COVID-19 Response (Management Measures) Legislation Bill

Thank you very much, Mr Chair. Well, that was something I never thought I’d do in Parliament. I think that was enjoyable.

I want to just refer back to remarks made by the Minister, in relation to the alert level system. Perhaps the Minister in the chair can elucidate further on the remarks made by the Associate Minister of Housing, who’s just made a contribution.

Very interesting language. The Minister in the chair said that this legislation reflects the Government’s—I’m paraphrasing, to be fair. She said this legislation reflects the Government’s changed approach to COVID, which is obviously a move away from pure elimination towards some sort of suppression strategy, and we’re now moving into a traffic light system—but that the Government would reserve itself the power to move back to an alert level framework. That is very interesting, because I don’t think we’ve actually ever heard that before from the Government, certainly not from the Prime Minister. So that raises a number of intriguing questions for the House, actually.

To be honest, I think we’re going to want to interrogate those issues over the next little while, because what does that mean in reality? So I suppose the question for the Minister in the chair now is: critically, under what circumstances would the Government revert away from a traffic light system operating in New Zealand and revert back to the alert level system? Now, there are some similarities between the two systems, and various commentators online have attempted to analyse what an orange traffic light for a particular region might mean in terms of the old system, in terms of alert levels. There’s been analogies drawn and parallels. It’s not completely the same, but there are some similarities. That would be quite tricky for people, I think, if we went to a traffic light system and then all of a sudden we went back to an alert level system. Look, people are discombobulated enough as it is, and, obviously, the good people of Canterbury, obviously, are anxious this morning with the news that there’s two COVID cases in Canterbury. We had the Blenheim case over the weekend. I know my good friend Stuart Smith, the MP for Kaikōura, has been in the media around that, and, you know, COVID’s now in the South Island and that’ll be concerning for people. There will be people in the South Island who’ve enjoyed a blessed year without COVID sitting there thinking, “Well, where’s all this going to go?” And they will be worried about that.

So, to return to the point, can the Minister elaborate further on his colleague’s remarks around under what circumstances the Government would seek to move back to an alert level system? Because that is quite a change from what the Prime Minister has said, and I think we deserve some clarity in the committee.

Thank you, Mr Chair. I want to actually talk a little bit about the Climate Change Response Act and how that is going to be impacted by this bill. Section 5X(2), inserted by clause 2, will replace 31 December 2021 with 31 May 2022. So this is around the response and the emissions reduction plan, and of course what I want to know is: this is going to have a material impact on our emissions reduction plan. So we start reducing our emissions as of 1 January 2022 for our first period. Now, we have a capped emissions trading scheme.

[Member gestures at Chamber clock] Mr Chair, I note my time seems to have flown by very quickly. I’m enjoying it a lot, but I didn’t think I’d already done four minutes, but there we go. Thank you. I do have that impact on some people sometimes though.

But getting back to the bill. So we have an emissions trading scheme, a capped emissions trading scheme. That means, by definition, we have a limited number of emissions certificates. Those certificates are required for every tonne of—one certificate is required for every tonne of emissions emitted. And so the Government has come out with a budget and that will limit the number of emissions—there’s a sinking lid—all the way through to 2050. It’s a great system, and will work incredibly well without most of us knowing it’s operating in the background.

However, before we get to May next year, we have an auction coming up of New Zealand Units (NZUs) on 1 December. We had an auction earlier in the year where we breached the cost containment reserve and more units were put into the market to cover that under the legislation. They have to be backed, and presumably they will be backed internationally. That means the Government will go into the international market, possibly the EU or some other country with an emissions trading scheme, a credible one. They’ll buy those certificates and they’ll shred them. That’s what we expect they’ll do. And that will then mean that emissions will be reduced elsewhere, effectively; we’re offsetting our emissions elsewhere, which is fine because actually the atmosphere covers the entire world and it doesn’t respect international borders.

However, we then have an auction coming up on 1 December, and then we have another one on 16 March, all before 31 May, and then immediately after that—on 31 May—on 15 June, there’s another auction. So you can see where we’re going here. We have a number of emissions certificates that will be auctioned well ahead of a settled emissions reduction plan. The emissions reduction plan has at last been released, or the draft one, and it was interesting in the select committee when I asked the officials, because in the preamble to this bill, it says quite clearly that the rationale for this change in this bill is that the consultation was delayed. In fact, the officials quite clearly said in select committee that the cause of this issue was the Ministers in Cabinet hadn’t actually made a decision. So it had nothing to do with COVID; it had all to do with the Government Ministers not coming to a decision and getting a draft emissions reduction plan out for consultation, and we would wonder why.

Clearly, there was some reason in the background. I’d like to know what that was, because it’s effectively what the Climate Change Commission put out in their report anyway. So it’s just a cut and paste. So what was the hold up in that? I’d like to know why, and I also want to know about the calculations and what informed those calculations around the emissions certificates that will be available next year in the first two auctions, because one will occur before 31 May and one will occur less than two weeks or two weeks after this legislation or this schedule comes into effect.

This is a very important issue, because the market is very sensitive to these things. These emissions certificates are not just traded when they are released into the market at an auction, they are traded daily through some markets. And I’ve just looked up a little earlier. We’ll go back a little bit. If we go back to just prior to the Climate Change Commission releasing their report, off the top of my head it’s something like $40 a tonne was the NZU price. Today it’s $65 and a bit of change. If we look out into next year, it’s $66 a tonne—that’s the futures market—and it’s through to $67 by 2026. So these things are being traded all the time.

💬 Andrew Bayly: They’re likely to go higher than that, Stuart.

Well, they will go higher than that, and Mr Bayly’s quite correct. They will go higher than that. This is a market which is supply and demand. Unfortunately, the Government can control the volume or they can control the price, but they can’t control both. They’re controlling the volume at the moment and they’ve lost control of the price, and so this is incredibly important, and the market will settle on a price. They don’t go out there and collude on it. It’s just a simple supply and demand.

What we don’t know is how they’re going to react to this, because we need a clear pathway through to 31 May and we haven’t got one. So the market will then make decisions. Why this is so important—I’m sure the Minister in the chair, Mr Faafoi, would be very interested in this. Why this is so important is that decisions are being made right now by landowners about what’s the best use for their land, what’s the best return for them. And I can tell you at $70, Minister, at $70 a tonne, that makes carbon farming a lot more attractive than it does at $65. And actually, it’s on its way to $100, I believe, just we don’t know when.

So these things are incredibly important and it requires the market to be informed. This bill is quite clear on what it’s trying to achieve, but it misses the market completely, and really what we have is an information gap. I think there’s an opportunity for the Minister—and I note, Mr Chair, you said who is coming to be in the chair today as the Minister in the chair, and we don’t have the climate change Minister coming in. Mr Faafoi is going to be a good substitute for that. So I’m sure he’ll be all over this. I know that he’s incredibly interested in it. I can see he’s champing at the bit now to get up and tell us all about it.

But I urge you, even if he can’t do it just now, to get those officials on to it and come back to us with a really good answer, because we have the 1 December auction, we have the 16 March auction, and then we have immediately after this comes into effect, on 15 June, another auction. And as I said before, the Government can control the volume or they can control the price, but they can’t control both. They are controlling the volume. What are they doing to assess the volume, given that they haven’t got an approved emissions reduction plan? How are they putting that—is there a wet finger in the air exercise? Is it informed by what? It’s something I know I’m incredibly interested in, I’m sure the committee is incredibly interested in, but more importantly those actors in the market are interested in this, because if they don’t know, they will make their own calculations and those calculations won’t be informed by what the Government’s going to do, because they haven’t told them. So they will make those assessments themselves. If the price goes up by, let’s say, 50 percent, which it went up by more than that from the Climate Change Commission’s initial report, right through until now—if it did that again, that would have a massive impact on land use in New Zealand, where we’d see, and I think in Keith Woodford’s words, he’s a former professor at Lincoln University, we will see the largest land use change in 100 years.

I can’t substantively respond to some of the technical questions that the—sorry, I’ll take my mask off—member Stuart Smith has asked, but I would note some of the comments that he made around the time-change range in the bill and some of the comments he made around what officials may or may not have said as to why delays happen. It’s pretty obvious that the ability of the Government to progress some issues has been delayed by the COVID situation, and that’s not the only work programme that, unfortunately, has had delays to it. So all I can say to the member is that from the Government’s perspective, that is the reason why the date has been changed.

I think we’ve come to the point in the morning where we should resume the debate around Schedule 6 of the bill, around the changes to the Property Law Act. When the debate last night, on 27 October, came to an end, there was a mood in the House which I thought was unfitting for the situation that is out there in the market, around making this a landlords versus tenants tussle. I want to reiterate some of the comments that I made at the outset of this debate and thank both landlords and tenants, and the overwhelming number of those landlords and tenants, who have found within their current contracts, whether they have rent relief clauses or not—and my understanding from the discussions that I have had is that many do now—and have managed to come to an amicable arrangement to meet a fair proportion of rent. I want to reiterate some of the things that I said last night. Some landlords have foregone all rent; some landlords have foregone partial rent. I’ve heard the odd outlier story of some landlords who have not only foregone rent but also assisted financially some of their tenants, because of the longstanding relationship that they have but also in order to make sure that there is a tenant in the future when alert level settings can return to where those businesses can resume trading.

The situation we have with this bill and the changes that are made in the Supplementary Order Paper I believe strike the right balance, given the feedback to the Finance and Expenditure Committee at the select committee period, to ensure that some of the concerns that landlords had around making sure that there was an actual revenue loss on the part of a tenant are taken into consideration. Another change in the bill is making sure that there is an onus for engagement, because in many cases that are unsettled at this stage, one party has refused to engage with the other and tried to aggressively enforce the lease as it stands. Obviously, the debate will flow this morning about the decision around retrospectivity of 18 August, which is the effective date of the alert level change more recently.

I would again stress that there is an issue to fix. There are a number—and it is a minority, but still a significant number—of small and medium sized enterprises who are unable to come to an arrangement with their landlord on a fair proportion of rent. So there is an issue to deal with—

💬 Andrew Bayly: Yeah, so what is it?

—and that is that many of those businesses—in the very electorate that the member Mr Bayly represents, and around the country—where there is an alert level setting which prevents them from physically being able to access their premises are up against the wall. We’ve heard about the stress. We’ve heard about the strain and the mental health impacts that the current alert levels have had on those businesses, and I want to acknowledge the work of the Deputy Prime Minister already in the assistance through the resurgence payments and the wage subsidy payments—$4.8 billion of resurgence payments and wage subsidy payments already to date, and we’re on the verge of, essentially, doubling the assistance that can be made to those businesses. Something needs to be done, and we believe it is a high bar that has been met and there is justification to make sure that those parties come together—

💬 Andrew Bayly: Why didn’t you do it last year?

—themselves and get to that fair proportion of rent. I hear Mr Bayly saying, “Well, why didn’t you do that last year?” So is Mr Bayly saying that he agrees with us doing it but we should’ve done it earlier, or does he think we shouldn’t have done it at all? Because Mr Bayly’s solution to this problem is to not get the parties involved together but to let the taxpayer pay 50 percent of the outstanding rent that may be at play. So I just want to outline the absurdity of that and some of the promises that the Opposition have made. Their plan is to increase support and reduce spending and reduce debt. Now, Mr Bayly, you can’t have it both ways. So why don’t you stand up here and say that your solution to this is making sure that taxpayers pay 50 percent of the outstanding rent, and that will come from taxpayers and that will increase debts under National, which makes your whole economic plan that you announced a couple of weeks ago a complete absurdity.

I want to ask the Minister some questions about the commercial leasing arrangements that he has in this bill. I want to start by outlining what I think’s a reasonable position and a position for the Opposition, which is that, actually, what he’s doing is an unprincipled interference in contract law.

We hear from the Minister about fairness all the time. Fairness this, fairness that, fairness everything—well, you know, we see it from them, don’t we? There’s fair pay, there’s fair wage—everything’s fair. I sometimes wonder if that’s spelled f-e-a-r, but, anyway, we won’t get into that in this bill. I just want to make the point that, actually, when Minister Faafoi, and, actually, any Minister or MP over that side, including the Prime Minister, uses the word “fair”—f-a-i-r—they’re using it politically and in no other way than that. Fairness is very much in the eye of the beholder. I’d go further: I’d say they’re weasel words from the Government.

I’ll give the Minister an example which I don’t think any reasonable person could say is fair, but it is exactly what his bill is going to lead to more and more of. It’s a real example of an elderly couple. One of them is 76 and one of them is 82. They own a commercial unit in Howick. It is their nest egg. It’s their big asset. It’s the thing that they supplement the superannuation rations with.

Following the Government’s announcement, they received an email from their tenants, who are a law firm, asking for a 50 percent rent—an outgoing reduction. The law firm’s got a good 11 or so staff who work there and who are all working from home, and the position of the elderly couple is that they simply cannot afford rent reduction or mediation or arbitration. They sit there, powerless, saying, “What can we do? What are we going to do?”, and yet that is exactly the situation that this Government is forcing on them in the name of fairness to the poor old renter, when the reality is that renters can be prosperous law firms. They can be multinationals like Amazon or they can be all manner of things, and yet he’s tilted, naively, it seems to me—and in the name of that weasel word “fairness”—the balance in favour of the renters throughout this, without thinking that through in any way, shape, or form.

I’d also just make the point, while I’m talking about this so-called fairness, that what we’ll also see—because we saw it the last time round we had lockdown, we will see a situation where renters right now, yes, they are doing it tough, some of them, very tough. They might be a purveyor of books or shampoo, or whatever it is, and it’ll be tough. But what will happen when the lockdown ends is that the next quarter and the quarter after that will be some of the best they’ve ever had, and there’s no clawback in this. The poor old landlord, who often is not the fat cat with 20 commercial buildings—and there’s a few of them; I acknowledge that—but there’ll be the little man and lady in Howick with one property, and they have no ability to claw back, even though the renters actually are doing very nicely, thank you very much. Yes, they had loss in the quarters of lockdown, and then not the others. This is a very simplistic, naive, and actually, I think, unprincipled approach here.

I’m going to ask the questions I want answered sequentially. I’m going to sit down and give the Minister an opportunity to answer them. The first is simply—there’s nothing tricky about this. It’s a simple sort of a thing I think we deserve to know, and that is: who has the Minister and his ministry consulted with over these aspects of the bill, and in what time frame did he do that?

The reason I ask is I have here—speaking of law firms—Minter Ellison’s submission to this truncated, shortened committee, saying, “We wish to record our concerns with the following features of the Proposed PLA Amendment, which we consider unnecessarily damage democratic and economic rights and freedoms … We say ‘unnecessarily damage’, because we think much of the harm associated with these features could have been prevented from a more transparent and accessible consultation and submission process.” So it could have been prevented. It wouldn’t have been as harmful, this law, in terms of that simplistic, naive approach I’ve talked about, with “a more transparent and accessible consultation and submission process.”

The New Zealand Law Society also go on to make a similar comment. Here’s what they say: “we are concerned at the very limited consultation period for this Bill. It seems to us a number of the matters in the Bill could have been anticipated earlier and a greater opportunity for response would provide more considered legislation.”

So who did the Minister or his ministry consult with and what was the time frame for that, and does he think it was remotely adequate?

I thank the member for his questions. Can I first deal with some of the points he made in the first half of his speech. As I made the point last night, the changes to the bill will ensure that the revenue losses of the tenant have to be taken into consideration where the fair proportion is being calculated, whether that’s between the two parties themselves, or if they come to some form of arrangement through mediation, or if a decision by an arbitrator has been come to. So if it were the likes of a big Australian-owned bank or a company like Amazon, as Mr Bridges said, they would be in a much different position to some of the small retail shop owners who are really feeling the pinch. So we’ve heard some feedback from the likes of the Hospitality Association and retailers who are welcoming these changes, because it is those small retailers, small operations who are—I think, from my understanding of the situation—going to be benefiting from the changes in this bill. That is why these changes are being made.

I asked my officials to engage with the likes of the Auckland District Law Society and the Law Society—very quickly, actually—to make sure that these changes could be included in this bill. Because, if the Opposition hadn’t noticed, we’re into month 20 of a global pandemic and, you know, our businesses are under strain. In making sure that we give them the certainty from that, especially given the last lockdown or the lockdown that we’re currently experiencing, the time frames that the member was talking about would not have met some of the expectations of those who are needing help more urgently than that. The Government wasn’t prepared and we wanted to make sure it acted swiftly so we could give some certainty and hope for those small businesses to continue operating.

Thank you, Mr Chair. I love that last comment from the Minister, “We’ve acted swiftly.” So we’ve had a pandemic in place now for 20 months and only today we’re still even trying to pass a piece of legislation to address the prime issue that most small businesses are facing, which is they don’t have enough cash to meet the requirements of their business. So I think getting a lecture from this Minister about our proposals is quite something. I think, probably, what’s happened since last night, someone’s given the Minister a call, probably Mr Robertson, and said, “Oh, please tone it down about being too hard on the landlords because, actually, some of them have done a pretty good job.” So I can see the attitude that’s changed this morning from the Minister.

But the central issue, Minister—it is too late. It’s too late. The Minister should have been putting in place something last year. The lockdown started in March last year, we’re now heading into November. And the issue is the thousands of businesses that have already gone out of business because they haven’t had enough financial cash provided by the Government. I would just suggest to the Minister that I think in history people are going to look back at the response from this Government in terms of the support, particularly around this issue, and say, “This Government was woeful.”

Now, he mentioned that the retail association and some of the other hospitality associations were in support of their rent package. Well, I can say to the Minister, when I announced what is in my Supplementary Order Paper, which changes Schedule 1A, that when I suggested the rental support package with the Government fronting 50 percent for those businesses, those small business that had a 40 percent or greater decline in their revenue, they were highly supportive. In fact, I can tell the Minister that they are only giving tacit support to this package that was put up last year and refused by New Zealand First and now reintroduced, essentially, under the same terms. The only reason they’re supporting it—and they’ve told me that—is it’s the best option they’ve got on the table. It’s the only option that the Government’s given them. Of course they’ve got to support it, because there is nothing else on the table.

This Minister has never done anything to do—and actually provided any concrete changes for 18 months. He’s been missing in action—MIA in action. First of all, my first question is—the Minister makes these statements like, “We’ve heard that there’s a lot of people that are supporting this, have entered into arrangements.” First question is: what is the source of that data and how many businesses—what is the estimate of the number of businesses that have reached agreement with their landlord? That’s the first thing.

The second thing: I know that the Minister of Finance quoted 80 percent of businesses had the ADLS—Auckland District Law Society—clause 27.5. He made that comment at one point. Again, in talking to hospitality businesses and associations, retail association, Restaurant Association of New Zealand, they all say that the numbers are significantly less and they actually think it’s probably closer to between 20 and 40 percent who have got those Auckland District Law Society clauses. So I’d just be quite keen to actually see whether the Minister actually has any data to support any of those comments he made in his opening address.

Thank you, Madam Chair. Minister, I’m interested in the amendments to the Criminal Procedure Act. This is being amended, I understand, to reduce mounting backlogs in the District Court caused by COVID-19 restrictions. I’m interested, having worked in this field for many years, what the difference is between the backlogs that were in the District Court prior to the beginning of 2020—i.e., before the pandemic began—and the backlog now? Because I know, having advised defendants on many occasions over the years that if they’re waiting for a jury trial, they may be waiting for 1 to 2 years, or even 3 years if there are some complications and pre-trial arguments that need to be argued prior to the matter being scheduled for a trial. So it’s very long and cumbersome. In fact, I tell defendants, “You’re getting on a train and you don’t know when the train is going to end. So just buckle in for a long ride.”

So my question is: how big a backlog are we looking at and how long is it going to take for that backlog to be processed; and what difference will it make for the High Court to be able to bring cases back from this court jurisdiction back into the High Court. I’m just looking at the wording of section 68A(1)—this is in Part 2 of Schedule 6—where it says that the High Court, when considering whether to bring this back to the High Court, on the judge’s own motion, may consider “a jury backlog arising out of particular circumstances”—and then it says, in (a)(iii)—“(for example, compliance with rules to prevent the spread of COVID-19);”. As I read that, the High Court’s being given jurisdiction to bring it back for any reason. It might be somewhere else, but I can’t see particular circumstances—they haven’t been defined. And it doesn’t seem to be specific just to the spread of COVID-19. So I would like to have some clarification, Minister, on that point.

There is another point, Minister, that we’ve just been talking about—landlords and tenants—and there’s a point I haven’t heard addressed yet, and that is saying, effectively, I think, that the assumption is that landlords are wealthier than tenants and therefore we need to socialise the costs to landlords. However, the primary outgoing for most landlords and the primary asset is actually owned by banks. I haven’t heard any discussion of what relief there is going to be for landlords in paying their rates, paying interest payments, and paying insurance. And, of course, any tenant, faced with a Government-mandated lockdown would say, “Look, I’ll take anything the Government will give me. If the Government’s going to get someone else to help me get through this, great.”, but my question is: has the Government actually looked at the cost to landlords and what the cost will be if they have to keep paying their interest payments yet don’t have the income coming in from the tenant to cover that interest? And therefore what economic carnage is the Government potentially setting up in the market for landlords who are unable to meet their interest payments to the banks given this intrusion by the Government into the contractual arrangements between the tenant and landlord?

It would seem, Minister, that the Government’s saying—and I’ve heard the Minister say today—“Look, this is a big cost. Someone’s got to bear it. We’re going to make the landlord bear it.” But I haven’t heard any discussion about how deep this dive goes. So if landlords start looking at having to collapse, is the next step for the Government going to be to look at the banks and say, “Actually, hang on. You have to make an agreement for a fair proportion of interest payments based on the rent that the tenant is paying to the landlord.”? Is this where the Government’s going? It would seem a logical journey to keep on socialising these costs further and further until we get to the point where we have some real problems in the market. With that, Minister, I’ll take a seat and I’ll be interested in your answers.

I thank the member for the questions. Can I just remind the Opposition that the bill itself, for the parties affected, requires them to come to an arrangement around fair proportion. Fair proportion in one situation may be completely different in terms of its makeup, in terms of who bears more of the onus, than another situation. So there’s flexibility within the bill to make sure that the kinds of inequities—that certainly the Government wouldn’t like to see, in some of those situations—being considered and an arrangement being come to can be met in the numerous numbers of situations that you might have to look at.

To the questions that the member had around the Criminal Procedure Act, obviously with Auckland and a large part of the Waikato having been affected by alert level changes more recently, the likes of jury trials have been affected. There is a provision within this bill to allow more audiovisual links to be used in the likes of coroners’ hearings, etc. Obviously, the quantum of backlog of cases isn’t as serious as it was in the first lockdown, because the whole country was moving alert levels, but that is not to say that it is not significant, because the Auckland court system has been running at reduced levels. I don’t have the numbers on me, but I’d also note that my predecessor, the Hon Andrew Little, was able to ensure that more resources were given to the Ministry of Justice and the judiciary to ensure that there were resources to deal with some of the backlog. We’re assessing the backlog size now, and the question around how long it will take to deal with some of that backlog is still obviously a moot point while we’re still at the alert levels we are. We’re well aware that there are disruptions, and the judiciary and the Ministry of Justice is trying to make sure that it can prioritise and triage cases that can be dealt with. But, certainly, there will be a backlog that, when we return to alert levels, or amber or green traffic light system levels, the judiciary and the Ministry of Justice will make sure that we are dealing with it.

Thank you, Madam Chair. My question is actually for the Minister for Social Development and Employment, but I don’t believe she’s going to be down here, so I’m hoping the Minister in the chair, the Hon Kris Faafoi, will be able to—

CHAIRPERSON (Hon Jacqui Dean): Order! The member won’t refer to a member who is not in the House—absent from the House.

Thank you for your advice on that. I’ve had a number of emails from my constituents, my retired constituents, who took the opportunity in the middle of the year, when the border was open, to go and see grandchildren in Australia. They had often not seen grandchildren that had been born or grandchildren that were young and they hadn’t seen them for nearly two years, and so they quickly popped over there when the window of opportunity was open but unfortunately got caught over there. I know that the Hon Louise Upston has also been made aware of this issue and in fact wrote to the Minister asking if leniency could be given to the superannuitants who were facing having their superannuation payments stopped because they were out of the country longer than is permitted.

So the Hon Louise Upston has tabled an amendment which enables those superannuitants who cannot get back to the country, through no fault of their own—and in fact have been unable to return to New Zealand because they’ve been unable to secure a managed isolation space, despite making all reasonable efforts to do so. We believe that this amendment would make a much fairer situation for our superannuitants who have been caught, through no fault of their own, over in Australia.

While they can apply at the moment for an exemption, it’s not a particularly easy process. I’ve been through the process myself, not as a superannuitant but as a parent of a child with a disability, when overseas is in the same situation. It isn’t a particularly easy process, and we know that the stress levels of a number of these retired folk who are out of the country are getting extremely high. They rely on their superannuation payments to live on, and they are concerned that they’re having to live off family if their superannuation payments are stopped, and they are concerned with the process of, essentially, having to go begging to have what is their entitlement continued.

The Hon Louise Upston has put forward this amendment, and we would like to know if the Government is going to support this amendment, because it seems a very reasonable thing to do—a very kind thing to do, in fact. If the Government is not going to support this amendment, we would be very keen to know why they want to continue this situation for our superannuitants who are caught, as we’ve said, through no fault of their own. Many of them are not as technologically savvy and so are not able to get on and stay on the internet and try and win one of the lottery managed isolation and quarantine rooms. They don’t perhaps have that level of technical ability, and so they are really being left in a very, very difficult situation, becoming very stressed by the situation, and it would be seen, I think, as a very sensible and reasonable thing for this Government to support the amendment that has been put forward in the name of the Hon Louise Upston to amend the New Zealand Superannuation and Retirement Income Act 2001. Thank you, Madam Chair.

Thank you, Madam Chair. Well, I’m still waiting for the Minister to stand up and provide some support to his comments about the number of parties he believes have reached agreement between the tenant and the landlord, because I think it’s a pretty important question to be asked. It’s great to be able to stand up and make claims like that in the Chamber, but unless there is supporting documentation or whatever, it’d be good to know what that is. Secondly, the issue around how many tenants does he believe—or property agreements does he believe have the Auckland District Law Society 27.5 clause. Because I think that underpins a lot of what he’s suggesting in this package.

So, I suppose, as I’ve said before, why has it taken so long to get to this point? But that’s a separate issue. I think the big thing that most people find troublesome about the proposed solution that was offered last year but never put in place with what the Labour Government is doing now, is it turns on this definition of “fair proportion”. I note that the Minister has said that there is an element that refers to revenue, but a definition of fear and a perception of fear is always different between parties, particularly if you’ve got two parties. And, as my colleague Joseph Mooney quite rightly pointed out, in some cases, contrary to the view of certain Labour members and certainly Miss Genter—she expressed last night that all landlords are, basically, rich people and they can afford to do everything, and, by the way, they should be shouldering the burden because they’re making lots of money anyway. It sort of detracts from reality, which is, in many cases, landlords do not have a lot of spare money. In fact, a lot of commercial property is actually owned by mums and dads who are seeking to get their income for their superannuation or whatever, and, in many cases, they actually have borrowings against it, and they are financially constrained as much as anyone during these lockdowns that the Government is imposing on New Zealanders.

So the definition of “fair proportion”—this is the issue, because, as I say, what is fair? If a landlord has previously been very supportive—and I know that many landlords have, where they’ve given vast discounts in the previous four lockdowns. And, of course, we’re now into our fifth lockdown. What is it—73 days, 74 days of the current lockdown? They may have given significant financial support to their tenants over the course of the last year and a half, but this lockdown, they may actually be in a situation where they cannot. Their bank’s saying to them, “Don’t do it, unless you want to mortgage up your house or whatever. We are worried about your income levels and we’re simply not in that situation.”

Now we’ve got a Government who thinks, “Oh, don’t worry about those arrangements at all being entered into. What we’re going to do is we’re going to go retrospective and just look at the current lockdown.” And they go back to 28 August, or whatever, and say, “Hey! Guys! You’ve got to re-negotiate something, because, you know, we just think it’s right.”, even though it does not take into account what’s gone on for the last year and a half. This is why it’s such a sloppy piece of lazy legislation that the Minister is proposing. So now you’ve got to debate what’s fair—fair in the context of what we’ve done in the last 18 months, fair in the context of what’s happened on this last lockdown. So that’s one issue.

One is, what’s revenue? Revenue is one measure, Minister, but I know you’re not from that background, but, actually, the only thing that really counts in business is profit and cash, and cash is probably the main one, actually, just to give them a bit of a helping hand. So talking about a loss of revenue—yes, it’s a good partial indicator. But what happens if you’ve got a large multinational who’s renting a property from a small mum and dad investor and their view on the decline on their revenue is quite strident? And, actually, they’re saying, “Well, we’ve lost 25 percent”, or whatever, because there’s no indication in the legislation, “We’ve lost 25 percent, so, therefore, we should have a 25 percent decline in our rent.” That sounds fair, doesn’t it? Actually, 25 percent reduction may actually not be in that situation, because they have been able to reduce their staff, or whatever, to try and deal with the issue. So this issue about fairness is one that strikes to the core of it.

I want to talk about a situation—I actually modelled this. This is a hairdresser in Papakura. I can tell you that during the last lockdowns—[Time expired]

I’ll respond to some of the points that Mr Bayly has made, because I think I’ve substantively addressed some of them in the debate that has been going on both last night and this morning.

To make it very clear for the member, we have said to make sure, in the legislation, that revenue gets taken into account when a fair proportion—that doesn’t limit it to revenue alone, Mr Bayly. Now, we chose not to give guidelines in the legislation because there could be a whole range of gnarly situations, just like Mr Bayly has outlined this morning, that we don’t want to necessarily limit in the legislation—we want to give freedom around the calculations that we could come to because of the situations that may have to be dealt with.

The other point I want to speak about, Mr Bayly, is this: it’s not about renegotiation. If some parties already have the Auckland District Law Society (ADLS) clause in it and have come to a fair arrangement, then they’re sorted. I want to reiterate to those people at home: this piece of legislation will only apply to those who don’t have an ADLS clause in their contracts currently. So I just want to make sure we make that very clear.

In the conversations that I had with stakeholders from the beginning of this year—or late last year; my memory can’t serve me quite precisely—we had the likes of the Auckland District Law Society saying, “Actually, we think an overwhelming majority of the commercial landlords and tenants have actually got the clause within their contract.”, and I took weight from that. Then we have the likes of the Retailers Association and the Hospitality Association and other small business owners, who said, “Well, actually, it might not necessarily be the case.”

And, Mr Bayly, I think you’ve actually made a rod for your own back when you say that the likes of the Hospitality Association and the Restaurant Association believe that only 50 or 60 percent of their members have the ADLS clause in their contract, because that actually means the problem is bigger than we probably initially thought, so there’ll be more people who will be able to take benefit from this change—if they haven’t been able to come to an arrangement with their landlord. So which one is it, Mr Bayly? Is it 50 or 60 percent? Which number that you’re quoting from the Restaurant Association and the Hospitality Association is the right number? Because we had to balance up the likes of the ADLS, who said, “Actually, we think a majority of these clauses are within the contracts.”, and the likes of the Restaurant Association, who said, “Actually, our guys who can’t operate are up against the wall.” And the plain hard truth is: that is the truth. And you know that too, Mr Bayly, which is why your party wants to do something about this too. So there is a problem, and we are dealing with it, and the best way to deal with it is actually to get those parties together to come to a fair proportion of rent.

Tēnā koe, Madam Chair. Just rising to speak again in support of my colleague Chlöe Swarbrick’s Supplementary Order Paper 74, which would amend Schedule 6 to take it back to the very first lockdown, the beginning of the first lockdown—the definition of the “affected period” when we talk about commercial tenancies.

I do want to thank the Minister for his answers. I think that they’ve all been very reasonable, and we’re really pleased that the Government has picked up the amendment that Chlöe had proposed—Chlöe Swarbrick—to go back to the beginning of the current lockdown, but we think it would make sense to be able to take into account other periods of lockdown, when obviously people have been very constrained in their ability to trade goods and services during lockdowns, and that’s because of the global pandemic. The Government rightly intervened and gave us a huge period of time in which we were able to trade because we had such an effective lockdown in 2020, but there are still issues for those who have excessive rent in arrears. Of course, that’s not to impugn—I’m sure there are many landlords that have taken into account the difficult circumstances that people are in and they have come to agreements. But ultimately the law changes are set to protect everyone and set a kind of baseline for that so that—the good landlords are not punished by these changes; it’s the ones that ultimately are trying to seek excessive rents during periods when it’s just simply not possible.

I know the National Party is trying to mischaracterise my comments and say that it’s somehow personal. It’s not personal. What we’re talking about is a system and trying to make the system more fair. Everyone in our society has been affected by the pandemic. Everybody has had to make sacrifices. It’s really important that Government has been able to step in and protect the most vulnerable people, provide financial support. We agree with all of that. But ultimately a system that here in New Zealand sort of privileges investment in property over real work isn’t fair. That’s not to impugn anyone who has done that to get ahead, because, of course, people make decisions in the system as it is, and that makes sense in that context. But to stand there and say we should continue to keep the system unfair—to me, that’s really objectionable, and that’s of course what the National and the ACT Party are advocating for.

They can’t tell the difference between productive enterprise, which is creating goods and services for people—you know, building buildings and building new buildings is a productive thing. But simply owning it and earning excessive profits off that ownership is rentierism. I mean, anyone who has any grasp over the economy—[Multiple members interject] I think the difficulty for them is that they conflate what’s good for them as individuals with what’s good for society. Yes, it’s been possible to get ahead by owning property. That doesn’t mean that it’s good for the economy for a small number of people to continue earning greater returns.

In particular I think it’s objectionable that there’s no sort of asset tax, really—no capital gains tax, no asset tax—that reflects increases in asset values. That’s what’s being ignored here, is that—it’s not socialising the losses. Socialising the losses would be the Government bailing out the landlords, and the landlords walking away two or three years from now with massive capital gains that are then privatised from Government policy, which has been to support the economy. I know they really struggle with this concept. But when you look at what is productive in society, it’s trading goods and services, not owning something and extracting rents. Yes, you’re getting rich, but you’re actually taking away from the productive economy. I know that’s a struggle for people to accept if they personally have gotten wealthy through this particular means, but it’s not fair.

I think Joseph Mooney made a really good point about, well, what’s the banks’ role in all of this? Obviously, interest rates have been at record lows, so expenses haven’t been excessive. But there is a question about what role the banks should be playing. I know that the Government made some provision for mortgage relief during the time of the first lockdown, but I think probably we could have gone further on that.

The other amendment to Schedule 6 that I just wanted to speak to was the one around overseas voting rights. I do think it’s really important that the Government does take action on this issue. Even if managed isolation and quarantine opens up and there is more freedom to travel next year, there will have been an extended period of time in which New Zealanders residing overseas were not able to return to New Zealand. When things start to open up more, there are still going to be huge constraints in air travel—much more costly than it was several years ago. So I think it’s really incumbent on the Government to make sure that those New Zealanders who haven’t been able to return home because of the global pandemic still have the ability to participate in elections. That is why my colleague Golriz Ghahraman has moved—[Time expired]

I might just take the opportunity to gather up a few issues that have been raised over the last couple of contributions. First, to the Hon Julie Anne Genter in relation to the Supplementary Order Paper (SOP) that she mentioned at the beginning of her speech. The Government is extremely proud of the way that the economy has bounced back after the initial lockdowns and, because of that, the period for the retrospectivity only goes back, obviously, to the beginning of this lockdown because we believe the strength of the economy for the initial lockdown has spoken for itself.

In terms of the last issue she raised around an SOP around overseas voting, as we have said before in the House during question time and in questions from media: we understand that the Justice Committee is going to be coming back with its report on the previous election and if that issue comes from the select committee, then we will consider it given the situation that we’re in, but we’re not making any commitment to what that might look like.

Also, finally, Penny Simmonds raised a question around New Zealand Superannuation and an SOP on the Table under the name of Louise Upston. I believe—and I’ve been advised that there is already some discretion within current legislation—the situation that she outlined at the beginning of her speech would have predominantly covered travel when the quarantine-free trans-Tasman bubble would have meant that the likes of grandparents who went offshore to go and see friends and family—I believe there is some discretion when the travel wasn’t for a long period of time and disruption wasn’t foreseeable, that the Ministry of Social Development takes a case-by-case approach into some of those issues, which is why we won’t be supporting the SOP that’s on the Table. So we believe there is a release valve for those cases already. So that should take care of that issue.

Thank you very much, Madam Chair. I actually wanted to rise and speak in support of the tabled amendment from Louise Upston that Penny Simmonds spoke to. I do think that we’re in a difficult situation if we’re relying on the Ministry of Social Development to rely on discretion and that probably a lot of people will be missing out. There’s certainly been a lot of difficulties experienced by people who found themselves in Australia or elsewhere and unable to access an income as they’ve been trapped overseas. The one difference that we would probably have with this tabled amendment is that we actually think that there’s probably a few too many hoops to jump through. It makes it bureaucratically complex. Just keep it simple, if you were entitled to super before and you found yourself in Australia due to COVID, then you’re eligible for super payments as long as you’re stuck there. I think that is a perfectly reasonable change and one that the Green Party will very much be supporting.

We are really looking forward to what the Justice Committee has to say. I do think that we don’t need to wait for that sort of report. If New Zealanders overseas haven’t been able to return home for over two years because of a global pandemic, they should still have the right to vote. We’re an absolute outlier in the world in terms of restricting citizen’s ability to vote when they’re residing overseas, and given that we’re a country where many people do go overseas for extended periods of time, then we think they still, absolutely, as citizens and people who pay attention to what’s happening here at home in Aotearoa New Zealand should have the right to participate in voting. As someone who was born in another country and as a citizen of another country, I can tell you that the United States doesn’t impose these sort of restrictions on people’s ability to vote, although I do have to file US taxes, which is an absolute nightmare. You guys have no idea how lucky we are here. If you’ve never seen US tax forms, they’re horrendous.

Then finally, just coming back to the points on the commercial tenancies—look, we just think, ultimately, that these sorts of provisions should go all the way back to the beginning of the first lockdown. Even though the economy did bounce back, it wasn’t in an equal way. There will be people, particularly in hospitality, who have really struggled and struggled during the period of the first lockdown and still haven’t been able to catch up, and so it just makes sense. When we suffer these sorts of, you know, global phenomenon like a global pandemic, where everybody is affected, we just want to make it as fair as possible for everyone to be able to carry on. Obviously, trade and many of the types of economic activity we were engaged in prior to the pandemic were restrained. Some types of economic activity have benefited from the pandemic. I’m sure Zoom has done really well out of it. Online meetings, delivery services—so some have done really, really well but it’s not totally equal. I think it’s just really important that we acknowledge that and our law acknowledges the changing circumstances and enables people to—I think what the Government’s proposed is really quite reasonable because it is just asking for tenants and landlords to come to an agreement and be able to consider how the changes with the lockdowns has affected them and come to a, sort of, fair proportion.

Finally, I think we’ve moved on from Schedule 5, but, of course, we do have Supplementary Order Paper 70, which is about residential tenancies. I know that the Minister spoke to that earlier this morning. Unfortunately, I don’t believe the changes to the Residential Tenancies Act have gone far enough. Certainly if you talk to tenants, advocacy groups, and tenants’ unions, renters are still in quite difficult circumstances. We haven’t gone far enough as a Government to provide protection and security for people renting with the Government’s changes to the Residential Tenancies Act. So we do think that it would be appropriate to have a rent freeze during any sort of level 3 or level 4 lockdown. Really, probably, we need to go quite a bit further with protections for residential renters, and that’s why the Green Party has been campaigning generally on rent controls, particularly during this time where we’re waiting for the supply of housing to catch up with demand. It’s created a situation where those who rent are in quite dire circumstances. Property owners are in quite good circumstances. They’ve got quite low interest rates to contend with. They have rapidly skyrocketing asset values, and if that continues, then they’ll be really well off. But as a society, we’re not well off if we have a group of people who are increasingly in difficult circumstances because they’re—[Bell rung]

Thank you, Madam Chair. I was really quite enjoying the previous speech from Julie Anne Genter. I’ve forgotten what chapter we’re up to on Das Kapital but we got a bit of a rundown on it. It wasn’t nearly as entertaining as her speech last night. I thought that was the cream on the cake, and I hope she can reach those heights again today.

I am still waiting to hear the explanation around the implications of the number of units that will be available in the market through the next year for the auctions of New Zealand Units. This is a really important market issue and that has not been addressed yet by the Minister. I realise it’s not the particular Minister in the chair’s role, but he’s had ample time to get advice on this. It is incredibly important. On 2 December 2020, this Parliament declared a climate emergency. We voted against it, and what we’ve said was because it’s not the type of thing you’d declare an emergency. The Government said it was. They were supported by the Greens—I don’t know which chapter that is in Das Kapital. But that emergency declaration has been followed by anything but urgency from the other side of the House.

This is an incredibly important issue, and the market needs to be informed. As Mr Bayly will know, market uncertainty will drive outcomes that will be undesirable. So the Minister has an opportunity to get some advice and let us know, because the market will be watching. I’m very interested to hear what the Minister has to say, but it’s not only me. There are all those actors out there, including landowners who may make decisions to convert their property to a carbon farm based on the assumptions or conclusions that they come to. This is an important issue, and as I said before I finished my last speech, as Keith Woodford said, we are facing the greatest land-use change in a century. Keith Woodford is very respected in rural sectors. He is a very learned man, and his analysis is, I think, right on the money, and the pun was intended, because it is driving all of us. This New Zealand Unit price is driving not just change in land use but change in rural communities. That potentially could lead to a greater environmental perverse outcome than the one we seek to solve. I think it’s incumbent on the Government, who has deemed it worthy to include in the bill the Climate Change Response Act amendment.

I heard the Minister say that he kind of tried to refute what the officials told us in the Finance and Expenditure Committee, but I’m sure my colleagues remember that, even the chair of the committee was there; I’m sure he heard it. It is quite concerning that it is really just about poor process on the part of Cabinet—not getting their backsides into gear on something that really shouldn’t have had any controversy, unless there’s something that they haven’t told us that was going on in the background. The emissions reduction plan is simply a cut-and-paste exercise from the Climate Change Commission’s report. There is nothing new in it. There’s nothing that’s earth-shattering, so why have Parliament’s time here debating something that’s now caused more uncertainty, more uncertainty in the market, which drives, potentially, perverse outcomes not just for those people who are seeking to offset their emissions but those people that are making day-to-day decisions on what they’re going to do with their land and how they are going to react in the future? These things are long-term issues. They’re not going to be sitting around on their hands until 31 May next year to make some of these decisions. They have to put them in motion now. They have to seek advice. It’s a long process, and by then those things will be set in stone.

Thank you, Madam Chair. I think we’ve had a bit of a go on Schedule 6, but I just want to finish off before I start turning to some of the other schedules. The first thing is, I know the Minister is not very good with numbers, but no one ever quoted, and I certainly didn’t quote—

💬 Hon Kris Faafoi: What about the employment numbers? Ha, ha!

—anything to do—3.8 percent for male unemployment, 4.2 for female, and 4.0, right? So Auckland District Law Society—

💬 Hon Kris Faafoi: Stop using Goldie’s calculator!

—I didn’t hear and didn’t quote anyone who said that Auckland District Law Society, 27.5, was 50 to 60 percent. I don’t know where you’ve plucked that number. You obviously didn’t listen. What I suggested to him, the association said it was between 20 and 40 percent. But the—

CHAIRPERSON (Hon Jacqui Dean): Order! Order! I am ready for the member to now address the bill.

But the issue is, even with the Auckland District Law Society clause, which underpins the approach that the Government wants to take, there are issues with that because the definition of “Can I enter the premises or not?” is one of the core parts of that. So, for instance, we heard from Michael LeRoy-Dyson, who is a business owner in Auckland, who owns the Attic Backpackers. He has one of those clauses, and yet there’s still a dispute with his landlord because the landlord is saying, because you can physically enter the premises, you should be required to pay the rent. And so now you’re back down into this situation. This is the whole thing about fair proportion. The issue about fair proportion, and the proposal that the Government has put up, is that if you’ve got disputing landlords and tenants, it doesn’t matter what you say, if you just use a bland, holistic approach, one that’s ill defined—which this is—you’re going to lead to a whole lot of issues. And that is simply—we arrive 18 months later, because the Minister hasn’t been able to actually put forward a proposal that means anything. Eighteen months later, the situation we’re talking about now is that there are disputes between landlords and tenants, and we’ve got a Government that wants to ride roughshod over that and put up a solution that actually makes it quite difficult for warring landlords and tenants. Yet the Government’s view is: “We’ll just impose the ability to go back and you can be retrospective about it.” I think that aspect of it is totally wrong.

But the question I now want to ask, because I’m not sure that it’s been addressed, is: given that we’re in a dispute situation, there’s clearly a landlord and a tenant that has not been able to resolve it, and that’s why you’ve chosen to do—why the Minister’s chosen to do this change.

CHAIRPERSON (Hon Jacqui Dean): Order! The Speaker has not chosen.

Yeah, I realised that. The Minister has chosen to put up this clause. What is the ability to actually resolve this matter quickly? If there’s a dispute over fair proportion, what happens next? Because, obviously, there will be a long situation where there’s been a dispute around that. Does the landlord or does the tenant have to go to mediation? Do they have to go to arbitration? Who pays for that? Is there any money? Because when this proposal was put up last year, there was an amount of money set aside for it, I think, $40 million, of which, I think, only a few thousand was actually drawn down. What is the situation? Because again, I’ll remind the Minister, these are situations where these businesses are burning cash or probably burnt through all their cash. They are running out of cash. They don’t have time. They certainly don’t have money to go to expensive mediation or arbitration processes, or, in fact, be able to take their case to law, to courts.

So what is the support that the Government’s offering to put up to help these processes be resolved quickly? And is there any monetary support to that? And are there any time limits on the amount of time that the arbitrators or the mediators have to take to resolve this? Or is it just that we’ll leave it up to it and hope the process works that way throughout? And, in the meantime, the businesses go broke if they can’t pay their rent. So it’d be very, very useful if the Minister can be a bit more clear about it, because I think the time of this is going to lead to more businesses going broke when they shouldn’t be if there was a proper proposal put up to support them with their rent check.

Madam Chair, thank you. It’d be really useful if the member would actually read the bill, because the subsequent changes from the select committee, given the stand-off situation we have with some landlords and tenants, has within it an amendment which requires an onus: if a party engages, the other party has to respond within 10 days. We did that to make sure that things actually move. The purpose of this bill is not to get to arbitration, but it is a backstop if those parties cannot meet an arrangement to get to a fair proportion of rent.

💬 Andrew Bayly: They’re already in dispute, so they’re unlikely to.

In the alternative world that Mr Bayly lives in, we should just leave things as they are and have a stand-off where nothing happens and businesses go to the wall.

💬 Andrew Bayly: No, not at all.

Yes, it is. That’s exactly the situation that you’re pointing out. So if you want to get traction on the situation that is happening now for those who don’t have the ability to come to a fair arrangement with either the landlord or the tenant, the change that we’ve made in Supplementary Order Paper 78, around the onus to engage, will do that, because if we don’t, then you’re straight off to arbitration. Again, I want to reiterate: arbitration is the backstop if the parties cannot come to an arrangement. We do not want that to happen. And as, I think, some of the members opposite and some of the stakeholders that we have met—there has been an overwhelming number of landlords and tenants who have been able to come to an arrangement. So the question is—

CHAIRPERSON (Hon Jacqui Dean): Order! Order! Sorry to interrupt the member. Could I ask the member sitting towards the back of the House to replace her mask.

💬 Hon Julie Anne Genter: I was just drinking water.

CHAIRPERSON (Hon Jacqui Dean): Thank you.

Sorry, I lost my train of thought there.

💬 Andrew Bayly: What happens after the 10 days?

The point is not to get to arbitration; the point is to get to the point where a majority of other landlords and tenants have already got to, Mr Bayly, without needing the legislation, which is why the legislation is necessary. And, again, in your alternate world, we just leave things as they are and leave the stand-off in place, which will mean, Mr Bayly, that the small and medium enterprises that you claim to be fighting for here will continue to have the difficulties that they have had since 18 August, and many are stressed out and worried and have mental health problems—as members opposite all know as well—and something needs to be done.

I move, That the question be now put.

I’ve been listening very carefully to the debate since I assumed the Chair. I was advised, when I came into the Chair, that the debate was relevant, was traversing a number of issues, and was lively. I’m going to keep the debate going for a little longer. I’m mindful that there are a number of statutes and a plethora of clauses which are being amended by this bill. But I am looking for new material, I’m not looking for repetition, and I’m also looking for relevance.

Point of order, Madam Chair. I appreciate we’ve got the Minister, and it’s good that he is here in the chair. We were under the understanding that we were going to have revolving Ministers. I think there’s been a bit of reluctance from our side to—going into new territory—

Thank you for that. [Interruption] Thank you. Not having been in the Chair at the time—probably no excuse—I’m not aware of an arrangement of that nature, so what I’m going to do is just take a moment to see if I can satisfy what you’re asking for. Thank you, members, for your patience. Before we proceed with the committee, I’m satisfied that Ministers have been available to take questions. There is still a Minister in the Chamber, in the chair, who is actively addressing questions raised by the committee. We will continue on that basis.

Thank you, Madam Chair. OK, thank you for that elucidation. I just want to return now to Schedule 5, which is the termination for antisocial behaviour. With the previous Minister in the chair, we were traversing some of the issues in this part of the bill, and we were talking about the difference between the 28 and the 14 days. But I just want to talk to them and get some advice from the Minister around the termination for antisocial behaviour.

As the Minister will be aware, if there’s a COVID-19 tenancy order that applies to an area, the landlords of a tenancy in the area can apply for an order terminating a tenancy on the ground of antisocial behaviour. Then, in subclause (3), it talks about how the tribunal must not make the order if it’s satisfied that doing so would be unfair because of the circumstances in which the behaviour occurred—for example, circumstances of family violence—or the impact that terminating the tenancy would have on the tenant, which is—that second bit, obviously, is pretty significant.

Perhaps the Minister can help in regard—first of all, whilst I think everyone understands the need to make sure that if a COVID order is in place, tenants are protected and we don’t see tenants being thrown out on to the street during a situation where it’s difficult for them to find new premises or they just literally haven’t made arrangements where to go and are unable to cross borders if they were still in place—those types of arrangements. So I think the principle of that we all understand.

But this issue around termination for antisocial behaviour—and, unfortunately, there are many examples of this. So just a couple of specific questions. The first thing is: if we were in a COVID-19 order situation, how long would it take to get a decision—and whether, in fact, the tribunal is going to sit? Because we’ve seen, for instance, the Ministry of Transport, in certain instances; Waka Kotahi, in many instances with licensing—just to name some Government agencies that are literally in the situation where they’re not prepared to do a certain amount of work because of COVID restrictions. I just want to make sure that there’s clarity around, if we’re in a COVID lockdown, whether the tribunal would sit—and how long would they take to respond to those types of issues?

The second one is: what does it mean, “the impact that terminating the tenancy would have on the tenant”? Because if it is simply that the antisocial behaviour is being condoned in any way, that would be pretty concerning. So I’m trying to understand what is the criteria around when you would not be able to get rid of a tenant for antisocial behaviour because of the impact terminating that tenancy would have on the tenant—what does that mean?

One of the, I think, significant things about any law that comes through this Parliament is that we want to have a sense that, actually, there has been, in the absence of Ministers competently looking at the issues, a good not just process but substantive analysis by the Government departments and agencies concerned. And I want to ask the Minister a specific, I think, straight question that hasn’t been addressed so far in the committee in relation to the commercial leases aspect of this. But I just want to flesh out the point that I made: in good laws, certainly the path that I’m familiar with as a former Government Minister, there would be a series of, you might call them “hoops”, but processes to go through, regulatory impact statements, Department of Prime Minister and Cabinet (DPMC) reports, various memoranda, legal reports about the necessity, the desirability of a law change, the scale of the issue, the problems, some data, and some evidence base on which to do it. And this is a Government that talks the talk about evidence, says that it’s all about it, and “Leave this to the experts.”—we’ve had epidemiologists up the wazoo giving us their views of life and the cosmos, in this country, but, actually, I don’t know—

💬 Hon Andrew Little: That member says to ask them.

Well, the reality is this, Andrew Little: epidemiologists aren’t economists. They actually aren’t, in all cases, public health experts. They aren’t, in all cases, educationalists, who understand the ramifications of policies in a broader sense. And that’s, frankly, Andrew Little, what’s been missing so badly from this Government with lockdown—a situation where all that’s going on is reliance on a few epidemiologists and a guy called Ashley Bloomfield, and no understanding of the very real downsides of lockdowns and the Government’s strict approach. But I digress.

I come back to the point that we want to see some good process and substance in making laws. And my concern overall, actually, is that this Government has got away from that. I worry about the Public Service and the strength and weakness, actually, of them—that they don’t stand up to that, and that those processes have been eroded. And, in relation to the commercial rents aspect—

💬 Hon Andrew Little: That member has never worried about the Public Service.

See, again, Andrew Little chips that I have no regard for those things. I don’t make the mistake that he makes—

💬 Hon Kris Faafoi: Stop taking the bait! Hook, line, and sinker!

Well, there’s 10 minutes to fill here—there’s 10 minutes to fill here, Kris Faafoi. I don’t make the mistake of equating quality and quantity as the same thing. You see, Andrew Little thinks, if he employs another 10,000 public servants, which is what Labour’s done, actually, over the last four years, that somehow that makes a better response. Often times, it actually makes things worse. I’d rather fewer, well-paid, quality public servants. But the point I wanted to make is this—

💬 Hon Andrew Little: The National Government ran it down.

He says that we ran it down. Well, actually, inequality’s got worse, housing’s got worse, no roads have been built, and nothing’s happened in public transport—I could keep going on. Public services are worse. We’ve got less surgeries in our hospitals—that was even before COVID; so I don’t think that case made it.

But my question to Minister Faafoi is simply this: whether he has had any advice and whether he knows the size, the scale, the quantum of the potential rent relief here. Or is he just flying in the dark? Does he literally have no radar, no scanning, no ability to know what is happening here? So I want to know the answer to that. And I would note, on my wider point around whether or not there’s been any analysis, any regulatory impact about this from the Ministry of Justice, from Crown Law, from DPMC and the like, this is what DPMC says—and this is an important point that has not been made in this debate so far—the DPMC disclosure statement states that they don’t know the size and scale of the problem or how many commercial leases this will impact.

Thank you, Madam Chair. I think most of the questions that the member Simon Bridges has just asked have already have been asked in the debate, so I’ll let him read the Hansard if he wants the answer. I do think Mr Bayly asked a reasonable question around Schedule 5, so to answer his question about whether or not a tribunal in a case of antisocial behaviour will meet, the answer to that question is yes. They will meet in lockdown situations and, obviously, given the nature of the situation, will come to a timely decision, given the situation.

💬 Andrew Bayly: What does that mean?

Well, because the tribunal always has to deal with different issues; some are more urgent than others. If you’ve got a situation around safety of either current tenants or a landlord, then it could—and I’m pretty sure it would triage the situation to make sure that there is a timely outcome as opposed to it being prolonged. So there’s an answer for Mr Bayly’s question around Schedule 5.

Thank you, Mr Chair. Minister, I want to ask you some questions about Schedule 6, “Part 1: Amendment to Coroners Act 2006”, which is about the Coroners Act. The reason why I have come to questions upon this is because I spent a couple of years working for the coroner in Rotorua when I was a little bit younger. I am also quite aware that we have a huge delay in coroner hearings being heard at the moment, so much so that I’ve heard of, in particular, one family who have been waiting over eight years. I see that in Part 1 of the Coroners Act, you’re wanting to introduce the use of audiovisual links in order for those families to be able to progress the coroner’s hearings.

What concerns me about this is while it’s great to be able to progress and keep it going so we don’t increase that backlog, to do so over audiovisual is quite cold in some circumstances, especially with tragic deaths. I just wonder whether or not the Minister, in bringing forward this remote participation use in Part 1, new subsections 102A(1) and (2)—whether or not, Minister, we would have something available for the families that go through audiovisual set up to help them and to address any questions or concerns they have about the process, but, more importantly, some support services for those families within their homes as well.

Hearing some of the information that can be heard during a coroner’s hearing can be very, very distressing for many families, and the concerns that I have, Minister, is that families will be sitting in their homes alone. Sometimes some of them are just single parents or a sibling that has no support going through the process when it’s audiovisual. So while I do appreciate the fact that we’re wanting to ensure that we don’t have a backlog, or we don’t add to the backlog that we already have, that we are actually able to support those families, have them ask and get answers to questions, and I also wonder at what cost that would be. Thank you.

Thank you, Mr Chair. I just want to make sure I respond to Nicole McKee’s question around Part 1 of Schedule 6, around amendments to the Coroners Act. At the moment, the coroner’s office already uses audiovisual links, but it doesn’t have any reference within the legislation to enable it to do that. So, in a technical sense, we’re just making sure that we have within that piece of legislation the legal coverage to undertake audiovisual link hearings.

I do take the member’s point, and I have asked that the coroner’s office does take the likes of cultural issues, sensitivities, into account when deciding whether or not an audiovisual link hearing is appropriate. I guess—and I don’t want to get into the substantive debate, because this is obviously very narrow within the legislation—that there are issues with delays, but making sure that we have the ability to move through some of these hearings in a sensitive way is important, and the use of audiovisual links, where geographical distances might be a problem for some parties to not be at hearings physically, is a way to deal with those issues sensitively, but also make sure we keep momentum in dealing with the cases that are before the coroner at the moment.

I move, That the question be now put.

Kia ora, Thank you, Mr Chair. Mr Chair, I’ve been rising to seek a call all morning, and thank you for accepting my call.

My question is addressing Schedule 6 within clause 3, which is the Coroners Act, but also the Criminal Procedure Act. So my question posed to the Minister in the chair, Kris Faafoi, noting that these are proposed amendments to a COVID-19 Response (Management Measures) Legislation Bill, here we have, Minister, an amendment proposed to the Coroners Act for the use of audiovisual links. I put it—in fact, I invite the Minister to answer the question: is this deemed sufficient purposefully for a COVID-19 response, or is this a bit of a monster mash, bearing in mind we’ve got Halloween on Sunday, where this is a melting pot of a whole lot of convenient instruments and adjustments being made to omnibus bills under the guise, under the mask, under the masquerade, of COVID-19? So my question, Minister, is: yes, audiovisual links are required as a necessity to make more efficient and streamlined, in the interests of justice, the public’s access to justice, but, Minister, really, is this a COVID-19 urgent crisis management measure response?

Before the Minister rises to answer that question, I move now to the Criminal Procedure Act 2011—again a COVID-19 response amendment, this is. Would the Minister please answer and clarify the proposed clause 4 for the insertion of section 68A where a High Court judge may reconsider orders made under section 68 in certain circumstances? What are those certain circumstances? Also, I draw to the Minister’s attention section 68A, which is under clause 4 as the proposed amendment, section 68A(1)(iii), “a jury backlog arising out of particular circumstances (for example, compliance with rules to prevent the spread of COVID-19;)”. Minister, in the drafting of this legislation—and I’m aware that this bill was rushed through under urgency, addressing amendments affecting 16 separate pieces of legislation plus one set of regulations, rushed through under urgency to the Justice Committee for two weeks—two weeks of hearings of submissions only—and here we are before the committee debating the specifics of what are meant to be COVID-19 response amendments.

So, please, Minister, clarity and clarification, because lawyers require specifics. Otherwise, these matters have to be determined by the judge. There is ambiguity, as I have highlighted. What is the difference between certain circumstances and then particular circumstance, for example—and, again, specific reference under, as I said, section 68A(1), clause 4, which outlines the specificity of a COVID-19 response? So before the Minister rises, I’ve highlighted the ambiguity that has been associated with the fact that this has been rushed through, and here we are. Our public requires—our public deserves, and on behalf of the public, we demand—clarity for this COVID-19 response legislation. Halloween is on Sunday—this is a monster mash, Minister.

Well, happy Halloween to that member Harete Hipango for Sunday. Can I thank her for paraphrasing the question that her colleague Joseph Mooney asked earlier in the morning. The measures within the Criminal Procedure Act changes and also the Coroners Act changes are, in essence, to be made—as I mentioned to Nicole McKee in the question that she asked earlier—to make sure that within the legislation we have the ability to undertake an audiovisual link hearing for the Coroners Act, which is already happening as we speak, but does not necessarily have the legislative mandate in order for that to happen. So that is a clarification within law to make sure that that can continue.

As I mentioned to Mr Mooney earlier in the debate this morning, there have been delays with court backlogs and cases, predominantly in the Waikato and Auckland areas. Those members who may be from the legal fraternity from that area will know some of the judiciary that serve the likes of the Waikato and other courts, may also base themselves in Auckland as well. So the ability to move people across the border for cases, both for the representation of people appearing before court or the judiciary, during the lockdown has obviously necessitated changes to court programmes, and cases have been put off.

The changes that the member refers to give the judiciary and the Ministry of Justice the flexibility to make decisions which will be predominantly related to COVID-related backlogs but also in the circumstances that the member talked about. If there’s an issue that needs to be brought before the court with more urgency because of an issue of complexity before the case or for any other issue, the judiciary has the ability and the flexibility to do that.

We want to make sure, as Mr Mooney mentioned earlier this morning, that any backlogs that result from alert level changes that necessitate cases being put off, we can deal with that swiftly, not just because we want to make sure that the backlog is dealt with but there are human beings in the middle of these cases as well that we want to make sure they’ve got certainty, and having some flexibility as to how High Court judges can deal with or bring in cases within their purview may be able to increase the capacity of the throughput of cases in the system. If the member thinks, as she may have been alluding to in her question, that there’s anything more to it than that, then I think she might also be having a few thoughts that don’t match the reality.

I move, That the question be now put.

Point of order, please, Mr Chair. The point of order is that there’s been an allegation or an assertion made by the Minister—as the speaker addressed the House—that I have a distortion of what reality is. I take exception to that, Mr Chair, and would invite the Chair to deem whether that is the case or not.

That’s not a point of order. [Multiple members interject] Order!

Thank you, Mr Chair. Just very quickly, to clarify, to speak to Supplementary Order Paper 80, tabled in the name of David Seymour, Schedule 6. In the explanatory note, I’m sure you can all see, it speaks to the retrospectivity. Just to clarify, and maybe the Minister can shed some light on it, and as an example, clarity in and around—and I’m just going to offer an anecdote here—laws that were historically not in place. Someone catches a fish, and by virtue the law is changed. Is there a prosecutorial reality, contractual obligations, between a tenant and a landlord that what was in place has since changed—is the premise of this legislation that far-reaching? Can he speak with clarity to that, please?

I move, That the question be now put.

I am tempted to accept it. I’m not going to, but I will give the call to Chris Bishop, and I would expect some new material. Thank you.

Thank you very much, Mr Chair. I’m conscious that we are potentially approaching the tail end of this elongated debate. But I thank the Chair’s indulgence, because I do have a very serious question that I want to ventilate for the House, for the Minister, and it’s to do with the retrospectivity in relation to the property law changes in Schedule 6 of the bill.

💬 Hon Member: Didn’t we do this last night and this morning?

Yeah, we did do it last night and this morning, but the reason we did it last night and this morning is that it is a massive change to property law and the House is doing its diligent job in interrogating why the Government wants to make retrospective changes to commercial contracts between tenants and landlords. So, yes, we did spend quite a bit of time on it last night, and yes, we’re spending quite a bit of time on it this morning, but we make no apology for that. I’ll tell you why: because in this party, we believe in the rule of law. In this party, we believe in the sanctity of contract. In this party, we believe that the Parliament should not just go around willy-nilly changing the status quo in contracts retrospectively. We don’t believe that the Parliament should do that without proper interrogation as to why it is doing it.

I come to the issue, which is the bill as it was introduced—new section 245F(2) extended the retrospective application of the amendments to 28 September 2021, so it’s about a month ago. So, OK, that’s a month. That’s not ideal. As I’ve indicated, retrospective law is, in principle, a bad thing. But what we have here now is Supplementary Order Paper (SOP) 78, which, as I pointed out last night, is actually about as big as the Government bill in the first place, and it has to be that big because the select committee didn’t have enough time to do a bar 2 version of the bill. We only had two weeks at the select committee, so now we’ve got this big SOP. The SOP, which is SOP 78—

💬 Hon Member: Zigzag SOP.

—it’s a zigzag SOP—extends the retrospectivity back to 18 August 2021. So, you know, just kind of by the flip of a pen, basically, we’ve gone back another—what’s that, 28 September to—so another five weeks, five and a half, six weeks. Just by the flick of a pen by some drafter in the Parliamentary Counsel Office (PCO)—

💬 Hon Poto Williams: Where’s the new material?

Well, the new material is exactly what I’m talking about, thank you, Minister. The new material is exactly what I’m talking about, and I know Poto Williams can’t get her head around why retrospective law is a bad idea. It’s pretty embarrassing that the police Minister doesn’t understand why retrospective lawmaking is a bad thing, given she’s actually partly responsible for the rule of law in this country. But her performance so far as police Minister has given no indication she’s got her head around those issues.

But we had 28 September, now we’re going back to 18 August. So just with a flick of the pen, with the PCO’s drafting instructions and the drafter’s pen, the law has changed retrospectively by another five weeks. Frankly, the flippancy with which members opposite treat this issue is outrageous. It’s embarrassing. This is not a flippant issue. This is not a frivolous issue. This is not something to just say, “Oh, well, the National Party, you know—ha ha, you guys, you lost and there you are just objecting. Get with the programme, guys.”, which seems to be their attitude. This is a serious issue. Retrospective law is bad. Retrospective criminal law is appalling—and this is not criminal—but retrospective law in the civil context, in the ordinary non-criminal context is also not good, and there has to be a good reason for it.

It was bad enough that it was 28 September 2021. Here we are legislating at the committee of the whole House stage, and the Government wants to bring it back even further to 18 August 2021. I’ve read the submissions to the select committee and I’ve read the commentary of some of the law firms that have made comment about this, and there is a genuine issue in question as to why the retrospective application goes all the way back to 18 August. It’s a legitimate, genuine issue, and we need to know why the original bill said 28 September and the new SOP, or the SOP on the floor of the House, in relation to the amendments, goes all the way back to 18 August. So I want to know from the Minister why we are going back another five weeks. Thank you.

I move, That the question be now put.

Oh, Mr Chair. Whew! Thank you, Mr Chair. It’s great to have a neighbour in the chair—obviously it works. I’ve counted, actually. I’ve done 34 squats and one drop, hold, and cover this morning to get this call. I don’t want to waste the committee’s time—I don’t want to waste the committee’s time. But I want to go back to a point that was raised earlier about discretion.

CHAIRPERSON (Adrian Rurawhe): Sorry. Sorry to interrupt the member. Just want to remind the Minister in the chair, he’s not meant to be interjecting from the chair. [Members groan] Yeah, or commenting while I’m giving a ruling—yeah, same thing.

Thank you, Mr Chair. Great to see discipline. Sorry, Mr Chair. I want to go back to a point that was raised by the Minister earlier with respect to discretion and the very good amendment tabled by the member for Taupō in Louise Upston. In any piece of legislation there are winners and losers. In this case, and this amendment sums it up beautifully, there are losers in this piece of legislation, in that our superannuitants have, effectively, been left out of the legislation. The Minister used the excuse that they were left out on the basis of discretion. He would know from his immigration portfolio that discretion is not widely used by officials, particularly when Ministers give directions it’s not to be used. So that’s the reason for this amendment. Because if, in fact, this amendment becomes law, then it’s very easy to interpret it. But if this amendment is left out of the law and left to the discretion of people, it creates the issue that Penny Simmonds raised earlier, where some people are able to deal with exclusion and are able to question it and get a result, and some people are not. It becomes quite unfair.

We do have a large number of both superannuitants and veterans who have been, effectively, locked out of the system, completely against their own choice. In other words, they have either been overseas at the time of a COVID lockdown or they’ve made the choice to go overseas, quite legitimately, as did thousands of other people. The difference between the thousands of other people and the superannuitants is that the superannuitants, once their time is up, they no longer have access to their entitled income. I think that’s a big challenge for us. I think this amendment specifically talks about amendments to the New Zealand Superannuation and Retirement Income Act 2001, and it only talks about people who are excluded from, effectively, their ability to comply with the law by the Government dictating that the country has locked down and they cannot return to New Zealand.

I think the argument for this amendment to be included in this Act, as it goes through Parliament, is compelling for the reason I just talked about earlier, and that if, in fact, it’s left to the discretion of officials, those officials are all going to make different decisions, because we’ve got to understand that there’s a very large number of people dealing with what is a very large part of our Government operation in the superannuation scheme and the number of superannuitants, some 900,000 of us, that they have to deal with annually. So I think there’s a very strong argument to be made in favour of Louise Upston’s amendment because I think that if we don’t insert something like this in law it leaves all those people at the discretion of officials, and they don’t have the confidence or, necessarily, the ability to deal with that discretion as many younger and more—I was going to say more capable, but they’ll be certainly very capable people, but people who are, I guess, more au fait with modern technology and things like that are.

So I want to ask the Minister, why, in fact, the bill specifically excludes these people, or doesn’t specifically exclude them, why it excludes perfectly law abiding senior citizens when if they were included in the bill it would enable them—they’d be effectively protected. I don’t for a minute think we’re asking for anything other than protection for these superannuitants on the basis of them being excluded from New Zealand for the reason of the COVID lockdown. So I think it would be reasonable for the Minister to answer that question. I know he did address this topic a bit earlier, but I don’t accept that discretion is the best method to deal with this issue under.

I move, That the question be now put.

The question is that the Minister’s amendment to clause 3 set out on Supplementary Order Paper 78 be agreed to.

The question is that the Minister’s amendments to Schedule 1 set out on Supplementary Order Paper 78 be agreed to.

The question is that Andrew Bayly’s amendment to insert new Schedule 1A set out on Supplementary Order Paper 77 be agreed to.

The question is that the Hon Louise Upston’s tabled amendment to insert new Schedule 1A be agreed to.

Amendment not agreed to.

The question is that Chris Penk’s tabled amendment to insert new Schedule 1A be agreed to.

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

The question is that the Minister’s amendments to Schedule 4 set out on Supplementary Order Paper 78 be agreed to.

The question is that the Minister’s amendments to Schedule 5 set out on Supplementary Order Paper 78 be agreed to.

The question is that the Hon Julie Anne Genter’s amendments to Schedule 5 set out on Supplementary Paper 70 be agreed to.

The question is that the Minister’s amendments to Schedule 6 set out on Supplementary Order Paper 78 be agreed to.

Amendments agreed to.

The question is that Golriz Ghahraman’s amendment to insert new Part 2A in Schedule 6 set out on Supplementary Order Paper 69 be agreed to.

Chlöe Swarbrick’s amendment to clause 9 of Schedule 6 set out on Supplementary Order Paper 73 is out of order as being the same in substance as a previous amendment in Supplementary Order Paper 78 agreed by the committee. Chlöe Swarbrick’s amendment to clause 9 of Schedule 6 set out on Supplementary Order Paper 74 is out of order as being inconsistent with the previous decision of the committee. Andrew Bayly’s amendment to delete Part 4 of Schedule 6 set out on Supplementary Order Paper 77 is out of order as being inconsistent with a previous decision of the committee. David Seymour’s amendment to delete Part 4 of Schedule 6 set out on Supplementary Order Paper 80 is out of order as being inconsistent with a previous decision of the committee.

The question is that the Minister’s amendments to Schedule 7 set out on Supplementary Order Paper 78 be agreed to.

The question is that the Minister’s amendment deleting Schedule 8 set out on Supplementary Order Paper 78 be agreed to.

I will report this bill with amendment.

House resumed.

Mr Speaker, the committee has considered the COVID-19 Response (Management Measures) Legislation Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.