Severe Weather Emergency RECOVERY Legislation Bill

Members, the House is in committee on the Severe Weather Emergency Recovery Legislation Bill. Part 1 is the debate on clauses 3 to 6 and the preliminary provisions in Schedule 1. The question is that Part 1 stand part.

Point of order. I seek leave for all provisions to be taken as one question.

Are there any objections to this? There is none. The question is that Parts 1 to 4, Schedules 1 and 2, and clauses 1 and 2 stand part.

Just a brief call, really, first to acknowledge the Minister in the chair, the Hon Kieran McAnulty, but also to acknowledge the very hard-working members of his team—I suppose they’re not his team, really; they’re our team—behind him, who, I think, did a pretty amazing job in a difficult environment, putting together a bill that has been discussed in the second reading; whilst, to some people, relatively contentious, none the less absolutely necessary, and my view is that a vote against this bill is, effectively, a vote against those people who have been significantly affected by the events of the couple of cyclones that went through the country.

Chris Penk, who’s our spokesperson in this area, has put together a number of Supplementary Order Papers (SOPs) relating to the bill, which clearly were discussed—almost all these issues. In fact, all the issues in the SOPs were discussed at various stages during the select committee, and they’ve turned up in the form of SOPs here today, and I guess they’re probably—and I’m not speaking for the other parties—in all cases that I can see, issues that you might have liked to include in this bill in an ideal world. This isn’t an ideal world, and I think, if we ask anyone who’s affected by the events of these cyclones, their ideal world won’t return for quite some time. To quote Gerry Brownlee—and a number of other speakers from earlier, actually—in the debate on the second reading, the things that this Act allows will not directly impact their lives for quite some time, but none the less they will impact them, and I think it’s very positive.

So I guess, from my perspective—I don’t intend to keep the Minister answering questions for ever—there are a number of SOPs in the name of Chris Penk on the Table today, and one or two of them tests things that we discussed quite significantly at the select committee stage. I wonder whether the Minister might like to comment just briefly on the “necessary or desirable” test, which was discussed, I think, by almost every party in the course of those discussions in the select committee. I think that’s an interesting point for the Minister just to elaborate very quickly on. As I said, Mr Penk has put a number of other SOPs in the process today, one requiring the Auditor-General’s written opinion, and that might be an issue that’s worth discussing as well.

So, Madam Chair, that’s just a very brief comment from me on this and a couple of questions for the Minister if he wishes to answer them.

Thank you very much, and I’d like to acknowledge the member Ian McKelvie and thank him very much for this comments, and indeed his acknowledgment of the work that has been put in by officials and those that work here in the select committee. He’s dead right that what this Parliament has asked of them over the last few days has been extraordinary, and they have delivered at every step. So good on him for acknowledging that, and I echo that sentiment.

In regard to his comments specifically to Supplementary Order Papers 335 and 336, I’m more than happy to do a brief comment on that. But, before I do that, I just want to reassure him that we looked at every Supplementary Order Paper (SOP) in great detail and, where we were comfortable and where we were able to, we have tried to incorporate that into the Government’s SOP. In the areas where we haven’t, it doesn’t necessarily mean that we disagree, either. It’s just that, when we looked into it, the advice was that what the SOPs were suggesting could be done by the bill as it stands. So we tried to be as collaborative as the National Party has been through this.

But, in regards to Supplementary Order Paper 335, proposing that “necessary or desirable” is replaced with “in accordance with the purposes of this Act”, we did look into this. So “necessary and desirable” is the appropriate threshold for making orders under the Act, and “in accordance with the purposes” is, in essence, the same as “necessary or desirable”. But, to get to the point, we’ve been advised that there are over 200 statutes that use the “necessary or desirable” test, and, on that basis, we were comfortable to keep it in the bill.

In regards to Supplementary Order Paper 336, which proposes that the Attorney-General must assess whether Orders in Council are consistent with the New Zealand Bill of Rights Act—the Attorney-General must provide this assessment in writing—this would, essentially, create a pressure point as Orders in Council are developed. The Minister can determine the appropriate individuals and organisations to engage with, including whether advice should be sought from the Attorney-General. This amendment, therefore, we didn’t think was justified, but, again, we appreciate the fact—as you could tell; there was a range of them—all of them were constructive, and all of them were a genuine attempt to try and improve the bill in the point of view of the member.

Can I also acknowledge officials who’ve done a lot of work on the bill and recognise that the Green Party’s concern is with the “trust us” approach to Government agencies. It’s certainly not to senior managers and individuals within those organisations; it is the principal issue of the executive and Government agencies having a lot of power under this bill.

One of the many things that was very helpful in the departmental report was that there is a list attached, as Appendix 3, of the Acts that have been included in the Schedule and a very summary reason of why they have been included. There were a number of submitters who were really concerned with the Climate Change Response Act 2002 being one of the Acts that could be overridden by an Order in Council, but the officials made it clear that there may be an Order in Council here around extending the deadlines for participants to submit notices in their emissions returns under the emissions trading scheme (ETS) because there are over 300,000 hectares of forest in the affected regions in the ETS.

But Supplementary Order Paper 341 in my name—given the very broad purposes that clause 3 has, the Green Party’s wanting to provide for climate change resilience, because this is not core in the purpose at the moment. There’s a reference to resilience, but not in relation to adaptation and not in relation to the investment priorities for the recovery, and I would be interested in the Minister’s response, as he’s said it wasn’t justified to include a reference to the New Zealand Bill of Rights Act but didn’t give reasons. It would be of some assistance if he could explain whether the Government also sees it not being justified to include a more specific reference to provide in clause 3(1)(a) for climate change - resilient planning, rebuilding, and recovery—explain why that is. Because given these events, climate change and our broken climate contributed to them, and we are, as others have noted, going to experience more of them, why won’t the Government allow a greater focus on ensuring that the rebuilding and the recovery is climate resilient and is really adapting to the reality we face with the broken climate?

Thank you, Madam Chair. I thank the member Eugenie Sage for her contribution and her constructive contributions throughout this process thus far. While the Government didn’t feel the need to include this, it doesn’t mean that the Government disagrees with what the member is saying. Of course what she’s outlining is vitally important, but under clause 3(1)(a)(iv) of the bill it does provide that one of the bill’s purposes is facilitating the restoration and resilience of the environment. In our view, we felt that that covered the intent of what the member was outlining. Of course climate change is a hugely important factor in this; that’s what’s driving the severity of these weather events and that’s what’s driving the frequency of them. And it touches on many of the concerns that were raised by members in their second reading speeches. There’s no denying that. But for the purpose of what the member’s hoping to achieve, we were confident that as it stands that covered that intent.

Oh, thank you, Madam Chair. Minister, there were a number of different options available to the Government at the time this legislation was developed. A few weeks ago, another piece of severe weather legislation was brought to the House which made specific amendments to the Resource Management Act, to the Local Government Act, and to the Food Act, for example. At the time, I questioned you and officials who came to select committee on that bill about why we weren’t doing more to make the Resource Management Act more flexible, why we couldn’t do more to make, say, the Land Transport Act more flexible so that local councils or Waka Kotahi could use the money that they’re currently forced to use for walking and cycling and instead reallocate it to roads, bridges, and improving resilience.

We were told to expect another bill to come which would solve a lot of those problems, and yet what we have is a smoke-and-mirrors bill, Minister, which says, “Look, Ministers can amend by Order in Council any one of 27 Acts, and they can do anything the Minister wants it to do.” It turned out that when the good old engineers and planners from Waka Kotahi New Zealand Transport Agency came to the Governance and Administration Committee last week, they said, “Oh, that’s what we want to do, Simon. We want to be able to move money around from bucket to bucket. We need some changes made to the Land Transport Act and to the Land Transport Management Act.”, and councils said, “We want to do the same. We need some changes to the Local Government Act.”

So why on earth, Minister, weren’t those specific changes to legislation, that could’ve enabled councils and the roading agency responsible for administering taxpayer- and ratepayer-funded budgets enabled, then? Instead, we’ve got this bill, and now we still have to wait weeks, no doubt, for an Order in Council to be generated, which may well do just that but which could’ve been done already.

Well, on the one hand, in his second reading speech, the member criticised the process for happening too quickly, and then at the end of his speech he said the Government should just get on with it, so I’m struggling to understand what the member’s position is.

Right throughout, there’s been politicisation of this to try and make various points. At the first bill, that very member identified one area that we all agree needs to happen, and we pointed out in response that this bill will enable it to happen, and it will. So, ultimately, we must remember—he’s referred to it as a smoke-and-mirrors bill. This bill is based on the Hurunui/Kaikōura legislation, which the ACT Party voted for, and I do wonder if that’s because at that time they had an arrangement with the Government and this time they’re in Opposition. I think that sort of behaviour for something so serious reflects very poorly on the party.

Look, I just want to clear it up for people watching at home and for the Minister and for everyone in this House: the ACT Party is not seeking to politicise this. What we’re asking for is for urgent and specific action that gives confidence to those people who are seeking to recover.

So I just want to speak to a Supplementary Order Paper that ACT has tabled, which talks about actually putting a time limit on the Orders in Council that the Minister—this Minister of Local Government, or a Minister for a Resource Management Act, or another Minister who might be responsible for transport. It says if they want to create an order, it needs to be approved by the House of Representatives within a certain amount of time or it becomes revoked. That was a check; that was a balance that the Government proposed when it came to the COVID-19 recovery legislation. This text here is cut and paste from the Government’s own COVID-19 recovery legislation, which included provision that every 90 days or so, that legislation was brought back to the House so that if the Government wanted to make any changes, they could table it, we could debate it—then the Government used its majority to pass it. If Opposition parties had any suggestions as to how the response could be improved, it could be debated and the Government might—as the Minister has acknowledged—take up some suggestions from submitters at select committee or from other members on the select committee, and make some changes. But that’s not what the Government’s chosen to do.

What they’ve chosen to do is to give themselves “Henry VIII” powers to change up to 27 pieces of legislation for up to five years, and to give a minimum of three days’ notice to a review panel that these changes, these orders are necessary. And so what ACT is asking—and Minister, I’d just like you to explain why there is no time-limiting clause which would limit the relevant period that these orders are valid for, the longer of which would be 10 sitting days of the House after the order was made; 60 days after the date the order was made as an alternate; or any other period that the Minister might want to specify in the legislation. That wouldn’t stop the order from operating. It wouldn’t undermine any instructions or actions taken when the order was in force. But what it would do is provide a check, provide a balance from Parliament and from elected members who could scrutinise the order; the actions of the Government; what are the costs and benefits; is it doing what it said it would; and actually give New Zealanders some confidence that this Government’s directions, instructions, orders, and actions are working.

I thank the member. Again, this bill is based on that which was passed by Parliament after the Hurunui/Kaikōura earthquake. This bill’s checks and balances have been significantly strengthened since then, and through the select committee process there’s been further improvements. The ACT Party was happy to vote for the bill then, and so they should feel comfortable that, given the strengthened checks and balances, this bill will ensure through the parliamentary process that those Orders in Council will get adequate scrutiny. But I would point out that a significant problem with this Supplementary Order Paper is that there’s likely to be very large infrastructure projects which will take a very long time to complete, and having a provision that requires it to be continually coming back to the House will ultimately undermine certainty in those projects; that’s likely to undermine the level of investment that we might be able to attract, or indeed those companies that wish to seek the contracts to deliver that work. Uncertainty in these sorts of things slows things down—the very thing that the ACT Party is urging us not to do.

I’d just like to draw the Minister for Emergency Management’s attention to the Supplementary Order Paper (SOP) 345, clause 7A(4), where the concern he raises that if an Order in Council was to expire or be automatically revoked, that would undermine the ability of the Government to engage in, say, contracts or with contractors or on projects that lasted a long period of time. That, absolutely, is not the case. What 7A(4) provides for—it says quite clearly that revocation of the order does not undermine or affect the validity of any action taken to give effect to that order while it’s in place. So, Minister, the ACT Party—a party of practical people; I’m an engineer—are thinking about this kind of thing. We believe that this SOP provides not only a check and a balance on the use of the Order in Council powers, which we accept are necessary at times—that’s how secondary legislation is made; that’s how national environmental standards are proposed—but there is a check and a balance, and there’s also enough flexibility for the Government to engage in contracting. So, Minister, would you just please acknowledge that is in fact a feature of this SOP?

There’s not really a question there, Madam Chair. I mean, it’s turning into a debating point now. I’ve addressed the member’s question initially. I was referring to the Supplementary Order Paper (SOP) in question. We clearly have a different view. The Government doesn’t feel that what’s proposed in the SOP is necessary. And I thank for the member for the detailed explanation, but there wasn’t really a question there.

Thank you, Madam Chair. I just want to query with the Minister—and this is a specific inclusion in Schedule 2; the piece of legislation in question is the Immigration Act 2009. I would like to know what advice the Minister has received from, say, the Minister of Immigration or from Cabinet or officials around the reason for including the Immigration Act. The reason I ask that is because the Minister of Immigration has immense powers in the immigration space; in terms of visa creation, change of rules—he can basically do whatever he likes in immigration instructions, and very seldom needs to actually amend the Immigration Act itself. So I’d like to allow the Minister to talk about that, because the broader issue here is that if somehow this Act was included almost by mistake, or just for the sake of it, then that creates a few sort of confidence issues with other pieces of legislation that might be in Schedule 2. So that would be quite good to hear the Minister’s thoughts on this.

The whole point of this legislation is to make the recovery happen as smooth and quickly as possible, and to make sure that there isn’t inflexible barriers in front of things preventing the recovery to happen. In order for the recovery to occur across each of the regions that have been affected by the severe weather event, we are likely to require labour force in order to perform that—we saw that in Christchurch, and to a slightly lesser degree, but not insignificantly, in Kaikōura. What we don’t want is for something to come up that would require an adjustment to immigration rules to meet the demand. By not including it, we have then found that we have hit a barrier that we didn’t anticipate. I would much rather include it and find that it’s not required, than not include it and find that it is required and we stall things unnecessarily.

Well, just in response to that, notwithstanding everything the Minister just said about labour shortages and needing to get people—the point of the question is that the entire immigration system can be changed to meet those needs and instructions, so you don’t actually need to amend the Act. So the question remains: why is the Act there at all?

I’ve already answered that.

Minister, we’ve heard a lot about managed retreat. People of West Auckland, where I live, have been flooded out of their homes, some on more than one occasion, and most recently on the weekend of 26-27 January, flooded out of their homes, terrified, and are still out of their homes, many of which are red-stickered. It’s quite clear that they live in an area which is subject to flooding, extreme natural hazards, and it’s unsafe for them to return to their homes.

What many people are seeking is a formula for some type of compensation, if that’s available, so that should they not be able to return to their homes or rebuild on their land, they will receive compensation so they can move on and get on with their lives. This is becoming even more urgent as children and their families are not able to find accommodation next to the local school or where they would normally do their afterschool sports activities. You’ve got entire communities at Muriwai and Pīhā who are cut off or still living behind traffic management and barriers who can’t resume their lives because in many cases they don’t know what is going to happen.

What the ACT Party would like to do is to see this bill provide a lot more confidence for people that if the Government intends to take their land, because a Government agency believes that it’s unsafe for them to reoccupy that land, they receive adequate compensation. And what ACT is proposing in Supplementary Order Paper (SOP) 346 is to insert a new clause 7A, which refers to Part 5 of the Public Works Act, and that basically ensures that if private property is taken or damaged—I mean, sometimes you might have to track a digger over someone’s land in order to fix something—the existing provisions of the Public Works Act and the formulas in there would entitle these landowners for compensation to be paid. So, Minister, would you give a view on ACT’s proposal that the Public Works Act form the basis of compensation for land taken, including for managed retreat, which potentially may come under an order created by this Act, Minister?

The Public Works Act sets a model for determining how compensation is set for compulsorily acquired property based on current market value. Properties that have been damaged would be subject to current market value with the damage, not their pre-damage value. Supporting this SOP reduces the ability of the Government to decide on a bespoke compensation scheme in it and choices about how the valuation of the property is dealt with.

Minister, the reason the ACT Party proposes that the Public Works Act, Part 5, is applied is because that is a well-understood basis to assess the taking or the damage of private land by the Government for what are no doubt legitimate purposes, and that gives people confidence. There is case law around that. There is a way for people to identify what they should be entitled to. It’s when the New Zealand Transport Agency needs to take the front of the farmer’s yard and use that to widen the road.

Anyone can look at formula and say, “Yes, we agree that that’s how much we should be paid.” What the Minister has just stated quite clearly is that the Government is coming up with a different formula. So, Minister, will that formula be consulted on? When will we know about it?

When will the people of Hawke’s Bay who have been threatened that they won’t be able to return to their properties because they’re too unsafe, the people of Muriwai and Pīhā, and the people of Waimoko Glen in Swanson in West Auckland—when will they know what this formula is, because they’ve been quite clear what they want. They want to be compensated for their land at a value that allows for them to move on and go and restart their lives in a place where it’s safe to rebuild. Minister, will you tell us a bit more about this formula?

💬 Hon Dr Duncan Webb: Madam Chair.

Apologies to the Hon Duncan Webb. The member Simon Court did not accurately reflect what I said, so I’ll read it out to him again: supporting this Supplementary Order Paper (SOP) reduces the ability of the Government to decide on a bespoke compensation scheme in it, and choices about how the valuation of the property is dealt with. That doesn’t signal that something is coming; what it signals is that if the Government did decide to, they would be restricted in their choices if they adopted this SOP.

I move, That the question be now put.

I just want to ask the Minister: would he consider including a person on the review panel who has experience with the delivery of infrastructure?

The Government is going to pass—no doubt, create—many Orders in Council, which involves officials from Government departments coming up with a list of legislation that needs to be modified or a set of rules that need to be developed, and that’s to change bits of primary legislation. It could be the Land Transport Act, it could be the Local Government Act.

But on the review panel of up to 12 people who will review these Orders in Council—could be in as little as three days they’ll have to review them—the Minister hasn’t provided for anybody with experience in the delivery of infrastructure. Yet the Minister has himself said here in the House this afternoon, that the Government expects to be undertaking very, very large-scale infrastructure projects as part of the recovery.

Minister, would you care to explain why you haven’t included a person with delivery of infrastructure or that skill on the panel, and whether the Government would accept making that modification here at the committee stage?

💬 Hon Eugenie Sage: And before the Minister does that—

Thank you, Madam Chair. Speaking specifically to Supplementary Order Paper (SOP) 347, the purpose of the panel is not to provide representation of various interests, but to provide the knowledge, expertise—or expertise in the matters listed—when considering draft Orders in Council. The point being is that there is nothing in the bill to prevent the Minister from appointing other skill sets and expertise to the panel if it is needed. That is why, in part, we’ve chosen to go with a larger panel—to give greater scope, to include expertise when it’s required. In short, we don’t feel that the SOP is required to achieve the goal that it’s promoting.

My apologies, Madam Chair. Thank you. Could the Minister for Emergency Management also expand a bit on some comments he made in his second reading speech, I think, about his views on a cross-party forum. It’s not something that the bill provides for but it has been used in the past, and Mr Penk has a Supplementary Order Paper about it. But it is another opportunity of providing parliamentary scrutiny, so would he be able to expand on that? Thank you.

Yeah, I thank the member for that. We have absolutely no concern about the Governance and Administration Committee reviewing the bill and the Orders in Council, etc.—none at all. We looked at it, and there is only one incidence previously, in the history of the House, where Parliament has moved a bill instructing a select committee. So we’ve taken very seriously the concerns that were raised around the speed at which this bill has had to go through, and I felt, as Minister, uncomfortable looking to address those concerns by proposing something that also was very rare. So we thought a pragmatic way about it would be to—in the second reading speech, as I did—invite the committee to do that; not set perimeters on that, let the committee decide, but, in doing so, give a very clear indication that the Government would support that and is supportive of what the member’s proposing.

Thank you—very briefly, Madam Chair. So, Minister, thank you for explaining that the Minister responsible will have the ability to appoint, potentially, somebody with delivery of infrastructure experience. Would the Minister be able to enlighten the House—because we understand that Sir Brian Roche is leading an investigation into cyclone recovery, into the response to Cyclone Gabrielle—as to what that organisation, that working group, which has experience in delivery of infrastructure, might have shared with the Minister that might give the House some confidence that the recovery will proceed at pace?

I move, That the question be now put.

In response to the previous question, Sir Brian Roche is leading the task force; he’s not leading an investigation. The task force has been set up to ensure that the Government’s support of the locally led recovery is as efficient and as streamlined as possible.

I move, That the question be now put.

The question is that the Minister’s amendments set out on Supplementary Order Paper 348 be agreed to.

Amendments agreed to.

The question is that the Hon Eugenie Sage’s amendment to clause 3 set out on Supplementary Order Paper 341 be agreed to.

The question is that Simon Court’s amendment inserting new clause 7A set out on Supplementary Order Paper 345 be agreed to.

The question is that Simon Court’s amendment inserting new clause 7A set out on Supplementary Order Paper 346 be agreed to.

The question is that Chris Penk’s amendments to clauses 8 and 9 set out on Supplementary Order Paper 335 be agreed to.

The question is that the Hon Eugenie Sage’s amendment to clause 8 set out on Supplementary Order Paper 342 be agreed to.

The question is that Chris Penk’s amendment to clause 8 set out on Supplementary Order Paper 336 be agreed to.

The question is that Chris Penk’s amendment to clause 9 set out on Supplementary Order Paper 337 be agreed to.

The question is that Debbie Ngarewa-Packer’s amendment to clause 13 set out on Supplementary Order Paper 332 be agreed to.

Debbie Ngarewa-Packer’s amendment replacing clause 13(3) set out on Supplementary Order Paper 333 is out of order as being inconsistent with a previous decision of the committee.

The question is that Debbie Ngarewa-Packer’s remaining amendment inserting clause 13(2)(a) set out on Supplementary Order Paper 333 be agreed to.

Simon Court’s amendments to clause 13 set out on Supplementary Order Paper 347 is out of order as being inconsistent with a previous decision of the committee. Chris Penk’s amendment to clause 13 set out on Supplementary Order Paper 334 is out of order as being inconsistent with a previous decision of the committee.

The question is that Chris Penk’s amendment to clause 13 set out on Supplementary Order Paper 338 be agreed to.

The question is that Chris Penk’s amendment to clause 19 set out on Supplementary Order Paper 339 be agreed to.

The Hon Eugenie Sage’s amendment deleting clause 19 set out on Supplementary Order Paper 343 is out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Eugenie Sage’s remaining amendments deleting clauses 20 and 21 set out on Supplementary Order Paper 343 be agreed to.

The question is that Chris Penk’s amendment inserting New Part 2A set out on Supplementary Order Paper 340 be agreed to.

The question is that the Hon Eugenie Sage’s amendment to clause 34 set out on Supplementary Order Paper 344 be agreed to.

The committee has considered the Severe Weather Emergency Recovery Legislation Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

In accordance with a determination of the Business Committee, this bill is set down for third reading immediately.

Third Reading