COVID-19 Response (Management Measures) Legislation Bill

Oh, thank you very much. Look, I wasn’t intending to take a very long call on clause 1, which is the title—[Bell rung] Well, that didn’t take long! Goodness me!

💬 Hon Kris Faafoi: Fair call.

That hasn’t happened to me since year 9 debating! But in the spirit of what is, I think, soon going to come, I think that a more appropriate title for this bill would be the “COVID-19 Response (Retrospective Property Law Amendment) Legislation Bill 2021”, because what we have before us is a bill that seeks to retrospectively interfere in the sanctity of contract, and contracts signed in good faith by landlords and tenants, and seeks to reverse what the legal position was at that time, for reasons that have never been explicitly or convincingly articulated by the Government. In fact, about the best that the Minister has managed to do so far is that there’s been anecdotal feedback that this would be a good idea. That’s it—anecdata, basically. Kris Faafoi, who I’ve got a lot of time for—he’s a great guy. He’s not a bad medium-fast bowler in the parliamentary cricket team. He’s a good guy. Everyone likes “Faafs”; he’s a great guy. But, I’m sorry, running into some people in the Koru lounge and having a glass of orange juice over the socially distanced Air New Zealand buffet is not a good enough reason to retrospectively interfere in the sanctity of contract. It’s not. It’s just simply not.

And, as others have pointed out in the legal community and in the property world, in the commercial world, this puts everyone at risk, actually, because once you get down to the situation where the Government will go along and interfere in commercially negotiated contracts and just retrospectively change the law and override those contracts—it’s bad enough just overriding contracts; the legislature should be very wary about doing that on any level, at any time, but to do it retrospectively, to pretend that the law wasn’t what it said it was at the time, undermines certainty of the rule of law and undermines the sanctity of contract. And, to do that, you need a very good reason before you do it, and we have never had articulated, as I said before, from the Government a good reason as to why that is the case. And everyone has lined up in opposition to this—everyone. The Property Council, the Auckland District Law Society—nobody thinks it will work; everyone thinks it’s a bad idea. And we are yet to see from the Government a convincing rationale.

So I think a good title change would be the “COVID-19 Response (Retrospective Property Law Amendment) Legislation Bill 2021”. That is my opening contribution to what, I’m sure, will be a long and exhausting debating. Thank you, Madam Chair.

I rise to support my colleague Chris Bishop’s contribution, and his proposed change to the title. I think it should be called “COVID-19 Response (Retrospective Property Law) Legislation Bill”, because for reasons that Mr Bishop has outlined, that is the most significant part of this bill. Most of it is administrative, but what is far more significant is the idea that a contract that was signed under one set of laws will now be interpreted under a different set of law. You know, that’s never been the case. You are always judged for your actions on what the law was when the action occurred. The idea that you can have the goalposts moved and be judged under a different set of law, that’s quite extraordinary.

But I actually think that New Zealand, if we go down this path, is not going to get all of the benefits that come from this kind of legislation. I want to ask the Minister, you know, can he guarantee that once we start changing the law, retrospectively changing people’s contracts, I want him to guarantee that we’re going to be able to grow bananas in New Zealand, because actually, what would be better is if he can guarantee that, what we should do is call it the “COVID-19 Response Retrospective Property Law Banana Republic Bill”.

Now, that’s the truth. Because look, I mean, it’s bad having a country where the State’s got no restraints and goes all over the show and changes the law in a whole lot of different ways. You know, that’s a pretty bad way to live. It’s hard for people to invest with any certainty. It’s hard for people to raise any capital. But at least most places that have that sort of legal framework, they can grow plentiful bananas. That is one of life’s little compensations for poor legislation. So that is my opening contribution.

Some people will say, “You’re being a bit flippant.”, but let me just ask this question: how should people respond when you’ve got a Government that introduces legislation that shakes the pillars of law and property rights and the rule of law in this country, and does it based on the fact that they got advised over the Koru lounge? Then when they come out to say, “Oh, who was consulted?”, they say “The Auckland District Law Society (ALDS) were behind us on this.” I asked the Auckland District Law Society, and guess what! The ALDS know nothing about it, they say. That didn’t sound like consultation.

So unfortunately, we’ve actually got to a stage where the Government’s probably going to pass this. Sometimes the only way to deal with a Government that is so ridiculous is actually to ridicule it. You know, we should ridicule this Government. What they’re doing is damaging. They’re clearly too blind to see the damage that they’re doing. They’re not going to be, I suspect, persuaded by rational argument, so they are worthy of ridicule. This committee should say to this Government, “If you want to pass banana republic laws, then we’re going to change the title of your law to the ‘COVID-19 Retrospective Property Law Banana Republic Conversion Legislation Bill’”. That would be the logical thing to call it, and New Zealanders should be should be laughing, because if you didn’t laugh, you’d cry.

I just ask the question: how else are we going to make this Government see sense other than ridicule? That’s what they deserve. That is the start of this debate, and people like myself and my colleague here, Mark Cameron, he’s a farmer. Farmers are very interested in property rights. They make their living off the land, you know?

💬 Mark Cameron: Oh, not when it gets taken off us.

Well, yeah. Their net living is made off the land, he says. You know, we actually look forward to getting into the serious details of this bill, but let’s just open by signalling that it’s actually a law at this time that deserves ridicule.

New Zealand has a very fine tradition of getting rid of bad policy by ridicule. What got rid of Muldoon in the end was actually that everybody laughed at him. He laughed for a long time [Laughs like Muldoon] and in the end everybody made fun of Muldoon. That is the New Zealand way to deal with ridiculous propositions from ridiculous Governments—it is to ridicule them, and that’s why this committee should tell the Government, “If you want to make such ridiculous laws, we are going to ridicule it, and we’re going to call your law a banana republic law.” With a bit of luck, if nothing else, even if it undermines the sanctity of contract, the rule of law, and property rights in Aotearoa New Zealand, at least we might get some bananas.

Thank you, Madam Chair. First of all, my first question is: I didn’t think they served bananas in the Koru lounge. So I know this bill had its genesis in the Koru lounge, when Mr Faafoi was on one of his frequent trips around the country and came across some people who actually had some property interest and thought it might be quite a good idea to change it. But I certainly agree with Mr Bishop that it is a retrospective bill. So I personally—if I was in the Koru lounge, I wouldn’t like bananas; I’d like something like cherry tomatoes or even God’s given little green apples or something like that.

But in terms of this bill, it is certainly retrospective, and I think that after a COVID crisis hit this country back in March last year, this is where we’re getting to today. We’re debating this bill. We’re debating one of the principal elements that should have been addressed all those 18 months ago with the issue with property rights. The Government tried in the last term of Government and failed. Now, 18 months later, we’ve got this situation where we’re now applying a retrospective clause, and, actually, in a number of the issues in the schedules that we’re going to be discussing, there is an issue around how that retrospectiveness applies. So I think—

CHAIRPERSON (Hon Jacqui Dean): Order! Could the member address clause 1, which is the title clause.

Yes. So I do agree with Mr Bishop. I think it should be the “COVID-19 Retrospective Bill” on a whole lot of fronts, because we’ve got a bill that deals with what 20 or 15 different Acts. I think the issue is that we should have done this a long, long time ago. We’re late to the job, and largely because we’ve got a Government that hasn’t got on with the job much sooner than it should have.

I can’t resist taking a call on clause 1, as well. I have a slightly different perspective on it, though, and you’ll understand that when I’ve finished speaking. But my perspective on this is, really, when you think about life and you think about what is going on in the course of the legislation we are about to pass, my proposal is that we call it the “Rip Off the Old People Bill”, because, actually, when you think about what COVID has done to my generation—

💬 David Seymour: The member’s got a conflict of interest!

—ha, ha! So have you!—it’s precluded us from going to our own funerals, it’s precluded us from all sorts of stuff. But the most—

💬 David Seymour: You can go to your own funeral—you can go to your own funeral.

Yeah, but you don’t know you’re there! Ha, ha! You might not know that you’re gonna have one either! But the challenge for me is that what has happened to a lot of people—or our seniors, particularly, with respect to superannuation—is they’ve gone around the world for various reasons, a lot of them very good reasons, quite unsuspectingly, and have been trapped overseas and they get to the point where they want to come home, they can’t come home, the Government then cancels their superannuation, and they end up kind of adrift around the world.

The other thing, just with respect to the proposed name change I have, is I think that COVID has changed the world; this bill changes a lot of things that we’ve come to understand in this country and come to live with, and my generation are, frankly, the lucky generation. I don’t know what is going to happen for the next generation, because a lot of things have changed in recent times. But all the same, despite all that, I still think that it is worth a try and I think it is well worth looking at the title of this bill, and thinking that we should just change it to at least reflect some of the—not damages done, because who’s to know whether it is damage in the long term or not, but to reflect the position we’ve got to. Thank you, Madam Chair.

Well, thank you very much, Madam Chair. Alice in Wonderland is sort of where we are now with this as it goes down the rabbit hole, and I just want to reiterate the iterations from both Mr Seymour and Chris Bishop about retrospectivity. So here we go. I think we could quite happily call the title of this bill “COVID-19 Response (Management Measures) Legislation Bill/The Rabbit Hole”. So there you are. It speaks of retrospectivity, and, unfortunately, this is the new norm for a Government out of touch.

I move, That the question be now put.

Point of order. Madam Chair, Speakers’ rulings are very clear: that a debate on a title clause cannot be used as a way in which to criticise the content of the bill. I’d ask for you to explain to the committee how the previous speeches have been ruled in order.

CHAIRPERSON (Hon Jacqui Dean): Thank you for that point of order. The Chair is the sole judge of relevance. I am listening very carefully to the speeches, and the member may have noticed that I have reminded speakers to speak to that section of the bill, which, as you so rightly point out, is the title clause.

Thank you, Madam Chair. I rise to speak on the title of the COVID-19 Response (Management Measures) Legislation Bill, and I support my colleague Mr Bishop’s call for it to be renamed the “COVID-19 Response (Retrospective Legislation) Bill”. The reason for that is that this does contain some key elements that create a retrospective change to some of our key contractual provisions.

The reason why we have a First World economy in this country is because we have the certainty of the rule of law. We have the certainty of contract and people who rely upon that are making the investment decisions, and from those investment decisions we have an effective economy. Without that, people will not invest. We will not have the certainty that people require to build a functional and effective economy, and I would speak to the other alternative name for this bill, which Mr Seymour alluded to, and we could call it the “Banana Republic Law Bill”.

The question is that Chris Bishop’s tabled amendment to clause 1 be agreed to.