Screen Industry Workers Bill

Members, we come now to Part 4. This is the debate on clauses 57 to 65 and Schedules 4, “Dispute resolution, challenges, reviews, penalties, and offences”. The question is that Part 4 stand part.

Part 4 of the bill is a relatively discreet function, and, really, it does what it says on the tin: it focuses on dispute resolution, challenges, reviews, penalties, and offences. So we’re moving away from the court processes of bargaining now, to what happens if parties need support in terms of their employment relationships.

Two changes to draw the committee’s attention to: one which is proposed by the select committee in its report back is a change to ensure that there is no longer a requirement that the parties have acted in good faith before they’re able to receive facilitation. That was, effectively, about not having a perverse outcome, whereby an act of bad faith by one or the other parties could prevent staircasing towards that form of dispute resolution. And, secondly, in the Supplementary Order Paper, there is a clarification that, when an agreement is fixed by the authority, it is treated as signed and ratified for the purposes of the bill so that there can be no doubt about that matter. Once again, I’m happy to answer any question relating to this part.

Two initial points: this is not a dispute—we’re going to go after nomenclature—and, secondly, I don’t think the Minister’s Supplementary Order Papers (SOPs) are minor. Look, they’re not substantial—making sure I’m on the right SOP. There’s quite a number of changes in Part 4. I don’t think they’re to be disputed, but, yes, it’s some substantial changes.

Look, it’s probably quite easy, again, for the legal beagles to reply to, but it’s twofold. Firstly, in clause 56, we’re now talking about “persons”. Earlier on in the legislation, we’ve been talking about “individuals” and, very kindly, the Minister or his officials noted to me about individuals in earlier parts actually being “natural persons”—always useful to know—but now we’re talking about “persons” in clause 56. I just want to be really, really clear, and I can see two doctoral legal beagles over there on the other side just getting fired up with excitement between—exactly, I can even see thumbs up between “persons” and “individuals” and “natural persons”. I just want to get absolute clarity on that.

Then, to not dispute, let’s move on to clause 57, where we are referencing the “chief executive”, which is jolly decent. But the chief executive is there. I’m assuming the chief executive is in reference to the Employment Relations Authority, but why I raise it, Minister, is that—first and foremost—it is not abundantly clear, particularly when one jumps back into the interpretation. It is quite important that we get this very clear, because the chief executive, according to the interpretation, means the “chief executive of the department”. Then we carry on and find that, actually, the Minister’s SOP has removed the definition of “department”.

Now, I’m not a legal eagle—I’m a philosopher, and, actually, a politician, which is possibly a weird mix—but, long and short, who is the chief executive? And has the Minister crossed every “t” and dotted every “i”—what’s known as a “tittle”, just for those people who are into linguistic and English interest. So I am being a bit flippant, but, actually, it’s a serious point: I just want to know, through officials, that we’ve got this absolutely right. First and foremost, with clause 56, is a “person” also an “individual”? And ipso facto is the “individual” a “natural person”? And then, with clause 57, is it absolutely clear through the way that this has been structured—or do we need to make a quick fix?—that the chief executive is that of the authority, at which point we need a very quick change to clause 10 of Interpretations to say “ ‘chief executive’ means the ‘chief executive of the authority’ ”.

I think I can assist with these two matters. In respect of clause 56, “persons” includes individuals and groups who are covered by the legislation, including bargaining parties. In respect of clause 57, “chief executive” refers to the chief executive of the Ministry of Business, Innovation and Employment (MBIE). It’s MBIE who is responsible for the provision of mediation services.

Thank you. Simon Watts was probably a better choice but at least it’s a Simon! Look, it’s just to be absolutely clear, Minister, is that now clear in the bill? I may have missed something but I don’t think to this point—as I’ve read it and I’ll be honest, I’m not going to flick through all 82 pages. But is it clear in the legislation that “chief executive” means the chief executive of the Ministry of Business, Innovation and Employment (MBIE), because that’s no longer there. Particularly if I have seen it correctly in your Supplementary Order Paper 234, departments being struck out. So is he able, or his officials, to point us as a committee of the whole House to be clear? Because I’m very, very happy—I want to be abundantly clear—very happy that it should be MBIE, but just want to make sure that we’ve got that correct.

Thank you very much, Madam Chair. As we work our way through this bill, I want to move—and it’s actually related to a question that I asked earlier in regards to penalties, and the Minister acknowledged that section 4 would be the point in which the bill would cover this detail. So I’ve been waiting here in anticipation for the moment to be able to get into the questions around penalties and get a little bit of clarity on that.

So, specifically, what we we’re looking at is under Part 4, clause 63(3)(a) and (b). We’ve got two penalties there: one in regards to the individual and the other in regards to a body corporate.

One, looking for a little bit of guidance from the Minister in terms of the setting of those penalties, what was the consideration and practice around how he came up with the $10,000 and subsequently $20,000? Is that deemed reasonable in the context of what’s going on here? Is there precedent in terms of where that has been baselined?

In regards to 63(3)(b), just clarifying there in terms of the use of “body corporate”—just making sure, seeking clarification, that that is the right legal construct that we want to be referring to in regards to that? Because it’s reasonably specific and I’m just wanting to get some clarity around why we’ve specifically referred to “body corporate” there versus other legal structures that may be deemed more appropriate or broader than that term. So 63(3)(a) and (b).

Thank you, Madam Chair. I just—on Simon O’Connor’s behalf, actually—want to thank the Minister for his answer that the chief executive of the department is the chief executive of the Ministry of Business, Innovation and Employment (MBIE). That’s great; we get that—that’s certainly the Minister’s intent. The question is where that is in the bill.

The reason Mr O’Connor asked that is because in Government Supplementary Order Paper 234, on page 11, the definition of “department” has been removed. So if you go to the original bill as brought back by the committee, it says the chief executive is “the chief executive of the department.” And in the definition of “department”, it means “the department of State that, with the authority of the Prime Minister, is responsible for the administration of this Act.” That’s great, but that definition got taken out.

So where in the bill do the breadcrumbs lead back to MBIE? That’s all we need to work on.

Thank you. Happy to answer a couple of those remaining questions that are there.

In respect to the question asked by Mr O’Connor and then followed up on by Mr Woodhouse, what’s happened here is that the Legislation Act now ensures that when we refer to a “department” within a piece of legislation, that automatically means the department who is responsible for the administration of the bill. So the department responsible of the administration of this bill is the Ministry of Business, Innovation and Employment (MBIE). So whenever “department” is referred to within this piece of legislation, it refers to MBIE on those grounds.

In respect of Mr Watts’ questions about the level of the penalties in 63(3), they pretty much come across from the Employment Relations Authority penalty regimes for similar breaches. So we’ve tried to keep a level of consistency across the employment relations framework there, and the use of the word “body corporate” is just to ensure that we are capturing organisations—that the $10,000 and $20,000 split is effectively a split between individuals and organisations.

Can I thank the Minister, particularly in relation to the whole “who’s responsible?” I guess the question is, how do we know, and perhaps it’s a privilege—to use a Green Party word; perhaps we’re privileged to know, on this side of the House—but how does the ordinary New Zealander know which department is responsible? And, please, Minister, I’m not trying to belabour this. I think, quite genuinely, if someone wants to understand and know, where are they to be directed? Is there something explicit on the Ministry of Business, Innovation and Employment website? Where do we find this? So I just welcome a little bit of clarification if you could.

When the legislation is published on the legislation website, the Parliamentary Counsel Office will identify the responsible department.

I wasn’t going to take a call on this bill, but I am intrigued by this little exchange towards the latter stages. I mean, I’ve got to say, it’s a fairly unintended consequence, I would have thought, of the Legislation Act, which—I think I’m right in saying that I sat on the Regulations Review Committee to oversee the passage, or at least some of the passage of it.

💬 Simon O’Connor: Who’s the chair of that committee?

The chair is Chris Penk. He may wish to—

💬 Chris Penk: I think it was me.

Oh, it was you—I’ll blame you for it—but he may wish to proffer a view. But it’s a genuine point, which is: is it now the position that the administering department can be updated by the machinery of government, and that, essentially, just has the effect of updating the Act?

So the Act says it’s the chief executive and it’s left open as to who the chief executive is, and then the administering department changes from—I don’t know. In this case, it’s the Ministry of Business, Innovation and Employment (MBIE), but, for argument’s sake, it could be the Department of Internal Affairs (DIA), which seems to end up with the ephemera and pot-pourri of other random stuff that departments don’t want. I’m not having a go at DIA—they do a good job—but it’s sort of a catch-all department. So let’s say, for argument’s sake, that DIA want to be that administering department. The effect of that decision being made is that the Act just sort of auto-updates to the chief executive of the DIA being the chief executive, and I’m not sure that’s a wholly satisfactory outcome of the Legislation Act. I mean, the first point is that Parliament is not actually authorising that change. It’s just being done by ministerial or at least administrative fiat, so there’s been a transfer of power away from the legislature. So that’s the first point.

The second point is—and I accept it’s not the world’s most significant point, but it is an important point, which is a rule of law point, which is that people should have the ability to quickly work out who the right chief executive is that they’re talking about, and to read a piece of legislation and understand it.

There’ll be quite a few people, I reckon, who would read it and go, “Oh yeah, the chief executive.”, and the “chief executive” of so and so is littered throughout the statute book now, and they’ll read it and go, “the chief executive of MBIE”, “the chief executive of DIA”, “the chief executive of”—whatever, and they’ll say, “OK, that’s fair enough. That’s all good. I understand. That’s fine.” Well, now you have to know to read the legislation and go, “Oh yeah, the chief executive. Ah, right—that’s right. Parliament, in its infinite wisdom three years ago, decided that the way to work out who the chief executive is that you have to go down to the very bottom of the Act and work out who the responsible agency is, and—oh, that’s right. That’s who it is.”

I mean, I probably knew three years ago, but I’d forgotten that we’d authorised that. So I’d be willing to put this to the committee: very few MPs in Parliament know that that’s the case, so how many slightly more laypeople out there in the public domain know that that’s the case. I would hazard a guess that it’s very few.

So, look, is it the world’s biggest issue? No. Is it an important one? Yes. I think there are some rule of law concerns around that.

Anyway, I wasn’t planning on taking a call, but I feel better having got it off my chest. My colleague Chris Penk, who actually knows far more about this than I do, may wish to—oh, he’s shaking his head. No. OK—anyway. So the Minister may want to proffer a comment, but thank you, Madam Chair.

Look, briefly, I do agree with my colleague across the Chamber that it is an interesting point, but it is an interesting point in the context of the Legislation Act, rather than this one. I’ve checked it. “Department” is defined, and all the legislation in section 13 of the Legislation Act is the agency responsible for administering the Act. So those indeed are the provisions of the Legislation Act. That is what is being applied here. It is, I think, a very good question perhaps to raise with the Attorney-General or the Regulations Review Committee to give some consideration to, but it’s not one that I can change here.

I move, That the question be now put.

The question is that the Minister’s tabled amendments to Supplementary Order Paper 234 amending clause 59B be agreed to.

The question is that the Minister’s amendments to Part 4 set out on Supplementary Order Paper 234 as amended be agreed to.