COVID-19 Response (Management Measures) Legislation Bill

Point of order, Mr Speaker. I seek leave to present a legislative statement on the COVID-19 Response (Management Measures) Legislation Bill. By way of explanation, normally they have to be presented by, I think, 11 o’clock in the morning, but the bill was still going through its committee stage at that point.

💬 SPEAKER: Leave has been sought for that course of action. Is there any objection? There is none.

I move that the COVID-19 Response (Management Measures) Legislation Bill be now read—

💬 SPEAKER: No, no—sorry. I then have to say that the legislative statement is published under the authority of the House and can be found on the Parliament website.

Thank you, Mr Speaker. I move, That the COVID-19 Response (Management Measures) Legislation Bill be now read a third time.

New Zealand’s been dealing with the challenges posed by COVID-19 for over a year and a half now; in fact, we’ll be heading in very shortly to two years of dealing with COVID-19 and the disruption that it causes. COVID-19 has wrought a huge amount of disruption around the world, and New Zealand has actually been reasonably fortunate in that we’ve experienced less disruption than many of the other countries that we usually compare ourselves to when it comes to international measures. We’ve had fewer days of restrictions than many other countries, we have had an overall better economic response to COVID-19 than many other countries, and, of course, our public health response has stood head and shoulders above those of many other countries, and I think New Zealanders can rightly be proud of that. But the restrictions that are put in place around COVID-19 do, from time to time, create significant challenges that make it difficult for New Zealanders—for individuals, for companies, and others—to comply with rules and laws as they exist. This bill, the COVID-19 Response (Management Measures) Legislation Bill, deals with many of those challenges, and I’ll highlight a few examples. Many of the changes here are non-controversial.

So, for example, if we think about the changes to the Gambling Act to allow class 3 operators to offer lottery tickets by email or phone and to accept payments online and to issue those tickets electronically, this provision’s being extended for three years, recognising that the way those tickets were previously sold hasn’t been possible, often, in the COVID-19 environment. Organisations like Coastguard New Zealand and the Heart Foundation that rely on the sale of those lottery tickets for their bread and butter—in order to continue to exist, they needed a provision to be able to continue to raise money, to continue to fund-raise, for that really vital community work that they do, even when they can’t sell tickets face to face, as they have been doing previously. So those sorts of changes make a great deal of sense.

Greater use of the High Court can be made to ease the backlog in District Courts. Court rules can be more easily modified to respond to the circumstances of COVID-19. The coroners can hold hearings remotely. These are pragmatic decisions that recognise that we can’t necessarily meet face to face when we’re dealing with outbreaks of COVID-19 and when we have restrictions in place, but we still need some of those essential public services to be able to function.

Other provisions help with administration such as the extension of statutory deadlines, the ability to use electronic signatures, and the ability to serve electronically infringement and reminder notices under the Land Transport Act. These things all make a difference and allow New Zealand to continue to function while we deal with a global pandemic.

I do want to thank all of those who have been involved in putting this legislation together. It has had a longish gestation period, but, of course, it particularly responds to the most recent outbreak that we are dealing with in Auckland. So our thanks to all the Ministers and all the officials who have worked through that, and a particular acknowledgment to the Finance and Expenditure Committee, who considered the bill under a tight time frame and reported it back to the House.

Just to pick up two issues that provoked the most attention. The provisions around commercial contracts: this bill offers respite to businesses under pressure because of the restrictions that have been imposed by higher alert levels. It supports a process through which commercial tenants and landlords can reach agreement about lowering the rent while businesses are operating under restrictions or if they’ve closed down completely. I want to emphasise here that many, many landlords and many tenants have already agreed to these sorts of provisions. A number of refinements were made during the committee stage, such as ensuring that the lessee being unable to gain access to the property should be taken into account, and the resulting rent reductions will apply from the start of the current Delta outbreak in August.

The bill also looks after the interests of residential tenants. Amendments are being made to the Residential Tenancies Act to enable tenants to stay in their rental homes during COVID-19 alert level periods where people are not allowed to move houses. So it helps to stop the spread of the virus in that way, and it allows people to comply with any restrictions that might be put in place. The amendments also may make it clear what notice periods apply after the termination restrictions are lifted. Refinements made at the committee stage include creating a penalty for the issuing of a termination notice that a landlord is not entitled to issue.

Finally, there were some provisions around the Local Government Act and local government elections that do warrant mentioning. When the bill was first being put together, we were planning, we were considering, we had contingency that we were putting in place for if we were still dealing with COVID-19 response next year, as we have had to do over the last two years. It’s now become apparent as we continue to progress our response that with higher rates of vaccination, we will be in a position to manage COVID-19 cases and COVID-19 outbreaks differently to the way we’ve managed them before. It’s, therefore, the Government’s view that the existing provisions within the Local Government Act should be sufficient in the event that there does need to be any shift in local government elections.

Having said that, we always have to be mindful that the situation can change. We could find ourselves dealing with a breakthrough variant, for example, that’s resistant to vaccines. In that case, we would come back to the House if we needed to have any further legislative provisions to enable us to deal with that, so we don’t think that the local government provisions are necessary at this point. That’s why, during the committee stage, the Government put forward a Supplementary Order Paper that removed those provisions.

So, overall, this is a good bill that deals with many, many pragmatic issues that help people to deal with the impacts of restrictions flowing from COVID-19, and I commend it to the House.

The question is that the motion be agreed to.

Well, it’s been an interesting 24 or 36 hours dealing with this omnibus piece of legislation. It seems like only a few hours ago that we were dealing with the committee stage, and, of course, that is true—it was only a few hours ago, as I now look at the clock. I think that’s a reflection of the speed with which this has gone through the Parliament, a speed with which I would take issue.

Now, I’m not opposed to omnibus pieces of legislation wholesale, obviously, because sometimes you do need, as a legislative body, to make a whole lot of changes to a bunch of different pieces of legislation all at the same time. But, generally, it’s a good idea to do that in a thorough and comprehensive way, and, unfortunately, when it comes to this piece of legislation, that was not the case: just a couple of weeks at select committee, sent to the Finance and Expenditure Committee—a slightly odd committee to send it to. In fairness to the Government, it’s not at all clear what committee was the right one because, of course, it is an omnibus piece of legislation, but the Finance and Expenditure Committee is good enough, I suppose.

💬 Dr Duncan Webb: Oh, thank you.

The chair sometimes comes under a little bit of heat from this side of the House, but it’s got the heavy hitters from the National Opposition on it, and so we accept the finance committee—

💬 Anna Lorck: Really—where? Oh, who’s that?

Well, don’t get me started on Anna Lorck’s contributions, which are so famous they’ve made their way to other members of other committees, like myself on the Health Committee. But word of your exploits on the finance committee, Ms Lorck, precede you, my friend—don’t worry about that.

Anyway, the finance committee looked at the bill and, as an example of how little time there was for the committee to consider the bill, they didn’t send back a bar 2 bill; they sent back a bar 1. So all of the changes that had to be made, which we just made a few hours ago, had to be made by dint of a Supplementary Order Paper (SOP) that the Government put on the floor of the House, and the SOP’s as long as the bill, so that’s never a great sign. I’ve seen that happen before—in fact, I think it happened in the last Government that I was a backbencher in—and it was never a great sign when the Minister turned up with some massive SOP, going, “Oh, I just need to make the changes at the committee stage”. It’s evidence, normally, that something has gone a little bit awry, and, in this case, evidence of a rushed process.

So that’s the first point I want to make—that the process was wrong—and, actually, the Government had more than enough time to get its ducks in a row on some of these changes well before now. Most of them are uncontroversial. The changes to Department of Internal Affairs legislation to do with charities—I mean, no one’s going to object to that. It’s all very sensible. I would describe it as rats and mice—just stuff that’s very eminently sensible, but it deserves a good going over.

But there are two particular things that the National Party objected to, and you might remember, Mr Speaker, in the first reading we said, “Look, it’s a tough one, but on balance we’ll send it to committee to kick it around a bit.”, but we’re really concerned about the local electoral changes and the property law changes, which were retrospective in effect. It got sent to the committee, and the good news is we’ve had a partial victory. It’s a happy day, actually, over this side, because the changes we’ve been pushing for in relation to managed isolation and quarantine (MIQ)—we’ve had a partial victory on that, because seven days is now going to be the norm for MIQ. That’s good. That’s good for double-vaccinated travellers coming home to New Zealand, and we’ve been pushing for that for some weeks, so that’s good news.

The other thing is that the Government has given up when it comes to giving themselves the power to delay local elections into—I was going to say into eternity. It wasn’t quite that bad; it was at least for the next year after an election. The Government gave up on that idea, so that’s good news.

But it’s very unclear, and we’re still actually yet to find out, how this happened in the first place. We’ve just had reference to it from the Minister in his third reading speech. It actually begs more questions than gives answers, because he said that under the old strategy, the elimination strategy—this is the strategy that the Government put all of their eggs in the basket on and has now given up on—the Government had to retain the power to delay local body elections. OK, maybe that’s true, although, frankly, I doubt it, because local body elections are done using postal voting, and if anyone’s been to a local body candidates’ meeting recently, it would be fair to say they don’t enjoy widespread turnouts from the community.

However—however—I’m willing to make a prediction: the local body elections next year, that are now definitely going to be held next year because of three waters, are going to enjoy record turnouts, and I can tell Labour members opposite that the councils and the Government’s representatives in those councils are going to endure some heat from ratepayers. I haven’t been around politics too long—seven years as an MP—but this issue has the potential to be a real powder keg; in fact, it already is. I think we’re up to 68,000 signatures on the taxpayers’ petition, I think we’ve got 55,000 on our petition, and you just have to look at the front page of the Wairarapa Times-Age this morning. Gee, Kieran McAnulty—I like him; he’s a good guy. But if I was him, I’d be very worried.

Anyway, I digress. The point is we could have had local body elections even under very straitened scenarios, and we did not see the case, on this side of the House, for a very broad, sweeping power that the Government was seeking to give itself. We asked why that was the case, and a lot of people asked why it was the case, and to give credit to Minister Chris Hipkins—who, despite the back and forth from this side of the House, and in the spirit of a Thursday afternoon, I will say, generally, is a competent Minister. To be fair to Chris Hipkins, he’s recognised that—

💬 Hon Member: Compliments coming thick and fast.

Well, it’s very rare, actually, that you see a Minister who says, “Oh, actually, I got that wrong.” I mean, how often do you see that? Normally, with the Labour Government, it’s black is blue and white is red, and all the rest of it—they just never accept they were wrong. But, in fairness to Chris Hipkins, he turned up here last night at the committee of the whole House stage, and he said, “Yep, we had an elimination strategy; now we don’t. We thought we needed the power to delay local body elections, and now we don’t, so we’ve removed it from the bill.” I mean, that is a good thing to do. I give credit to him.

It’s very rare that you see that, and, actually, the last time I can remember a Government Minister doing that through an SOP at the committee of the whole House stage was actually the Hon Simon Power, in 2009, who sat there and watched. I think it was something to do with the remote sittings of courts, or something—audiovisual equipment—he sat there and listened to the debate and said, “Well, actually, that’s right.”, and he turned up and he just removed it from the bill. It’s very rare, so I give credit to Chris Hipkins.

Anyway, that’s enough of being nice. Let me talk about the really stupid part of the bill, and that is the property law changes, because that’s the reason we’re opposing the bill on this side of the House. We had an extended back and forth with the Minister in the chair, Kris Faafoi, today in the committee stage, and I think it would be fair to say he doesn’t really understand what the bill does, which is worrying, for the Minister of Justice, and he can’t really explain what it does beyond that he thinks it might make a difference at the margins. Maybe that’s true, and there’s probably a marginal group of people for whom it will make some sort of difference. I think that the solution outlined by Andrew Bayly, National’s shadow Treasurer, is far more preferable, and I suspect he’s going to talk about that in his contribution.

So maybe it will make a difference at the margins, but here’s what it comes at the cost of—and this is a really important point. Yes, maybe there’s a couple of people who will benefit from it, but I tell you who’ll be the long-term loser from the provision, and that’s the people of New Zealand more generally, and that’s the legal environment within which we operate, because Governments should not just go around legislating to overturn contracts retrospectively. I just emphasise for the House: retrospective law is bad—I can’t believe I’m having to kind of spell it out. Retrospective law is terrible. Criminal law is the worst, but retrospective law is, generally, bad. Laws that interfere in the sanctity of contracts are bad. They’re bad because they undermine the principle of legal certainty and they undermine the rule of law and they make it hard for people to make decisions in a legal context, knowing that those decisions might not be overturned by the legislature later. That is central to a market economy.

Now, I know some members opposite have expressed misgivings about the whole nature of a market economy, but at the moment that’s what we have, and it’s not changing any time soon, thankfully. But we need to have a market economy based on the principles of the rule of law, and the reason the National Party is opposing this legislation now that we’ve got rid of the stupid provision around local election law is, essentially, wholly because of the changes to the Property Law Act. It is misguided legislation, it is ill-conceived, it is unprincipled, and it is wrong, and for those reasons we will oppose it. Thank you, Mr Speaker.

Kia ora. Thank you, Mr Speaker. Just a couple of comments, really. I’m perplexed by Mr Bishop, who seems to think there’s no precedent in the law for looking back and adjusting contractual arrangements in the light of extreme circumstances. It’s worth just remembering that in the Contract and Commercial Law Act 2017, there is already—which had, in fact, been there for a long time, in the Frustrated Contracts Act 2008—a provision that says that when it’s impossible to perform a contract—I’ll read it: “the court may, if it considers it just to do so having regard to all the circumstances, allow the party to retain or recover the whole or any part of the money that was paid or [is] payable.” So there you go; you have it.

All this clause does is say that in commercial leases where it’s impossible to perform—where the landlord cannot provide free access in quiet enjoyment to the premises—then the parties are the first to put their heads together and try and sort it out, but, if not, they can go and get it arbitrated. Nothing surprising about this at all. The parties never turned their mind when they created a lease to a global pandemic. What we are doing here is saying, “Well, look, don’t worry. We’ll think about that for you. We think the appropriate thing to do is, in all the circumstances, take everything into account and arrive at a just and reasonable resolution where an appropriate amount is paid. Nothing surprising there—common sense, good business. I commend it to the House.

Well, it’s a pleasure to be talking in the third reading of the COVID-19 Response (Management Measures) Legislation Bill. I want to talk about Schedule 6, rental arrangements. Here we are 18 months later from when COVID first hit New Zealand, and the Government is finally acting—finally acting—in a speedy manner. Then, of course, who’s front-footing it? That dynamic and energetic Minister Kris Faafoi. He’s the one leading the charge on this.

I think we just need to put it in context. Earlier, I asked the Minister of Finance about what’s happening with industry and how many businesses we’ve lost. We’ve lost just over 9,500 businesses in the last month, and that’s up 140 percent—140 percent—in the three months to July. We are starting to see absolute devastation in our small businesses in places like Auckland and the Waikato. This is not something that we’re sleepwalking along to. This is happening now, and this is the worst thing about this: this is the same idea that the previous Government talked about introducing under the Hon Andrew Little—the same proposition—and New Zealand First ruled it out, and they ruled it out for good reason. It will not work. It is not the right thing to do.

This morning, in the committee of the whole House, we saw a Minister who really does not understand business. He talked about revenue, and that’s the test that has been put into this bill, but the real issue, as we tried to point out to him, is it’s about cash when you are a small business. “Do I have enough cash to pay my rent? Do I have enough cash to pay my wages?”—and that’s the problem.

In Auckland, we’re now, what, into the 11th week, going into the 12th week tomorrow, in one of the longest lockdowns that that city has been in. Compared to all the other cities in the world, Auckland is now touching one of the places that has been in the longest lockdown, and no one plans, in their right mind, to have a Government tell them, “You cannot trade for 26 weeks.” No one can envisage that.

Now, some people are lucky because they have other resources, but in our plan that we announced last week, I did a case on a hairdresser. She was lucky because her landlord had done the right thing and given her a 50 percent discount on the rent. She was lucky, and I’ve got to acknowledge there have been many, many generous landlords, but I can tell you that if she hadn’t had that write-off of that rent, she would have lost $100,000. That was $100,000—she was telling me how she’s borrowing against her house to try and keep her staff on her pay book so that they had a job when ultimately, at some time in the future, they can come back to work. That’s the real reality of what’s going on.

This piece of legislation that will come into force today will mean that if you’ve got a dispute and if you’ve been having a dispute between the landlord and the tenant, then you are having a dispute. This piece of legislation’s not going to change it. The only thing that this legislation requires is that if you want to take the matter up, the other party—it might be the lessee, it might be the lessor—has to respond within 10 days. Yeah, well, they might respond, but they might respond with the same response they gave last time: “Naff off!” There’s no obligation to actually deal.

Then they use this weird and wonderful term called “fair proportion”, and there is no real substance to that new proposition other than talking about revenue drop. Not even a criterion about what might be a sufficient revenue drop. So if you have a 25 percent revenue drop, do you get a 25 percent reduction in your rent—well, do you?

💬 Hon Member: Who knows?

Who knows? There’s no clear bounds around it, and that is the issue with this definition—that is the issue. You’re already in disputing parties, and just because they have to respond to each other within 10 days doesn’t actually make it any better.

So then they talked about arbitration. Well, at least when Andrew Little tried to introduce it last term, they did put some money towards arbitration disputes, because these are the type of businesses that are going to crash in the next few weeks. Even the increased resurgence payment doesn’t come into effect. You can’t even apply for it until three weeks after Grant Robertson made the announcement. In those three weeks, we’re going to see more small businesses go to the wall, and, here we are, we’ve got this clause. “Oh, let’s go and I’ll write you a nice letter.”, you get a grumpy letter back from the other party saying, “Naff off!” OK, what’s your choice? “Oh well, maybe we’ll go to mediation, or maybe let’s go to arbitration.” Well, guess what! Did Minister Faafoi talk about a sped-up arbitration process? No.

Did he talk about financial support to those parties like the small businesses who don’t have any more cash to take the proceedings, because if anyone’s had anything to do with arbitration, it actually costs money. And, by the way, you’ve got to prepare your case, and that’s at a time when small-business owners, the mums and dads and their key staff, are all incredibly stressed—absolutely stressed to the max. “Where am I going to get my money tomorrow to pay my wages?”

No one else is getting a free ride on this, and I hear Dr Duncan Webb scoffing. I tell you what, I’ve just come back from Auckland. I came down last week. I can tell you that every day in my electorate—every day—I got, on average, a hundred calls from concerned constituents. Many of them were related to small-business owners—every day, without fail, a hundred people contacting me, either by phone or email, asking for help during this lockdown. Unfortunately, most people down in this area haven’t seen that degree of pressure, mental stress, and this is the one remaining aspect that should have been dealt with by our Government and it should have been dealt with back last year. But here we are, 18 months later, and you finally front up with this bill that will not help. Where’s the cash? Well, the cash—this is the socialisation of the cost of a Government-imposed lockdown, where the Labour Government is saying to landlords, “You’re all wealthy. You can do it. You should pay for it. You pick up the tab.”

Well, actually, it’s a Labour Government - imposed lockdown as a result of a poor, slow roll-out of the vaccine and poor managed isolation and quarantine facilities. Nothing to do with a small-business owner, a hairdresser, or those types of people who’ve gone about doing all the right stuff. Many of them are double vaccinated now, and yet here we are with a piece of legislation that doesn’t help them one iota, because most people will not have the time, the money, or even the mental capacity to take on their landlord, if they have to, and go to arbitration. That’s why, when they put up the 40 million bucks last time for the arbitration, no one took it up—no one took it up. So here we are.

This is an insensitive piece of legislation. This shows a Government that does not understand small business. I am really, really concerned, and I just think it’s that lack of care and real understanding about how small businesses operate. The mums and dads and their key staff, and they’re all families. They’re not workers and things like that in this esoteric concept; they’re people that get on with each other, who work together—families—and they’re all going broke. A lot of them are going broke: 9,500.

I’ll be interested to see how many go broke next month, and I’ll tell you what, what’s going to happen is that most of them are hoping they can get through to Christmas. Most of them are hoping that the Government’s going to open up the country, hoping they’re going to get a Christmas where they can get a bit of money in, but in the middle of January, they’ve going to pay their first round of provisional tax, then they’ve got to pay more in March, and then in April, that’s when the road will hit, because those companies will fall over because they don’t have cash.

What the Government should have done is the support payment that we put forward two months ago and given these people cash to get them through the process. And only now the resurgence payment—oh, it’s going to happen in two weeks’ time, when they, finally, can make their first application. That will be a month after the announcement.

It’s such a waste of people’s lives. That’s the most damaging thing about this bill—I’m ashamed.

The one thing that Andrew Bayly got right in his speech was the need for cash flow for small business, and what this bill does is it provides that cash flow through providing a fair proportion of rent. I do not understand how the National Party can sit there on one hand and say that they want to support business, they want to support people through this really difficult time—especially businesses in Auckland—and, at the same time, take away what rent relief might be available to them through the changes to the Property Law Act.

This is not anti-landlord. This is about getting fair rent and about being able to imply into contracts the assumptions that were not considered by either party when they went into the contract because the situation was so unforeseeable. How many businesses knew that the law would require them not to be in business? Many, many of them did not, and they are the ones who came to us at select committee and said, “Please, can you make this meaningful for us, and not only can you give us rent relief but backdate it so that it goes back to a meaningful date of the beginning of the lockdown, so that the legislation is not a toothless tiger?” All credit to our Minister for listening to the select committee and introducing the Supplementary Order Paper and listening to the many, many small businesses and businesses in New Zealand that operate on thin margins, and saying, “Yes, we will backdate it because these circumstances are so unusual that the law justifies us in doing it.”

This is not disregard or the flick of a pen, as Mr Bishop would have had you believe in the committee stage. This has been a very considered process by a hard-working select committee who have listened to what retailers want, who have listened to what hospitality want, who want to be fair to landlords and to tenants, and who, like every other New Zealander, I’m sure, want us, the team of 5 million, to get through this together, to be able to see Christmas together, and to be able to keep our businesses operating. That is what the property law amendment schedule does, and I commend this to the House.

Tēnā koe, Mr Speaker. Tēnā koutou e te Whare. The Green Party is supporting the legislation. On balance, we think that most of the proposals are sensible and carry on with a pretty good approach to managing COVID—I mean, very good last year. Obviously, in recent times, the approach has slightly changed and the Green Party has put out our own position statement on COVID response, one that we think would ensure that we are protecting our communities and the health of our people, and really upholding that the most vulnerable people need to be at the forefront of our mind during a global pandemic.

We are happy at one change in particular that the Government picked up. My colleague Chlöe Swarbrick put forward two amendments around the commercial tenancies provisions, and one was that it would be backdated to the beginning of the current outbreak in August 2021, which the Government did pick up. We would have liked to see the Government go further and backdate it to March 2020 so that the initial lockdown and any others—there’s been a few level 3 lockdowns in Auckland over the past year—could be considered as well.

We also are disappointed that the Government didn’t choose to just go ahead and move on ensuring that New Zealanders residing overseas have their voting rights protected during this time, when they’ve had a significantly reduced ability to return to New Zealand. I know the Minister has said they’re open to hearing from the Justice Committee about it. I’m really pleased that, I believe, the ACT Party and the National Party both voted in favour of that amendment, which is a really good sign that there could be across the House a consensus that we need to change this law so that we’re not disenfranchising New Zealanders who probably will have a constrained ability to return home for some time. Even after we’ve reduced the need for managed isolation, there will still be reduced capacity in air travel and much higher prices for air travel, and not everybody can afford to travel all the way back to New Zealand, but that doesn’t mean that they aren’t New Zealand citizens who are very engaged and passionate and care about the future of this country and want to be able to exercise their democratic right to vote in local government and central government elections.

Finally, we were disappointed that the Government didn’t go further and reintroduce the rent freeze during level 3 and level 4. It’s been an incredibly long lockdown for people in Auckland, and this is following intense increases in rent prices that have happened over the past year. We think that, ultimately, the changes to the Residential Tenancies Act have not gone far enough to protect renters, and particularly in this period where we’re trying to catch up on providing additional supply to meet need and demand for housing, it’s really important that the Government is doing everything it can to protect people’s right to secure, affordable housing, and a rental freeze at the very least during a level 3 or level 4 lockdown would be reasonable. I know the Minister spoke to this and said that people can go look at flats at level 3, but, really, is that something we want to be encouraging people to do?

We’re still in a situation of constrained housing supply. In fact, emergency housing and transitional housing have been at the—our failure to house all of our people here in Aotearoa New Zealand has been a major factor in the spread of the virus that we’re currently seeing in Auckland. So I think, as a society, we’d all be better off if we sorted this out.

Rent freeze and rent controls are simple tools that can ensure that people are able to afford rent and that they don’t have to constantly be moving around or getting shifted out of housing into transitional housing, into emergency housing, into their cars—wherever they may be. All of that makes it harder for us to manage the virus, and so, obviously, we would like to see the Government go much further in those areas and we will continue to champion that.

Just one last point about the kind of absolutely inconsistent position of National, where they’re complaining about the Government having too much debt and then promising to spend more money on things. It really doesn’t make much sense, because here they are, they’re saying, “Oh, we should be building purpose-built MIQ facilities. We should be massively investing in the health system.”—I completely agree. Increasing the ICU beds—yes. Increasing the staff—yes. All of those things require Government funds and Government funds are reliant to some extent on taxation, and we’d like to see progressive taxation, and to say that it’s socialising the losses—no. Actually, what they’re advocating is, precisely, privatising the benefits and socialising the losses of this pandemic, but I guess it’s not surprising that their position is so incoherent. They don’t know if they support vaccine certificates or not. I mean, it’s really interesting. I guess they have a lot of people in their caucus who have different opinions about things and, ultimately, they don’t have a coherent vision for a society in New Zealand where we can provide the basics to everyone, where we can ensure that people live good lives, where we’re providing social services, and we’re allowing for people to do the things that matter most to them, because, ultimately, their ideology and the best interests—

💬 DEPUTY SPEAKER: The member needs to come back to the bill. It’s not a general speech.

I understand what you’re saying, Mr Speaker, and I was just trying to point out the philosophical inconsistencies in some of the arguments we’ve heard from the other side of the House, which I think is worth raising in the debate because those arguments have been raised in the debate. But when it comes to the bill, we’re disappointed the Government didn’t go further in some of these areas to look after our people. But we are supporting the bill.

Thank you, Mr Speaker. I rise today in opposition to the COVID-19 Response (Management Measures) Legislation Bill. I do so, on behalf of the ACT Party, for two main reasons: firstly, because of the actual content of the bill, and, secondly, because of the process that it’s gone through.

This bill in particular shows the real reason why Parliament needs the ACT Party. Only one month ago, the Government brought this bill to the House and only ACT was the only party to vote against it. Only ACT was the party that said that we cannot possibly support this based on our principles, and that’s because the ACT Party stands firmly in favour of having a country where we know that our laws are reliable, where we know what our laws actually say on any given day, and where we have the rule of law upheld—where we know that we have property rights and we know what those rights are. This bill violates that.

We are proud to constantly stand opposed to this bill. We need more people in Parliament who are consistent on their principles that rushing law through Parliament is the wrong thing to do, and especially that rushing through retrospective legislation that interferes with private contracts is the wrong thing to do. I’m glad that our friends over here in the National Party have come on board, but it would have been great to have them alongside us in that first reading. I’m glad they’ve come on board, though.

This bill—not all of it is bad. It does actually point to a few things that are common-sense changes. There are a range of initiatives here that we actually have no problem with, and that’s because they adequately look at the situation a lot of New Zealanders faced themselves under lockdown. It’s really hard to do some of the most basic tasks under a lockdown. If you think of a few examples, one is the Heart Foundation’s fundraisers, which they can’t do in person, and so there needed to be some changes to be able to enable them to do those online, and I think that’s a good change to make. The second example was the High Court. We’re changing some of the rules around the courts to ensure that some of the workload could be shifted from the District Court to the High Court, and I think that’s a good thing to do. Another was some changes to e-signatures. Those are some common-sense changes.

Well, just this morning we had the committee of the whole House—doesn’t feel that long ago because it’s not—and that’s what’s happening when you have rushed law. But we saw some massive changes go through. As Chris Bishop pointed out before, they were pretty much the same size as the original bill—the number of changes that were put forward by the Minister in charge of this legislation—and I think that shows why it’s so wrong to rush through laws, because you can get so much wrong if you’re rushing it through Parliament.

But I’m very glad to see that one of the amendments that was put forward is a removal of a provision that was in the original bill which would have delayed the local body elections, and I just have to question why that was even in there. Does anybody from the Labour Party know why that was in there? Complete silence. No one—none at all—and it’s because, potentially, this Government is just too addicted to power. It just started to put so many things into an omnibus bill. It thought, “Here’s a great chance. Maybe one day this is something that we’d like to get through.” But, alas, the ACT Party was there to point out that it should never have been there in the first place, and we are glad to show them that it was wrong and that it should have been removed.

That’s what happens when you have too much power with a majority Government who wants to rush through legislation, and it shows the importance of having an Opposition with principles that’s willing to stand up for New Zealanders’ rights. They just cannot justify why that was there in the original bill.

The main reason why we oppose this bill is because of the property law changes that were set out in it. Normally, when you pass a law in New Zealand, you can’t be done for it if you broke the law in the past. This says that that sort of principle doesn’t matter. What the Government is now saying is that it doesn’t matter when you signed a commercial lease contract, the law says that there’s now a new law. It doesn’t matter what you agreed to in the past, there’s now a new law and you just have to follow the law that we’ve currently just done. It’s called retrospective legislation, and it’s a dangerous precedent to set in the New Zealand Parliament. What the Government is saying is that “You think that your rights are secure, but now we’re telling you that they’re not.”, and the ACT Party believes in the rule of law and we believe that that should be upheld.

The second part that we opposed was the rushed law, and that’s because we believe in due process. So, for context for anybody watching, usually a law has a six-month select committee process. This was done within a few weeks. We had a shortened select committee, which meant that people who would be affected by this law didn’t have the time to make a submission to the select committee. They didn’t have the time to read through all of the impacts that this law—all of the different changes that were put in this one law—could have on their lives to make an acceptable viewpoint stated in a select committee process. I think people should be allowed to voice their views in Parliament but also have the time to be even able to articulate that.

There was also no regulatory impact statement because it was rushed through so fast. That’s another problem. We didn’t have the basic checks and balances of what were the costs, what were the benefits—how do we weigh up the costs versus the benefits? That’s never a good way to make a law if you can’t do that.

So, in summary, the ACT Party opposes this flawed piece of legislation because of the way it was passed through Parliament without due process and because of the property law changes. Thank you, Mr Speaker.

Thank you, Mr Speaker. I rise as an active member of the Finance and Expenditure Committee and I also rise as a business owner, a small-business owner. There’s been a lot of talk in the House today about how hard it is for small business. What this bill does is support small businesses when they’re faced with the real struggle of having to pay rent when they can’t get into the building.

I look back on COVID-19, when it first hit, and I was a business with a landlord that immediately dropped the rent by half. There were many businesses in Hawke’s Bay where that happened, and those businesses and those landlords and tenants did that, without exception. What we are talking about today is those businesses with landlords and tenancies that do not have an agreement, who cannot work together to make it fair and reasonable. This is what the difference is in this bill that will absolutely matter to helping small businesses get through the hard times that they face, especially in Auckland right now.

I would also like to acknowledge the hard work of my select committee colleague Helen White, who cannot be in the House today but who has contributed enormously to helping with this legislation, zooming into the meetings and listening to the contributions that have been made by submitters. That is one of the things that’s been really tough for people during this lockdown. But it’s important that we work together and it’s important that when we do need to move through legislation that can have an immediate impact, an important impact that we’ve heard about today from businesses. That’s why I support and commend this bill to the House.

This is a split call. Joseph Mooney—five minutes.

I rise on behalf of the National Party to oppose this bill. The history of this bill is worth repeating to some degree in the brief time that will take. It was introduced with less than 24 hours’ notice to Parliament on 28 September and had its first reading the next day, on 29 September, under urgency.

The National Party, I’m glad to say—Mr Chris Bishop, in particular—raised a critical point about the Local Electoral Act, pointing out that it was going to give the Government the ability to roll over the local elections for the better part of two years. We heard a description from Chris Hipkins yesterday about why they had done that. He said that at the time, a couple of months ago, there was an elimination strategy and the Government needed to have that power. But the National Party raised this issue, and one thing I can give the Government credit for is that they scrapped it. They didn’t give us a good reason for why they scrapped it; they just said that things were different to a couple of months ago.

Well, yes, things are different. Auckland’s been in lockdown for 12 weeks. Local businesses haven’t been able to operate for 12 weeks. People have been stuck at home. The South Island has been at level 2. National Party members from the South Island wrote to the Government and asked for the rationale and the reasoning behind it.

💬 Maureen Pugh: Got an answer?

We haven’t. Maureen Pugh says, “Have we got an answer?” The answer is no, we have not had an answer. The Government has been obfuscating and you might ask the question why. That’s a very good question—a very good question—that I think we may have got some illumination from the media yesterday, who ran a story saying that the Government only began planning for the Delta outbreak in late July, just weeks before the virus escaped managed isolation and quarantine in August.

So what was the Government doing all this time? It’s not as if it was a surprise that Delta was circulating around the world; in fact, we’d been given warning in June. A gentleman from Sydney had come to Wellington, spent the weekend having a lovely time in Wellington going to some great cafes, I understand, and other places, and, as a result, Wellington was locked down and it went into level 2. So the Government had fair warning, but it wasn’t until the next month—late July—that the Government started planning, and this goes to this COVID-19 Response (Management Measures) Legislation Bill, which is a misnomer, because the COVID-19 response was completely lacking in respect of Delta from this Government.

That’s why they rushed through a change to delay the local body elections, despite them being postal voting, and then had to get rid of it yesterday. Well, it’s not in the bill that we’re voting on this afternoon. It just shows the haphazard nature that the Government has taken and the lack of planning that the Government has had in respect of this bill, in respect of planning for Delta, and in respect of managing Delta. They’re just making it up as they go along. It’s not good enough, and it was illustrative in the Supplementary Order Paper, which was as big as the bill. I looked through what we’re looking at this afternoon to vote on, and it’s filled with zigzags—crossed out. It’s just a huge amount that’s been crossed out.

So the Government rushed in a change on 28 September, then they’ve gone and rushed this through under urgency, and then rushed it through again yesterday evening and today in committee stage and haven’t answered a number of significant, important questions. We are now voting on a bill that is substantially different from what was initially proposed, and there hasn’t been a good reason given for why that is.

This is emblematic of other things that the Government is doing, like with the three waters. I’m sure members opposite have had a number of emails coming into their inboxes from unhappy constituents who are asking “What on earth is the Government doing?” It’s just rushing stuff through without consulting with its communities properly. The Government needs to take a step back and actually think about listening to its electorate.

There’s another matter in this bill, the Criminal Procedure Act. I asked Minister Kris Faafoi about the jury backlogs that are building in the Waikato and Auckland districts, and he couldn’t give me those numbers. I mean, that’s a pretty important thing. I asked one of my colleagues and friends in Auckland, and he said, “Well, look, the trials are being put out to 2023 now, yet none of them can go ahead under level 3, so who knows how long that’s going to take?” I would suggest that the Minister probably needs to get that information, and maybe we’ll have some better law coming before the House than this bill that we have before us this afternoon.

Before I call Greg O’Connor, is this part of a split call?

💬 Dr Duncan Webb: No.

OK. Greg O’Connor—10 minutes.

Thank you, Mr Speaker. One thing I think everyone in this House, and probably everyone in New Zealand, will agree is that this COVID-19 pandemic will change the way the world and New Zealand works. I think it’ll be something that historians in the future will look back on in the same way we look on the plague in Europe, perhaps the wars—events that had a considerable impact on the way the world works. When students in New Zealand in perhaps 50 or 100 years’ time are looking for somewhere as evidence—almost a time capsule of this time—they will look at a bill, this bill, because right in the middle of this pandemic, it really looks at all those factors that influence lives of ordinary New Zealanders. What this piece of legislation does is it ensures that life can go on and life will go on better for the provisions that go through, even if it’s something as small as being able to do mail raffles, or electronic raffles, so that our charities can keep going.

Also, historically, I think there will be those who have businesses that will survive because they will be enabled through rent relief to continue to exist. I think Mr Bayly probably gave us the best example of why this is good legislation, particularly that which relates to rents, because he talked about the hairdresser who, because she was able to negotiate a 50 percent reduction in her rent, will survive. Now, Mr Bayly was at the select committee where we heard from a gentleman who runs an Airbnb in Auckland. Not only did his landlord not discuss or reduce his rent but they actually increased it. Not only is that gentleman looking at losing his business; he’s also looking at losing his home because he has personal guarantees. That’s the personal face of this.

So, look at this legislation. See it as an enabler to enable large numbers in New Zealand to continue to exist at a time during a pandemic that history will show will vastly and significantly change the way in which New Zealanders and many around the world live their lives. For that reason, I commend this to the House.

I stand in opposition to the COVID-19 Response (Management Measures) Legislation Bill.

Now, in this Parliament we often have debates on bills where the matters at stake are practical. They are about mechanisms and details were our work is almost workmanlike in the sense that we are making small corrections to improve the way that things happen. It was that expectation that National brought to this bill at first reading, where we believed that it would contain a series of measures that would practically address some of the issues that arise during the heightened public health response in a pandemic.

So we took to that role in good faith, but what we found in this bill was not a small, mechanical issue. It’s not just a small, practical matter that we have an issue of disagreement on. It is a fundamental breach of the very principle of contract law and the way in which the State enters a private contract, and it is for that reason—that matter of very important principle—that National must oppose this legislation.

Let me tell you what it actually does. What it does is it sets an implied clause in commercial leases retrospectively. So for commercial leases that exist between a landlord and their tenant in a private contract which the landlord and the tenant, the two parties in the contract, have agreed to, have studied, and have signed up to, this bill allows the hand of the State to reach into that contract retrospectively and alter the terms of that contract. Now, we on this side of the House find this a very serious matter because, actually, commerce in this country and commerce throughout the world operates on the basis that people can settle on private contracts between parties, that they can do so within the legislative framework, and that they can conduct business accordingly.

It is a very serious step for the Government to decide that it will retrospectively go back in time and enter the hand of the State to alter the terms of a contract agreed between two parties. We on this side of the House take issue with that, not only in this specific instance—to which I will come—but we take issue with it because of the precedent it sets and the chilling effect we think it has on business, on endeavour, and on enterprise, and the chilling effect it has in terms of people’s certainty under contract law when the Government shows a willingness to retrospectively go and alter the terms of contract. We stand proudly in defence of the sanctity of private contract.

So what does it actually do? The hand of the State enters to set this implied clause in commercial leases to require a rent adjustment where a tenant can’t gain access to their premises to do business. It then requires that where this is the case, a rent adjustment is required for a “fair proportion of the rent”. Of course, the bill creates a whole new box of uncertainty because “fair proportion of the rent” is not defined, and as anyone will appreciate, what that is is as long as a piece of string. It depends utterly on the circumstances of the parties who are affected. So there is no end to dispute promised by this bill, but simply the opening of doors into more dispute, and the bill specifically provides that any dispute must then be referred for arbitration, unless parties can agree to mediation or contract. It makes a grand assumption that the State is better placed to decide how the parties to a contract resolve their difficulties than those parties are themselves, and we take issue with that.

Given the matters of principle at stake, it was very fair for the House to have asked—and this did occur during the select committee process and it did occur during the readings of this bill—well, what’s been the analysis of why this change should be required and why is this the option that the Government has landed on. Various speakers have raised this Act, and it is well-known in the public realm that the Government did consider a change of this sort last year during lockdown. It considered it, it looked at it, and there was a very strong response at that time by another governing party and by members of the New Zealand public, who warned the Government that taking such a step would be chilling and wrong.

So now we ask ourselves what has changed this year. Has there been new analysis brought to bear? Has there been a more detailed cost-benefit assessment? Has there been a better understanding of the regulatory nuance of this? Has there been new information brought to bear upon this decision? I regret to inform this House that that is absolutely not the case. This decision has been made in a vacuum in which the Minister has, essentially, put his finger in the air and said, “I think it feels like a good idea.’, and I give you proof of that.

The first thing is this: there has been no regulatory impact analysis of this provision in the bill, and it is an absolutely standard procedure that where a matter like this happens in a bill, we give the good officials of our Government the opportunity to analyse the regulatory impact it will have. We had none on the Table for this change, and I would venture that if we were to have such analysis on the Table, it would say, “Minister, Minister, Minister, think not just of the impacts this will have for those in current lease arrangements, but think of the impact this will have across broader society in terms of people’s willingness to enter these contracts in the future and the terms on which they do them.”

But the second thing we know is that there has been no cost-benefit analysis of this change. Well, why is that? The Ministry of Justice have been very candid about why that analysis has not occurred, and they have said that it couldn’t actually occur because the size and the scale of the problem this change seeks to remedy is not known. No one actually knows the size and the scale of the problem that the Minister has decided is so significant that he is prepared to enter the hand of the State into a private contract retrospectively, but the Ministry of Justice can’t even assess the size nor the scale of the problem. It is based on media reports, they say.

The third piece of information we have about the context in which this decision has been made is that we’ve had a very small mention of the fact that the Ministry of Foreign Affairs and Trade had been asked for their input in order to consider New Zealand’s international obligations as they relate to this change. I do ask that members of the House, and particularly those of the governing party, reflect upon that—that we are in this House debating a change to our law that is so significant in terms of the precedent it sets and in terms of the message it sends that the Ministry of Foreign Affairs and Trade has had to be asked how it affects our international obligations.

I put it to you that the reason they have been asked, in my opinion, is because it is well understood that when we trade with other countries and when we do business with other countries, they look to us to see whether we have good rule of law, they look to us to see whether we uphold private contract, and they look to us to see whether the State appropriately separates itself out from commercial endeavours. Would it be any wonder if someone wanting to do business with New Zealand in the future would look twice now if they knew of this provision, because what it shows is a willingness by this Government to insert itself into the private contractual affairs of independent businesses, and that is very concerning indeed. It shows a willingness to do things that are undermining a very significant principle, which we take significant issue with.

Yes, there are absolutely landlords and tenants in very difficult situations in New Zealand right now, and that is why National has put forward a constructive policy which would allow them to get rent relief without undermining the sanctity of private contract. We oppose this bill.

Kia ora e te Māngai o te Whare. I rise to take a brief call on this bill, which is designed to respond to the emergency circumstances in which we now live.

There are two sorts of people in an emergency, and it kind of sorts the two out into two piles. There’s the ones who catastrophise, run in circles, can’t come up with a coherent plan, and generally blame everyone else while demanding certainty in inherently uncertain circumstances, and then there are those who look at the situation and make the pragmatic decisions necessary—the ordinary, boring, pragmatic decisions—that mean society can keep functioning in difficult times. It’s pretty clear that the people on this side of the House are the latter sort of people.

We are making sensible decisions here that will enable ordinary Kiwis to continue with their lives. We are making ordinary decisions to enable commercial tenants to continue to operate and have short-term, emergency measures to enable them to deal with the very few landlords who are unreasonable. We are enabling residential tenants to deal with the very few of their landlords who might want to terminate tenancies in the middle of lockdown in level 4. We are enabling courts to continue to operate. We are enabling the police force to continue to operate fines and simple, simple, straightforward ordinary things that may not be glamorous. It may not enable one to shout loudly and claim “Disaster!” and that the sky is falling, but, by my God, it does enable New Zealand to keep working in an emergency pandemic situation, and I firmly commend it to the House.