading under urgency: a comment made by many select committee submissions who raised concern at that process—the very reason a bill has had to progress in that way is that the Government in this matter, as with so many matters of our COVID response, has taken a “just in time; sorry, it’s a bit late” approach. And it’s not good enough, Madam Speaker.

I want to, in this contribution, focus on a couple of parts of the bill that National thinks are particularly egregious, and those are the provisions relating to the delaying of local government elections, and intervening into private contracts and making changes to the Property Law Act. I will also return to this issue of process, which we think is significant and which we think could cause problems down the line in terms of the provisions in this legislation.

So first of all, delaying local government elections. This bill allows local government elections to be delayed for up to a year into 2023. Now, members of this House are aware of it because we have studied this piece of legislation, but was this announced by the Government in one of its COVID announcements? No, it wasn’t. This was not something that the Government sought to highlight, and we on this side of the House think that it is pretty poor form that that significant change to electoral law was snuck in in this omnibus measure—and in fact, in a way that will have a binding long-term effect on electoral law. We also think that this delay speaks to the Government’s lack of confidence in its own plan—

💬 Hon Scott Simpson: What plan?

—because why is it that the Government is envisaging having—well, my colleague the Hon Scott Simpson says, “Well, what plan?” And he’s absolutely right because, actually, a Government with a plan would have ensured that we had vaccination rates that meant Aucklanders, today, weren’t heading into day 63 of lockdown, and a Government with a plan wouldn’t be saying, “Well, we may need to delay local government elections for up to a year.” So the Government hasn’t at any stage done a good job of setting out what exactly the concerns and anxieties are that they have that have led them to introduce these rather dramatic provisions.

The second part of this bill that National takes particular issue with are the changes to the Property Law Act, which are in Schedule 6 of this bill. This inserts a clause into commercial leases requiring rent to be paid in certain circumstances. It is a direct intervention into private contracts. Not only that, it is a retrospective intervention that was not telegraphed or signalled by Ministers, and which submitters said may wreak havoc in the relationships between commercial landlords and their tenants.

Now, when the Minister of Finance appeared before the Finance and Expenditure Committee to discuss COVID response some weeks ago when we first headed into lockdown, I asked him, “Was he, or his agencies, considering steps to help out landlords and renters in difficult situations as a result of COVID”—so particularly those people, for example, who can’t access their business premise, but are required to keep paying rent. And what National, of course, has proposed as a solution to that is a rental support package, a direct approach to account for the fact that Government intervention is wreaking havoc for many businesses, for many tenants, for many landlords. When I asked the Minister of Finance, Grant Robertson, about that, he said that they were considering a range of options, and almost laughed off the idea that they would look at intervening into private contracts—and is it any wonder that he did, because this is actually an extreme step.

There was nothing at that hearing that telegraphed this level of intervention. Of course, we know the history of these clauses, which are these are clauses that those who understand commercial dealings, who understand the importance of private contracts, worked hard to oppose last year when the Government mused about introducing them. And yet still, they haven’t learnt. So National opposes those measures, and we advocate for a rental support package that would mean that private contracts could stand, but support was available. It sets a very bad precedent when the Government is happy to introduce, under urgency, under the cover of lockdown, changes that intervene into private contracts. I will, and members on this side of the House will remember this when the members opposite try and say that they stand on the side of business. You cannot be on the side of business if you take retrospective steps of this sort that create uncertainty for all involved.

Finally, as I said, I would, I do want to raise questions about the process applied to this bill, because, actually, I think what New Zealanders have seen—and not the least of which at the vaccination Super Saturday this weekend—is that, where appropriate, National has been prepared to work constructively with the Government on its COVID response. In fact, my colleague Chris Bishop has made a number of constructive suggestions which tend to end up as Government policy—whether it’s rapid antigen testing, whether it’s saliva testing, whether it’s reforming managed isolation and quarantine, these are all things that we have been very constructive about. But in order to keep that spirit, it is vitally important that the Government show that they are prepared to put their proposals to appropriate parliamentary scrutiny, that they telegraph them well in advance, and provide members of the public absolutely fulsome opportunities to submit on what are significant law changes. That has not been provided for with this bill, and those who sat on the select committee have noted that many submitters asked themselves, “Why the urgency?”

And I would put to you, Madam Speaker, what I said at the beginning of this contribution, which is that we have, here, a seat-of-their-pants, just-in-time Government who didn’t plan for Delta to come to New Zealand, who didn’t roll out vaccinations fast, who were complacent, who sat back. Now New Zealanders are paying the price, and this legislation is but one example of it.

Tēnā koe, Madam Speaker. It’s funny, isn’t it? “Why the urgency?”, we hear from the Opposition, and then, in the same breath, “We’re not moving fast enough.” The reason this bill is being dealt with under urgency and was introduced under urgency is because the problem is urgent. Businesses are crying out for help, and we are going to deliver it. I’m going to go to the Property Law Act amendments, because I’m absolutely flummoxed with the view of the other side. They don’t seem to think that these measures are necessary, and they raise the issue of retrospectivity. So let me deal with some of those issues.

Firstly, the Property Law Act, which is being amended, implies numerous clauses into leases across the board, and this is just in addition to an existing framework of implied clauses. Secondly, we have a law of frustration already that looks backwards in time when there are extraordinary circumstances and adjusts the relationships appropriately in the benefits and burdens of the contract. In a sense, this clause is simply doing that. It’s saying the parties cannot have been expected to contemplate that their lease would be affected by a global pandemic. We are going to assist them in resolving that tension in a fair way. Thirdly, the Auckland District Law Society believes the common lease used in commercial premises in New Zealand has pretty much an identical framework, and that is being used as a template for what parties would have negotiated had they turned their mind to it.

In terms of retrospectivity, it is absolutely essential that this relief is given. In a sense, it’s no more retrospective than any addressing of a frustrating event would be. Anything where the parties can’t make the contract which they contemplated it to be at the outset. So this reform of the law is greatly needed.

In terms of what is a fair proportion, we received many useful submissions on that, some of which suggested we set out a list of factors. We took careful advice and reflected on it, and we thought that that wouldn’t be useful. But I do want to make it clear that things like whether someone has received the wage subsidy would be relevant. Whether someone has been able to conduct a profitable business even though they’ve been locked out of their premises would be relevant. All of those things will be relevant, and, obviously, the revenue that a company has, the tenant has, would be relevant as well.

There is one other important thing I want to say. In respect of the claim—I think it was Mr Bayly who was talking about large tenants and landlords with mortgages. Landlords can use this clause too. If a large tenant simply says, “Go away. I’m not paying my rent. I don’t want to.”, this is a clause that the landlord can use to say, “You have to pay a fair proportion of the rent.” So it’s a really useful and important clarification of the law.

In terms of if it’s going to be effective, we absolutely think it’s appropriate to look at how far back we should go, whether we should go to the beginning of lockdown on 18 August or not.

Lastly, I’ll talk about dispute resolution. We absolutely need a speedy dispute resolution process. Arbitration can work, but it can also be expensive and a little unwieldy. This is really a prompt for parties to get together and sort their problems out themselves if they can, to mediate if need be, and arbitrate if necessary.

This Property Law Act reform is not a great shift in the law. What it’s doing is it’s imposing a clause on the parties which, if the parties were asked two years ago “What would you do if there was a global pandemic and you were locked out of your building?”, would be the fair place to land. That is why I commend this bill to the House.

I declare the House in committee for consideration of the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Bill and the Regional Comprehensive Economic Partnership (RCEP) Legislation Bill.