COVID-19 Response (Management Measures) Legislation Bill

We move now to clause 2, the debate on the commencement clause. The question is that clause 2 stand part.

Thank you very much, Madam Chair. Look, I’m a bit troubled by clause 2, and I’m going to ask a Minister to get into the nitty gritty of the detail. Clause 2 has two subclauses. It’s all about the commencement. So clause 2(1) says, This Act comes into force on the day after it receives the Royal assent.” That’s perfectly standard. That’s a very sensible piece of legislation. Then it says, “However, section 3(2) and Schedule 8 come into force on 28 October 2021.”

Now, it’s the 27th today, and I can tell you now that this bill is not going to be passed today. So tomorrow we may get through the committee stage, although frankly the way things are going, we’re going to be here for quite a long time, I have to say. There’s a very chunky piece of legislation still to talk to, but we’ll wait and see—we’ll wait and see. We’ll see how much courage the Government’s got, because they’ve outlined a very long extended hours reading list. I think it was 15 bills Kris Faafoi read out. There’s no way they’re getting through all of them, but we’ll see.

So section 3 and Schedule 8—and Schedule 8 is in relation to Ministry of Business, Innovation and Employment amendments. It’s a requirements for entities, modifications, and exemptions. It makes various class exemptions to—

CHAIRPERSON (Hon Jacqui Dean): Just—order! The member is addressing clause 2.

Yep, that’s right, clause 2, the commencement clause of the bill. So what I’m seeking clarity on is section 3(2) and Schedule 8 come into force on 28 October. Now, it’s unlikely that the bill will be an Act by 28 October. In fact, it’s likely to be potentially after that. So I just seek guidance from the Minister as to what will happen in that circumstance if the bill is passed later than the 28th, i.e., early in November. Does that mean that section 3(2) and Schedule 8 are actually deemed to have come into force retrospectively as well? That’s the question.

Thank you, Madam Chair. Now, I just thought it would be worth clarifying the understandings that were reached in respect of this debate at Business Committee, because Mr Bishop’s contribution really touched on the commencement in respect of Schedule 8, which is the Ministry of Business, Innovation and Employment, and we have in the Chamber Ministers to address questions which other members have indicated would be asked and they were on at Schedule 5, the Ministry of Housing and Urban Development; Schedule 6, the Ministry of Justice; and Schedule 7, the Ministry of Transport. Now, the parts referred to by Mr Bishop are technical amendments which are required to enable bodies corporate and companies to undertake business electronically, including various constitutional matters, so it’s appropriate to have a hard commencement date so that those businesses can do that retrospectively. But I’m not the Minister in charge—

CHAIRPERSON (Adrian Rurawhe): Order! The member started off talking about an issue not necessarily related to clause 2 and criticising the previous speaker, which was ruled in order. So the member should get to his point on clause 2.

💬 Hon Member: Mr Chair.

CHAIRPERSON (Adrian Rurawhe): No, Dr Webb has the—

Thank you, Mr Chair—simply pointing out that the commencement date there is there so that the members who are organising bodies corporate and companies can undertake constitutional matters such as meetings and AGMs by electronic means.

Thank you, Mr Chair. I mean, it’s the most extraordinary contribution, for a Labour member to get up and, basically, give a speech that says “Nothing to see here.” I mean, actually, what he was saying, if people didn’t follow—what Duncan Webb, the Labour member for Christchurch Central, who just sat down, was saying is “You agreed not to ask any questions about this. It’s not fair.” Well, I’m sorry to say that, as a member of Parliament, he’s actually got a duty not to support whatever the Government that he hopes to one day be part of introduces, but to actually stand up and ask questions and scrutinise the laws being put forward on behalf of the New Zealand people. That’s what a representative democracy is, and I think it’s perfectly fair that we have—point of order, Mr Chair.

Mr Chair, members have had to not sit in the Chamber, due to the social distancing requirements, and we’ve got Duncan Webb and Andrew Little sitting so close to each other. Now, is it actually the case that members have to maintain social distancing at all times in the Chamber?

💬 Hon Andrew Little: What a pathetic contribution.

CHAIRPERSON (Adrian Rurawhe): Order! [Interruption] Order! Points of order are heard in silence, and the Chair is on his feet to rule on the matter. It’s a very serious issue. I want to point out that every member should be aware of the rules during a sitting of the House. I also want to point out to members that the whip is the only one that really could justifiably be speaking to other members in that proximity. So I think it’s a clear warning to all members to be mindful of that. We’ve got a fairly full House for this bill, and I expect everyone to follow the rules. Thank you to David Seymour for bringing it up.

Well, thank you, Mr Chair. It’s very important. The person that people may have heard come through their microphones saying “What a pathetic contribution.”—that was the Minister of Health after he was reminded about the public health measures this Parliament has put in place. That was Andrew Little, the Minister of Health—

💬 Hon Andrew Little: Still pathetic—still being pathetic.

And there he goes again. He’s yelling—he’s yelling—because he got caught out breaking the most basic provisions that he expects everyone—

💬 Hon Andrew Little: What a stupid member. He’s got nothing to say—nothing to say.

We’ve got a lot to say, but we have to deal with the fact—we have to deal with the fact—that the Minister of Health is now shouting at me—

CHAIRPERSON (Adrian Rurawhe): Order! The member’s been speaking for 19 seconds and has not yet spoken to the clause. So he should do that now.

That’s fair enough, Mr Chair. One minute in Heaven is better than two minutes in Heaven, as my good friends—

CHAIRPERSON (Adrian Rurawhe): And let’s not—I’m going to knock that on the head now, OK? The member knows that making a comment on a ruling of the Chair is out of order. He knows that—well, he should know it—and therefore I don’t want that to happen again.

No, no, no. Well, OK, I won’t make any further comment, Mr Chair. But I think it is worth just noting that people have made a lot of sacrifices. This Parliament is half empty because people have to keep their distance, and the Minister of Health should know that.

But, on this retrospectivity, what clause 2 says is that the law comes into effect the day it receives the Royal assent, and what that means is that usually the Governor-General signs the law, usually several days after it has its third reading. Now, we still have this committee stage, and it looks like it may be a long night—just confidentially—

💬 Joseph Mooney: Nothing confidential about that.

What was that, Joseph Mooney? Joseph Mooney says the secret’s out! Well, he’s a sophisticated man from the Deep South, and he’s probably got a few clues about what’s going on here. But, in any case, it won’t be passed today through the committee stage, and then it’s not going to be passed through the third reading in time. So here’s the question: if this law actually ends up getting passed after the 28th, then what happens in the time between 28 October, when it says the law comes into effect, and when the law is actually passed by Parliament? And this has some very interesting implications. Does it mean that our Parliament is now a rubber stamp and we just assume that Parliament is going to pass a law anyway, so you should start following the law on the 28th? Or are we a House of Representatives in a representative democracy—Mr Chair? Mr Chair?

CHAIRPERSON (Adrian Rurawhe): Well, you’ve still got 57 seconds.

Well, Mr Chair, your clock is wrong, in that instance. But, in any case, this is very much what I’m talking about, Mr Chair. It ultimately comes back to a question of time. The question is: where exactly are we in the space-time continuum with this legislation? It’s not actually clear. I mean, first of all, you look at what’s happening to the clock; they don’t actually know how long I’ve been speaking at this point. The Clerk has just gone up to the Chair, and they’re fiddling with the clock, because this legislation actually reverses time! I mean, this is a deep, metaphysical issue, Mr Chair. We’ve got real problems if the law is passed after the law says it comes into play. Then at what point do people start following the law? At what point did my speech start? Where does it end? Nobody knows! We’ve actually ripped in half the space-time continuum with this poor lawmaking, and I’ve got a lot more to say about it.

Mr Chair, while I have enjoyed the contributions of the member David Seymour around time travel, I would like to perhaps make sure, for the members who are concerned about clause 2(2), the fact that clause 2(2) that the members are referring to, about the date, which is tomorrow, is actually being deleted from the bill. So the last five minutes have been a complete waste of time, and I wish I could go back in time!

There we have it, in what the Minister, Kris Faafoi, just said. He said, “Actually, we don’t need to worry about that part of the bill because it’s going to be deleted from the bill.” And this, once again—this Minister sees this House, and these elected representatives, as a rubber stamp: “Don’t worry about what the legislation being presented actually says, because it’s going to be removed”—how does he know that? Well, presumably because the Government is now removing—

💬 Hon Kris Faafoi: Read the bill!

Oh, he just answered, “Read the bill.” Well, actually, the bill hasn’t removed it. This is what was reported back from the select committee. And then Duncan Webb, who—get this—is a law professor, a member of the profession committed to upholding the rule of law, says, “There’s an SOP that’s going to remove it.”

Well, let’s just talk a little bit about how it works. Actually, the law—or, at least, the statutes of New Zealand—are passed by a majority of this Parliament; until such a time, they’re just a bill. Now, what Kris Faafoi has just said, and what law professor Duncan Webb is trying to say, is, actually, that we shouldn’t debate what’s in the bill because they already know that Parliament’s not going to pass that part. Well, I think that’s an extraordinary admission about the approach that this Government takes to Parliament.

What they’re saying about this Parliament is that, actually, it doesn’t matter what anybody else voted for—if you didn’t vote for one of them, then it doesn’t matter; your voice doesn’t count. It doesn’t matter what Parliament debates and what it decides, because we’ve already decided what the law is. Now, that’s an interesting model of governance, and there’s certainly countries around the world where that’s a legitimate thing for a Minister to say, because in their particular political system, it’s certainly true that the parliamentarians are just a rubber stamp.

I think about our friends in Hong Kong—pretty tough time being in the Hong Kong legislature. Over there, the bosses and overlords from Beijing say, “This is what the Parliament’s going to pass today.”, and, lo and behold, that is what the Hong Kong legislature does pass these days. But there’s a problem with that: that’s not democracy, and that’s why it’s wrong to have a commencement clause that says, “It doesn’t matter what happens in the debate, it doesn’t matter what happens in the bill; actually, we think it’s going to be OK because we’ve already decided what Parliament’s going to do. Parliament’s a rubber stamp; Parliament’s a formality.”

Well, that’s not how representative democracy works, but who’d be surprised when you’ve got a Minister of Health who thinks it’s unfair to point out that he’s breaching the rules set down for the Speaker for the public health and protection of members of this Parliament. That’s what this clause is about, and that’s why if this Government was committed to democracy, if this Government was committed to a representative Parliament that is the highest lawmaker in this land, then they would take out the part of clause 2 that says, “We’re going to make this law come into effect, maybe before it’s even passed.” They would say, “The law only comes into effect after the Parliament passes it, after the representatives of the people that they work for pass the law. It doesn’t come into effect whenever we say it does because we already know what Parliament’s going to do.”—because Parliament is beneath their respect.

This is really an appeal for the members that are the most important in this—actually, the Labour backbench. They might be thinking, “You know, why are we here?” Well, if they can’t stand up for their rights and their duties as elected members, if they are just here to be part of a 65-strong rubber stamp, they might ask themselves why they came here. You know, there’s lots of jobs out there, a lot of them better paid—maybe not for them. There are a lot of jobs out there with greater privacy and better hours and less getting on flights that they could have had, that would probably be better for their work-life balance and many aspects of their lives than being part of a 65-person rubber stamp.

So I just say: if I was a backbencher in Labour, I’d be thinking, “Why am I here?” And I’d actually be starting—oh, where are they all, actually? Fair enough, maybe that’s the problem. Scott Simpson is just pointing out all the empty seats. Thank you very much.

I move, That the question be now put.

I’m tempted, actually, after that contribution.

Thank you, Mr Chair. I rise to speak on behalf of the National Party in respect of clause 2. I think it is an extraordinary few minutes we’ve had in this Chamber tonight, where we’ve been talking about the commencement and there has been sort of a discussion about when this bill comes into force. There was some discussion from my colleague Chris Bishop and from David Seymour about clause 2(2) and Schedule 8 coming into force on 28 October 2021. So there was some discussion about the space-time continuum, and I notice we still have some issues with the clock.

Point of order, Mr Chair. I just note that the clock doesn’t appear to have begun yet.

CHAIRPERSON (Adrian Rurawhe): OK. You can carry on and I’ll fix it.

Thank you, Mr Chair.

💬 Hon Member: Limitless time.

I’d love to have limitless time—

💬 Hon Member: Start again.

Ha! Should I start again, or?

💬 Hon Member: Just go back in time!

CHAIRPERSON (Adrian Rurawhe): It’s your time you’re wasting.

I’ll go back in time. This is all about a retrospective piece of law, anyway, so, I guess, that’s apt for this evening that we’re going back in time, back and forth, and we don’t really know where in time we sit, which also appears to be what has happened with clause 2, where we had considerable discussion about this clause 2 and Schedule 8 coming into force on 28 October 2021, which is tomorrow. And then after significant conversation about that, Minister Kris Faafoi got up and said, “Oh, hang on. That’s been crossed out.”

💬 Chris Bishop: But it hasn’t.

I hear from my colleague Chris Bishop that it hasn’t been crossed out. So the question is: what are we dealing with? This is emblematic of a Government which is making up a law on the fly and is just making it up as it goes along. I mean, how can anyone have any certainty—

CHAIRPERSON (Adrian Rurawhe): Order! The member should know that he can’t make an accusation that someone is “making it up”. The member need only to look at Supplementary Order Paper 78 to know that he is not.

This is emblematic of a Government that is making law in a hurry, and it is making it in such a hurry that it doesn’t even know what it is doing. We have a Minister who tells us that a clause in the commencement has been crossed out, and yet we are hearing that it is actually not. So what papers have been tabled on this? This is utter confusion.

I wonder, if we look at Schedule 8, which clause 2 refers to coming into force on 28 October, I mean, has Schedule 8 been crossed out yet, or is that still happening? I mean, there’s so much uncertainty here that if no one in this Chamber can know what is going on, how on earth can the public understand what is going on? I mean, this is not a good way to make law. The Government really needs to step up its game and actually figure out when this law is commencing. I mean, it is a very simple question. How can you stuff up, quite frankly, clause 2 in a commencement section? Something so simple, and yet this Government can’t even get it right.

Mr Seymour has talked about Duncan Webb, and, you know, professor of law, and I have a lot of respect for that, coming from a legal background. But I have to say that Duncan Webb’s contribution when he got up to speak on clause 2 was less than stellar. I was confused. I’m glad that I wasn’t being taught by you, Duncan Webb, I think I would have been very confused as well, as I was this evening.

💬 Hon Member: Maybe it’s the traffic lights!

Maybe it is just like the traffic lights: everyone is confused, no one knows what is going on. It is just like this commencement section. I mean, how on earth does anyone know what direction of travel we are going in? We can’t even get a commencement to clause 2 of this piece of legislation accurate.

So I certainly hope that we are going to hear some sensible contributions from the other side to actually clarify for us whether or not this subclause (2) of clause 2 is ruled in or out, and why have they suddenly just ruled it out, if they have? I mean, why didn’t they get this right at the beginning? I mean, this is an important piece of law. It is changing a very important piece of—the certainty of our legislation, for New Zealanders and so they can understand that when they sign up to a contract, they will be able to rely on the Government to maintain the sanctity of that contract. This is a key, crucial part of our system and our rule of law.

So this Government is showing that you can’t rely on it to protect the sanctity of contract, you can’t rely on it to get the commencement clause right, and you can’t rely on it to actually know what it’s doing. How on earth can the people of New Zealand know what’s right if the Government doesn’t know what’s going on? I mean, come on. You need to step up your game, members opposite, and do a better job for New Zealand.

I move, That the question be now put.

The question is that the Minister’s amendment to clause 2 set out on Supplementary Order Paper 78 be agreed to.