Climate Change Response (Tort Liability) Amendment Bill

Committee of the whole House

Thank you, Madam Chair. I’m keen not to lose the opportunity to make my contribution, as I previously indicated before the lunch break, on commencement. Commencement, as I said before, is often overlooked as a minor provision, but actually, the timing of when bills come into force can really impact the way that they are received by the community. It can impact the preparation that the community is able to do in advance of something coming into law, and it can actually really affect whether the law is sustainable or not. We had a bill recently, the Health and Safety at Work Amendment Act, that does not come into force until well after the election, and therefore, probably won’t ever become law—so you can see that this commencement provision, clause 2, is not a minor provision at all.

This provision is more of a standard one, which says that it will come into force the day after Royal assent. Now, that is likely to be not until next sitting week now, as I understand we won’t be doing the third reading today. I could be wrong on that, but that will be a time period that is quite close if the Government does decide, in fact, to put the third reading on the Order Paper as a matter of priority.

I’ve actually tabled an amendment to clause 2, and I wouldn’t mind if the Minister in the chair, the Hon James Meager, wouldn’t mind responding to whether he is in support of this amendment, which is to change the Royal assent date to one month after Royal assent. The reason that I have done that is not to be contrary to the purpose of the Act. The committee will not be surprised that this is not a bill that the Labour Party agrees with; however, it is not contrary to the objectives of the bill in the sense that I think there are actually good reasons to delay the commencement.

The reasons are, as I put in the explanatory note, that this particular bill is unusual in the sense that it has active litigation. The fact that it has active litigation means that there are court registries—the High Court registry—and the Supreme Court has obviously delivered its decision. I don’t know if it has a file currently still open on this particular case. It may well do that because, obviously, if the High Court determines that there is a liability for climate-related tort, it may be that that decision would be appealed possibly up to the Supreme Court again on the finding of actual material fact in this case. They may have a file open; the High Court may have a file open.

We heard submissions, which I think were valid, around costs. Now, we know that this bill, and it was clearly set out by the Minister, that this bill will not provide compensation for the fact of the bill coming into force, and we’ve gone through that provision. Now, that is relevant to the courts because the courts may—and I didn’t answer this question in the relevant part, so I won’t put it to the Minister now—but I do think it may be relevant for the courts to, within their own jurisdiction, consider the question of costs if such an application was to be made by one of the parties.

Now, two weeks is probably not enough time for a thoughtful and considered application in respect to costs if it now becomes clear to Mr Smith that this bill will shortly be passed; but a one-month period of time could allow the idea and the concept of costs brought by Mr Smith to be raised in the relevant court, and considered by that court, and determined on before this bill comes into force. I do think that that is relevant because there are significant access to justice issues raised in this bill, but they could be mitigated by a slightly longer commencement date allowing the courts to consider that, and the Minister may be able to get advice on whether that was foreseen by this particular bill. I’d be interested to know if it was in fact intended to get rid of all of the potential claims in relation to previously accrued costs when the cause of action was allowed to take place.

Those are genuine questions. I also have tabled amendments in writing now relating to the two amendments that I foreshadowed that I would put on the Table in relation to title, and I wouldn’t mind if the Minister had an opportunity to respond to that.

Committee of the whole House

Thank you, Madam Chair. We don’t support an amendment to the commencement date. The bill provides a statute bar for the liability in tort for the climate change tort for the prevention of tort being, I guess, promulgated into law by the courts. The bill doesn’t do anything around the procedural issues of costs for previous litigation, so changing the commencement date would have an impact on that.

If there are procedures that litigants need to go through or want to go through to pursue, that’s entirely up to them in their own time, so changing the commencement date wouldn’t have an effect on that. We don’t support a change to anything other than it coming into force on the day after Royal assent. In terms of change to the title, we are very comfortable that the title accurately reflects the content of the bill, which is that it amends the Climate Change Response Act, and it does it in relation to the issue of tort liability.

Committee of the whole House

Thank you, Madam Chair. I rise to take what is probably my final call on this Climate Change Response (Tort Liability) Amendment Bill. It’s good to be here on a Thursday afternoon. I’m not normally here; normally, I’d be on a plane back to Dunedin by now. But look, I am speaking around the clause around the commencement, and I support the call by the previous speaker, Camilla Belich, to delay the commencement of this bill. I want to take a slightly different angle from the angle that she’s taken. The angle that I want to take is that tomorrow, as we all know, members—and I’m sure you’ve had plenty of reminders from your whips and such—is the start of the regulated period, that it’s time to change the authorisations on your social media profiles.

Now, the start of the regulated period is significant because, by constitutional convention, it is, of course, when we do tend to enter a caretaker mode. That means that, in the past, Governments have taken restraint in terms of appointing people to various roles and positions in the Public Service and the public se, and it’s also taken care not to potentially advance policy that might be irreversible. While this bill is not necessarily irreversible, it is of constitutional significance, because it does take away the right of New Zealanders to have their day in court on a topic which is one of the biggest issues that we face today, climate change, without compensation.

So it’s significant enough that I am appealing to the Government that they should delay the commencement of this legislation. We’ve heard from Minister Goldsmith, during the quite lively debate during the committee of the whole House stage, that the question of climate change policy rightly belongs on the campaign trail. If that is so, if the question of climate policy rightly belongs on the campaign trail, then they should live by their statements and actually delay this bill so that the people of New Zealand can actually have their say in it during the general election.

If the Government gets reelected, then the commencement date will happen, no problem; but if this Government doesn’t get reelected, then a future Government will have the opportunity to, potentially, reverse the passage of this law. But if the commencement date, as it’s set is currently, then it will pass and it will be set in law before voters have had a chance to have their say. It’s not really that much longer to wait before the election. I believe it’s 94 or 93 or 92 days away. So we’re not asking for much. I mean, this probably won’t affect that many cases by that time—if it commences now, anyway.

So my appeal to the Government is to respect the constitutional conventions around the regulated period, and allow this bill to be delayed so that, as the Government’s own speakers have been saying, that we allow the people of New Zealand to have their say on this bill and have it be decided by the ballot box. Thank you.

Committee of the whole House

Just to repeat: we won’t be accepting amendments to the commencement date. We want the bill, the Act, to come into force on the day after Royal assent.

Just to correct the member: there is no caretaker convention in the pre-election period.

Francisco Hernandez: There is.

Hon JAMES MEAGER: No, there is not. There is Cabinet Office—

Francisco Hernandez: I’ll forward you the library request.

Hon JAMES MEAGER: No, there is not. There is Cabinet Office—

Francisco Hernandez: Yeah, there is.

Hon JAMES MEAGER: I can repeat it for a third time: there is not. There is a Cabinet Office circular which expressly says there is no caretaker convention in the pre-regulated period. There is restraint shown in appointments and there is restraint shown on policy which may result in advertising campaigns but there is no caretaker convention in the pre-regulated period. So the changing of the date has no constitutional impact; we will be having this Act come into force on the day after commencement. Tomorrow is the regulated period, you are correct. More importantly, it’s 7 August, it’s my mum’s birthday—so happy birthday, Mum.

Committee of the whole House

I move, That debate on this question now close.

A party vote was called for on the question, That the debate on this question now close.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Motion agreed to.

CHAIRPERSON (Maureen Pugh): Steve Abel’s two tabled amendments to clause 1 are out of order as not being an objective description of the bill.

The question is that Camilla Belich’s tabled amendment to clause 1 regarding “Prevention of Tort Liability and extinguishment of Smith v Fonterra Co-Operative Group Ltd litigation” be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Camilla Belich’s tabled amendment to clause 1 regarding “Prevention of Tort Liability” be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

A party vote was called for on the question, That clause 1 be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Clause 1 agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Steve Abel’s tabled amendment to clause 2 to “three years after Royal assent” be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Steve Abel’s tabled amendment to clause 2 to “four years after Royal assent” be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Steve Abel’s tabled amendment to clause 2 to “five years after Royal assent” be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Maureen Pugh): The question is that Camilla Belich’s tabled amendment to clause 2 to “1 month after Royal assent” be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Noes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

A party vote was called for on the question, That clause 2 be agreed to.

Ayes 67

New Zealand National 48; ACT New Zealand 11; New Zealand First 8.

Noes 53

New Zealand Labour 34; Green Party of Aotearoa New Zealand 13; Te Pāti Māori 4; Ferris; Kapa-Kingi.

Clause 2 agreed to.

Bill to be reported without amendment.

Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill

Committee of the whole House

Part 1 Substantive amendments to principal Act

CHAIRPERSON (Maureen Pugh): Members, we come now to the Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill. We begin with the debate on Part 1, which is the debate on clauses 4 to 40, “Substantive amendments to principal Act”. The question is that Part 1 stand part.