Integrity Sport and Recreation Bill

Members, the House is in committee on the Integrity Sport and Recreation Bill. We come—

💬 Camilla Belich: Point of order, Madam Chairperson. I seek leave for all provisions to be taken as one question.

CHAIRPERSON (Hon Jacqui Dean): Leave is sought for that purpose. Is there any objection? There is none. The question is, then, that Parts 1 to 6, Schedules 1 and 2, and clauses 1 and 2 stand part.

I thought I would just take a brief call at this outset to run through, essentially, the framework of the bill and what we’re trying to do here and just reiterate, as we have at earlier readings—well, particularly the second reading just now—the really good way in which the Social Services and Community Committee worked through this bill, and the excellent support provided by officials as we worked through it. It is clear to me that for the vast bulk of members of the House, they can see that this is the right thing to do to deal with a set of quite common complex issues, but ones that do interact with each other and provide a very clear framework.

So, essentially, Part 1 of the bill, as is normally the case, deals with definitional issues. There have been one or two changes made there which have been highlighted in the second reading. They are good and useful and constructive changes that will make interpretation of the bill significantly easier.

Part 2 is one of the meatier parts of the bill. It’s the establishment of the commission as an independent Crown entity. I do just want to mention—it was mentioned in Penny Simmonds’ last call, I think—that independence from the Government of the day, the structures of sport as we know them, is actually essential here. I, in the nearly six years of being Minister for Sport and Recreation, have been the recipient of an awful lot of correspondence about every level of sport that you could imagine, all of it heartfelt, all of it coming from a place where an independent voice, lens, and place is critically important, because, as Penny Simmonds noted, these communities are often very small and people do know each other, and it’s very hard to get the perspectives that are needed. It’s also very hard for people to raise complaints—and I will come, at a later stage, in another reading, to talk a little bit about some of the people who have come forward and their courage in doing so. So that point of making it an independent Crown entity is, I think, a very, very important one.

Then, obviously, the series of functions which have been run through at some length in the earlier readings, so I won’t go through them again now, but they are clear and they are important functions for the commission to do all of its job.

Then, Part 3 is about the codes. I know this was the subject of quite a bit of discussion both in the committee and from submitters. Striking that balance for the codes being both useful documents that can be applicable at different levels of sport, from the elite down to the grassroots, and ones that don’t reinvent the wheel, has already been indicated by some speakers—but that have enough meaning that they will be useful and people will know how they can work or how they can work through them. So there’s a process to make the codes, which is through Part 3 of the bill, and consultation processes that are included in that, particularly bringing our anti-doping rules into this framework, having been in the previous Drug Free Sport New Zealand framework.

The other parts of the bill, I won’t go into in any great detail now, but I’m very happy to answer questions around Part 4, where the powers and investigations and disciplinary panels are dealt with, and the way in which investigations happen. This is an important area because it will be very sensitive. It will need to be handled in a thoroughly professional way. That is outlined for everybody, as to how those processes work, all the way through. Then, finally, Parts 5 and 6 tidy up the various bits of provisions of other Acts.

So I just wanted to give that broad introduction. I’m more than happy, as is usual, to answer questions on the bill. Again, I thank all colleagues for their work on it.

Thank you, Madam Chair. I don’t think we will be too long in our detailed examination of the bill. I do want to address the most controversial part of the second reading speech from Dr Leavasa, and his outrageous claim that the Ponsonby Rugby Club has produced more All Blacks than the Otago University Rugby Football Club, which is, as any rugby aficionado knows, the cradle of All Black rugby. Now, it’s been a while since I’ve had a look at it, but I think there were about five or six ahead. So we’ll just let that lie there, but I think that could be a battle that Dr Leavasa—I’m not even a member of a university rugby club. I’m a Sharks man, but there you go. I will defend the integrity of Otago Rugby.

Now, on a slightly more serious note, I was—

💬 Simon Court: Forty-eight All Blacks from Ponsonby.

Forty-eight? Well, there were 49, I think, from Otago University. If one counts those that played after leaving the university, then I think it’s up to about 70, against a paltry 51 from Ponsonby. So there you go. Now, anyway, I definitely digress.

I wanted just to address the Supplementary Order Paper (SOP) in the name of Nicole McKee, and also something she said in her second reading speech, before I ask the Minister for Sport and Recreation a question about clause 21. I think it’s going to be quite important. She said—and I’m paraphrasing—that the bill will result in fewer women and girls participating as a consequence of its failure to address the perception of the ability for transgender participants in women and girls’ sport. Now, while that might be an issue, and I’m not undermining that, this bill is not going to make that worse. In fact, thanks to the amendments made to the bill by the Social Services and Community Committee, which have been approved at second reading, that risk is lower, not higher. Now, I think the SOP is in the name of Karen Chhour, is that correct?

💬 Nicole McKee: It is.

Thank you. The SOP will seek to add section 49 of the Human Rights Act into clause 5—the definition of “threat to integrity”. But the select committee has already dealt with that by the inclusion of Part 2 of the Human Rights Act: bullying, violence, abuse, sexual misconduct, intimidation, or harassment in sport or organised physical recreation. Now, Part 2 includes section 49, and section 49 is a carve-out for legal discrimination on the basis of sex, disability, and something else; I can’t remember what it is. So the SOP is unnecessary because the select committee and this House have now already dealt with it.

My question, Minister, is around clause 21—I think it’s something that has troubled me since the bill was introduced—and that is the voluntary nature of the codes. What’s it called? The departmental disclosure statement talks about the integrity codes made by the commission, under clause 19, not being mandatory, and organisations will need to opt in for the integrity code to apply. This approach may be considered unusual, compared with other secondary legislation; however, it is consistent with other regulatory approaches.

Now, we kicked this around. We didn’t make any changes, as far as I can tell. So I would like an explanation about why organisations won’t be bound by the codes, and the perceived risk that regional or national sports organisations or codes would just stay out, particularly if they had issues of integrity or betting infractions, a record of drugs. Why would they not want to be a part of that, and, that being the case, why not simply make it compulsory?

Madam Chair, I thank the member for raising this. As I indicated in my earlier contribution, I am conscious that this is one of the areas where there has been debate. I’ll be completely transparent with the member. We debated it ourselves, as to whether or not we should be heading down the path of, effectively, mandatory codes, or whether it should be the approach, which we ended up adopting, that is in the bill.

I have several comments. Firstly, internationally, there is different practice in this. So there wasn’t one thing for us to say, “That’s what we should follow” if we were looking at where other countries or other jurisdictions went. Secondly, we are at a particular juncture in this legislation, between the role of the State and the role of individual organisations and bodies. If there is a crime that has been committed, then, quite clearly, there are pathways, you know, for that to be dealt with. Where a law is broken—it’s not a question of a code, or anything like that—it is a breach of the law, and the prosecutions, which you would expect that would follow from that, would follow from that, to take some of the examples that the member has given.

But when we’re talking about getting sports to adopt and genuinely own these, we fell on the side of saying, “We want sports to sign up to it”. Now, I think the wording is important in clause 21 here, because once a sport has agreed to a code, it’s bound by the code. So there is a binding effect once you do it. It’s our view—and certainly by the consultation we’ve undertaken with sports—that most sports want this. Most sports will be very pleased to sign up. Then once they are, as you go through clause 21(2) and beyond, you’ll see that they are in fact bound by it at that point. So it’s the point of entry into having the code, at which we have left that open. The experience internationally, what we’ve heard from the codes themselves, indicates to us that we’ve fallen on a line of, effectively, giving people something that they will have true ownership of, rather than feel that it’s being dictated down to them, rather than it not necessarily working for them and their sport as well as it might.

The member notes, and we’ve got that in the changed clause 22, that we now have the three-yearly review. In a way, I’m actually very happy that that is now in the legislation, because that means we can see really this contestable space, which I absolutely acknowledge that it is—we’ll be able to review in three years’ time whether we got it right.

Thank you, Madam Chair. I appreciate the answer from the Minister for Sport and Recreation. It is true, for example, that if there is the commission of a crime that’s unlawful under the Crimes Act, for example, then, obviously, there’s a different process to be followed. But what we were hearing about in the Social Services and Community Committee were—well, they were grey areas, but they were certainly very clear breaches of integrity.

So in accepting, as I have, begrudgingly, that the code will be voluntary, I wonder, regardless of who the Minister of sport might be from November, if this Minister would commit to—

💬 Angie Warren-Clark: Ha, ha!

Don’t laugh too hard, you might get into trouble. If the Minister would commit to ensuring that, to use a sporting euphemism, some kind of score card is kept of the progress towards ensuring as many as possible of those sporting codes that have been the subject of questions about integrity—whether that’s behaviour or betting or drugs—are actually signing up to the integrity codes once they’re done. And if they’re not, then this House might need to reflect on that and do something differently.

I just want to note also in clause 20, the consultation has been extended—and, I think, significantly—to acknowledge the change in definition recommended by Ricardo Menéndez March to describe rainbow people, but also that women and girls who, frankly, putting aside any of the transgender issues, were very much the victims and the storytellers. And I think that it’s going to be very important for them to be consulted.

And the last thing I will say is I absolutely agree with the Minister in his comment about the review of the code at least once every three years. I think that’s going to be particularly important in the first three to six years as we get this going. But as I said in my second reading speech, Australia’s got some pretty good templates. I’m sure if we ask them nicely, copyright issues notwithstanding, we could probably get a pretty good head start on them.

I thank the member. There were just a couple more points to add to my initial response to him. The first of those is, when it comes to the anti-doping rules, which, of course, are being incorporated into this, they themselves are usually voluntary, but sports want to do them because their athletes’ ability to participate actually relies on them being part of them, even though they’re voluntary. So there is a consistency with the way we deal with anti-doping.

The other point is clause 32 of the bill does allow for investigations of a threat to integrity if the public interest test is satisfied. And I think that covers the point that the member was making about the area between the obvious criminal activity and what is perhaps the grey area that he mentioned. If the public interest is deemed to be sufficient, there is an ability there, beyond the code or anything else, for an investigation of threat to integrity. So, I think, with that, that I have sufficient confidence that the scheme is robust. But, as both of us have now agreed, the review helps us with that.

Thank you, Madam Chair. So, yeah, I just wanted to acknowledge the contributions regarding the questions about whether it should be mandatory or otherwise. But I wanted to focus on, I guess, as I alluded to in my previous speech, the challenges that our different sports bodies and governing bodies have in terms of having fit-for-purpose policies around e-sports, and I want to acknowledge the bodies in New Zealand who engaged in the creation of this bill. But, I guess, I wanted to get a reflection from the Minister for Sport and Recreation in terms of how we can ensure that we make this bill work for that scene when there are the broader challenges, both in terms of very new, frequent changes to the scene—and it’s a new scene, and the challenges they have in anti-doping are unique, right? So, I guess, I just wanted to get a reflection from the Minister regarding how we make this bill work for the e-sports scene.

Secondly, I guess I wanted to get a reflection from the Minister, as well, regarding what he would say, I guess, to—we had commentary from rainbow peoples and submitters who talked about the need for greater consultation and engagement, and who are often feeling under attack, often by misinformation, in these sorts of debates. So I guess I would like a reflection from the Minister regarding how he thinks this bill will further enhance the rights of rainbow people, of gender diverse people, women, and gender minorities as well. Thank you.

I thank the member Ricardo Menéndez March, and I also want to add to other colleagues thanking the member for his contribution as the bill has gone through the Social Services and Community Committee, and, indeed, on the last point that he’s raised—the changes Mr Woodhouse alluded to earlier—on the definitional section around rainbow people, and then also in the consultation on codes and the seeking of views in terms of the establishment of the commission.

I think it’s a real step forward for us that this piece of legislation identifies groups that have been marginalised in the sporting and recreation sector and, very sadly, have been the recipients of bullying, of harassment—people who haven’t always felt that there was a pathway for them. I think what we’re setting out here now is not just that pathway for them but a requirement on the commission to do the right thing and to be there and to listen and to bring that into their work.

Just, if the Chair will indulge me just very briefly, one of the amazing things about the last three weeks with the FIFA Women’s World Cup has been to not only go to the events but all the talk around the community about sport. And, of course, as somebody who loves sport, for me it’s amazing, and I’ve always felt that sport has this extraordinary ability to bring communities together.

I’ve equally thought that if we exclude people, that means then they’re not part of our community, so when we’re having this moment and we’re having this celebration, if some people feel excluded from it, then we’re letting them down and, actually, it’s undermining the strength of our communities. And so what I feel this bill does—and, again, I thank the select committee for their work to enhance this—is it really does provide a template on consultation, but also on the way in which they establish themselves to be truly open to hearing about everybody’s experience and how we can make that better.

So, you know, I think this bill will take a bit of work to get into full practice. It will require a very proactive effort. It will require making sure that the members of the commission—and that’s covered in clause 11 of the bill—are able to take that on. It’s a big job—it requires the ability to understand law and children’s rights and the different communities that we have—but I think that’s the right thing to do, to be ambitious about how that will work.

And, as I say, there’s some good templates out there, not just overseas but also the work that Drug Free Sport New Zealand has done. I think we can learn a lot from that, and they are being incorporated into what we do here. So, you know, it will require a lot of work. It’s proactive, but it’s written down in the bill, and that, to me, gives me confidence it’ll happen.

Thank you, Madam Chair. Thank you, Minister for Sport and Recreation. Minister, I’m going to speak to the two Supplementary Order Papers that my colleague Karen Chhour has placed on the table, and I understand, as well, my colleague Michael Woodhouse and what he was saying about feeling like it has already been added to the bill, because we actually speak within the bill about wanting to remove the discrimination issues that are apparent, including recognising—anyway, what we’re looking to do is have fairness for all. And we do note that within the Social Services and Community Committee submissions, there was, as reported in the select committee report, a significant proportion, I guess, of parents out there who are worried about the integrity of sport for their female children.

It looks like the select committee have done a really good job in trying to tidy things up and make it quite clear. Michael Woodhouse has actually said, “Look, we’ve already got this within our bill.” But I think there is a way that we can actually clarify it—for those worried parents, the significant number of worried parents—by actually just referring to a clause of the Human Rights Act that’s already there. It’s not like we’re producing anything or creating anything; we’re just putting it into the bill.

So, Minister, could I please have you just speak to me about why it wouldn’t, and what is the reasoning for not using this as a way to alleviate some of the concerns of those parents out there? Thank you.

I will be reiterating what a couple of other colleagues have said. This bill is not about who can and cannot participate in sport. That is not what this bill is about. It was never about that. It’s about supporting and upholding and safeguarding the rights of the people who are participating in sport, whoever they may be. So I don’t believe that the Supplementary Order Papers (SOPs) put forward by Karen Chhour actually are either relevant in part to the bill itself—it’s certainly not necessary. And with respect to the member, I also do not accept that it’s just a matter of clarity.

I do find it somewhat ironic that these amendments are coming from a party who profess to believe in libertarian values and the State not being involved. Most sporting organisations in New Zealand apply rules about participation on the basis, usually, of an international guideline. That’s normally what happens. It’s the international rules of a particular sport. I have tried very hard over the last few years, whilst utterly believing in the importance of inclusion in sport and supporting transgender participation in sport as well, to not get in the way of sports making their own decisions about how they organise themselves, because, internationally, that’s what they’re doing. And it just seems very odd to me that the ACT Party thinks that the heavy hand of Government should come down and tell those individual sports what they should do.

So I don’t support these amendments. They are completely unnecessary. They are only borderline even relevant for the legislation. That’s not my decision and I’m not taking it; I’m just saying it’s my opinion. I’m choosing my words carefully because I don’t want to step out of the rules of Parliament. But I think we all know where this kind of rhetoric comes from and what it’s about, and I can tell you with absolute certainty it is not about the purposes of this bill. So, no, we don’t support those SOPs.

Thank you, Madam Chair. I’m going to be in the unusual situation of both agreeing with the Minister for Sport and Recreation, partly, and agreeing with Nicole McKee, partly.

💬 Hon Kieran McAnulty: No, pick a side.

Well, so there’s no side to pick—I think that’s the point that the Minister was trying to make. And to the degree that the amendments made by the Social Services and Community Committee to clause 5 is a belt and braces one, effectively, what Karen Chhour’s Supplementary Order Paper (SOP) 410 seeks to do is to make it clear that the exceptions in section 41 are included in the bill. But there’s no need to, because paragraph (c) of the definition of “threat to integrity” in clause 5 makes it very clear: discrimination that is unlawful under Part 2 of the Human Rights Act—discrimination on the basis of sexual disability, according to section 41, is not unlawful, and, therefore, there is no need for the SOP.

Now, I am going to give the Minister a little bit of a rebuke, in my view, on the question of libertarianism and the heavy hand of the State, because, actually, one of the reasons why there was so much concern was because of an interpretation on Sport New Zealand’s guidelines on the participation of transgender athletes in sport where the three legs to that are very important: participation, safety, and fairness. But those guidelines described participation as paramount, and that has got a lot of people worried that that means that the fairness and safety aspects of participation would be subordinate.

I think those fears are legitimate, and, as I said in the second reading—quoting my question to InsideOUT in the select committee—is it possible to express those concerns without being labelled transphobic? We didn’t get an answer. It’s homework for us all, I think, to be able to have a moderate discussion on both sides of this argument without resorting to epithets. By the way, I should qualify it: I don’t think that that was what the Minister was doing at all, and I wouldn’t want to leave the impression that that was the case.

I want to finish by coming back to the earlier response that the Minister made in respect of the question of voluntary compliance with the code by pointing out—and I’ve got to find it in my scribbled notes here. It referred to clause—was it 31?

💬 Hon Grant Robertson: Clause 32.

Clause 32, sorry—clauses 31 and 32, basically. So clause 31 says that the commission may investigate anyone who’s bound by a code, but then—and I don’t think I picked this up in the select committee process—at clause 32, the commission may also “investigate anything to which neither section 31 nor the anti-doping rules apply” if, effectively, it’s a threat to integrity and—

💬 Hon Grant Robertson: It’s the public interest bit, Michael—yes.

—it’s in the public interest. So does that mean, therefore—and I’d ask the Minister just to clarify if I’ve him right—even though a sport may not be subject to the code or may not have signed up to a code, the commission may still nevertheless investigate a breach of it if it’s in the public interest to do so? Because that’s actually quite a big—I wasn’t aware of that, I don’t think. But, if that’s the case, that’s going to be quite difficult for sports organisations not to sign up to the code. It’s kind of a Hobson’s choice at that point.

I think I know where the member Michael Woodhouse is coming from, but I don’t think it’s the choice that he thinks it is. The codes are the codes, and they will govern the way in which sports operate and the standards that are expected of them, the participants will know where they’re going—you know, it’s something that everybody will buy into.

What clause 32 does is it creates something that’s of a much higher nature—I mean, the concept of the public interest takes you to a different place than the day-to-day complaints that might come through as a result of a code breach or an anti-doping rule breach. I just would invite the member to look down to clause 32(2) and then go through the list of things that the commission has to take into account as to whether or not there is the particular place and role for this kind of investigation.

I’d just reiterate what I said to him in my first intervention on this: I think this sits between the things that would be normally covered by the code—the things that are automatically referred to the police because they represent activity that is in breach of the law—and now we’re in a space where there is a threat to integrity that is of sufficient seriousness for it to be regarded as being in the public interest for the commission to pursue it. So I believe it fits. It actually does exactly the thing the member was asking about, and I think it fits well into the framework.

Thank you, Madam Chair. Minister, thank you for your prompt reply. Although, you know, when you start politicking instead of actually listening to some of the issues that are being raised—which are genuine issues that have been raised—and the response is, “We’re going to look at integrity, but not necessarily balance that out with fairness”; that’s exactly what the ACT Party are looking for. The moment you start talking about certain issues, you get labelled in certain ways, but our second reading speech even said, “It’s not about transphobia; it’s actually just about fairness in sport” and addressing some of those issues of some of the submitters.

When I look at the select committee report, Minister, it says on page 4—the acknowledgment of women and girls, having been historically “greatly affected by issues of discrimination in sport and active recreation.” It goes on to say that clauses 16 and 20 have been amended to actually recognise women as being stakeholders within this arena. For that, we congratulate the committee for looking into it and also making those amendments.

We think that it could be stronger if the board could actually be made up of one female within that sport, just to actually take on board what is within the select committee report. It’s about fairness as well as maintaining that integrity, Minister. It’s not about having a go at anybody in particular or any type of person, but actually being able to have fairness within sport so that it goes hand in hand with the integrity. Thank you, Minister.

Thank you, Mr Chair. I just want to make a final comment about clause 50 and leave the Minister, and his officials, to be vigilant in making sure that when fees are charged, they are reasonable in the circumstances. Now, the Social Services and Community had—

💬 Angie Warren-Clark: Quite the discussion!

Well, for all the things that we had to deal with, it was actually a little thing that became a quite big thing and a cause of some tension at the end of the process. Maybe we were a bit tired and emotional that day, but we got there in the end.

Just for the committee’s benefit, I have had a little bit of experience of—when there are health tests—certain organisations charging like wounded bulls, frankly, and well above what I know are the reasonable costs for them. It was with that in mind that I wanted to sort of tighten up a little bit on the freedom to charge, because ultimately it’s going to fall on either the athlete or the national sports organisation. We settled on subclause (2A), “The amount of a fee charged under subsection (2) must be reasonably related to the expenses incurred or to be incurred in relation to the testing conducted.”

Now, that belies a great deal of discussion about what constitutes “reasonably related to the expenses occurred”. I guess in professional services, it used to be the old way—used to be you’d go one-third, one-third, one-third: one-third salary, one-third overhead, and one-third profit. Well, it’s a lot higher than that now—and the lawyers in the room will probably want to shrink a little bit. But the health sector can also do that and there will be some health tests involved in this regime.

I guess the homework for the Minister and officials is to make sure that there is a monitoring regime to ensure that there are benchmarks or some other kind of guidance for these expenses so that it doesn’t get silly. That was the intention of the committee in including this clause, which is not dissimilar to subclause (2) of clause 49. It will be an issue, I think. I just want to make sure that officials continue to—

💬 Angie Warren-Clark: Look at the review though. We built the review in, remember.

That’s right; we do have the review, and the review should include any inappropriate charging by stakeholders in the integrity framework, because that would be undermining integrity—how ironic would that be? With that, I think that’s basically what I wanted to say.

Thank you, Mr Chair. Minister, I just wonder if you can clarify—maybe we can put it on the record, because this is part of the concern, that discrimination that is unlawful under Part 2 of the Human Rights Act 1993, and Part 2 includes section 49 which we’ve talked about extensively. But a proposed problem foreseen within the particular bill is that the commission may decide that discrimination on the basis of gender identity is a matter of discrimination and therefore it overrides section 49, especially as clause 14(2) of this bill refers to gender identity and expression. So can you just confirm, Minister—if you are in the position to confirm—that section 14(2) won’t override section 49 of the Human Rights Act and that that way we do actually get that fairness?

This is repeating material we’ve already covered, but the Human Rights Act exists. This bill does not override the Human Rights Act—it exists. What this bill does is to also—as the select committee did—recommend an amendment to clause 5 of the bill to ensure that the reference to discrimination in the definition of threat to integrity was to discrimination that is unlawful under Part 2 of the Human Rights Act. So I am repeating myself; it is what I said earlier. I believe that this bill does important things to grow inclusion in sport, and I believe that the Supplementary Order Paper that the member is discussing is jumping at shadows.

The question is that Ricardo Menéndez March’s amendment to Part 2 set out on Supplementary Order Paper 408 be agreed to.

The question is that Karen Chhour’s amendment to Part 2 set out on Supplementary Order Paper 411 be agreed to.

The question is that Ricardo Menéndez March’s amendment to Part 2 set out Supplementary Order Paper 412 be agreed to.

The question is that Karen Chhour’s amendment to Part 2 set out on Supplementary Order Paper 410 be agreed to.

Madam Speaker, the committee has considered the Integrity Sport and Recreation Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

ASSISTANT SPEAKER (Hon Jenny Salesa): The bill is set down for third reading immediately.

Third Reading