Defence (Workforce) Amendment Bill

Members, the committee is resumed on the Defence (Workforce) Amendment Bill. When we suspended last night, we had concluded the debate on clause 1. We now come to clause 2. This is the debate on the commencement of the bill. The question is that clause 2 stand part.

Thank you, Madam Chair, and I just have a couple of questions on this particular clause. Last night, in the Minister of Defence’s contribution, she spoke specifically to an instance at this time last year, where there was the fear that it would carry over into Christmas. From what I could see and from what I understand, that actually didn’t eventuate, and this is one of those stopgap, precautionary measures, if you will, to make sure that during that time, there is still an ability for the Chief of Defence Force and even the Minister to play their role to backfill a number of those positions, should there be industrial action.

My question to the Minister, put simply, is whether that is correct. She’s mentioned a specific instance. Her words, if I recall correctly—I’ve got them written down here—were that it was at about this time last year, and so I’m just curious. If that was the case this time last year, we’ve now gone through a full year, and here we are, in urgency, going through three stages of this bill. I wanted it just to be clear from the Minister whether it was indeed that instance this time last year that has, one, caused this bill, and, two, meant that it is the wish or the desire of the Minister to make sure that this passes before Christmas. Thank you very much.

In terms of the commencement, just following on from the Hon Peeni Henare around the commencement date, there are things, as we heard from the second reading and select committee stage, that are of concern. Particularly, I think we’ll explore this a little bit more and it’s more appropriately discussed under clause 4, but I just wanted to flag that there are also interactions with other parts of the principal Act—section 9, as well—that I think deserve a little bit more teasing out in terms of the implementation.

I think it would be good to check with the Minister of Defence if the Minister would even consider delaying it or potentially—as we see in one of the amendments from us—consider that the date, rather than being the day after Royal assent, be a date set by Order in Council. This is just so that we’re able to tease out some of the fish-hooks in this bill with regard to how that’s going to work and the issues that it will create, while also noting that this bill has implications for the House of Representatives as well, as we see in the later clauses. I wanted to check with the Minister if it would be prudent to delay the commencement date or to consider, like I said, one of our amendments to change it to a date set by Order in Council.

Thank you, Madam Chair, and thank you to the Minister of Defence for her responses last night. Of course, the commencement date is tied to the fact that we’re hearing this bill under urgency, and that brings us back to the identification of the need for the bill and the gap that it’s filling. Last night, the Minister really helpfully responded to my question about section 9(8)(b) of the Defence Act, which allows the Governor-General to step in by proclamation and rectify the situation, but only in cases where the House has already been dissolved or expired, and so that was a really useful clarification from the Minister last night.

I had another question related to the identification of the problem, which is that the current subsections (2) and (4) of section 9 give the Minister powers to make these authorisations. I can’t spot whether there is a restriction on how many authorisations a Minister is able to make or the duration between authorisations. The reason that’s important is that it would seem to me that if there isn’t a restriction on the power of the Minister, then the Minister could well, under section 9 as it currently stands, issue a new authorisation, and it would just require that the Minister turn her mind to the circumstances that there are on the expiration of the 14 days. Now, to my mind, that is not a negative thing. It is what we require in terms of many of the delegated powers that are provided to Ministers.

I note that there has been a trend over different Governments over the last several years to increase the scope of discretionary powers, and so it is something that the House must be mindful of and ensure that when we are choosing to do that—elongating the period of the days—we’re doing that purposefully. But if there isn’t an actual gap in this case—because the Minister does have the power, once that order looks like it’s about to expire, to then make another order that also lasts for the 14-day period—and if there has been an assessment of the likelihood of two 14-day periods taking us through a summer break to allow Parliament then to sit and then potentially extend the second order, if you like, we’re using everything that’s in the current Defence Act, as opposed to there being any need for us to make these changes.

Thank you. I think we’ll answer those questions, thank you, Madam Chair. As we’ve said before, this bill has already gone through a select committee process, and so when I hear all these cries about urgency, we’re talking about a second reading, a committee of the whole House stage, and a third reading—it’s already gone through a full process. There were around 30 submissions, and they’ve been carefully listened to.

This is not an issue that’s only arisen last year; it’s actually an issue that’s been top of mind for the Chief of Defence Force: the inability to deploy his own staff, particularly where there are situations around, let’s say, the safety of the country, and health and safety. As I said yesterday, even when we had ammunition supply dumps, as we call them, or supply areas that were going to be unguarded for an hour a day, that would be, I think, totally unacceptable, and the Chief of Defence Force needs to have the ability to deal with that situation. It’s not just putting uniformed staff into roles currently undertaken by civilian staff; it’s actually about where there’s health and safety issues, where there’s national security issues, where there’s an urgency, and where there’s a deployment. These are quite limiting times, and it’s not like just shifting people around, like most other employers can do with their staff.

The Hon Peeni Henare has asked whether last year’s action prompted the need for the bill. Well, yes, it certainly showed that existing provisions were insufficient and not practical. One of the provisions addresses the risk that an extension is required when the House is adjourned, and that’s one of the issues that we dealt with last night after a question from Vanushi Walters. The risk didn’t eventuate, but it may well in future.

I think we should remember that the Defence Act is a piece of legislation from 1990, when peace had broken out in the world and every sensible nation thought that everyone else was going to be sensible from there on. What we’re seeing now, unfortunately, 35 years later, is that there is quite an aggressive stance in the world—particularly in our part of that world—and we need to be prepared for anything. Also the effects of weather events, cyclones, and all these sorts of things are all deployments that the Defence Force undertakes, and it cannot be stopped from doing that because there’s something going on.

There is no restriction on the number of authorisations that the Minister can make, or the period before them, but of course we have the opportunity in the House for members to ask the Minister of Defence—in this case, me—questions or to have urgent debates and bring the matter to the attention of the House. If the requirements of the bill are met, which is not just that there’s a strike going on but that there’s an urgency and a need for cover, the Minister can make a new authorisation, and so it is important to remember that there’s not just a willy-nilly “Let’s all go round and stick our uniformed staff in doing the civilian jobs.”; it’s actually that all these other factors have to be in place.

Thank you, Madam Chair, and good morning to the folks in the Chamber today. Just to acknowledge the responses so far from the Minister, I found that last bit constructive. There was a question that the Hon Peeni Henare—well, my interpretation of what the Hon Peeni Henare asked, and that was around the date. I do take a point from the Minister that we did have a select committee process and there were a number of submissions that we heard, and that’s helped to shape the bill as it is, but we are moving through the last remaining stages of urgency, which, if we weren’t moving through urgency, would have given us time to pause and reflect, given the gravity of the issues at stake here.

The question that I’m interested in is around that commencement date. There were issues last year, in 2024, which have prompted this legislation, and I am wondering, in terms of speeding this through and not having that ability to reflect on whether we have the best legislation moving through the process, whether the reason why we’re moving it through urgency is the proximity to Christmas. Is it around the certainty? I suspect that it is, but it would be good for the clarity of the committee for the Minister to share that with us, just in case I’m under illusions and that’s not actually the case.

I do understand what happened last year, when there was industrial action, but in my reading of the situation right now, that urgency doesn’t exist, because unless there are pending negotiations or pending industrial action that the Minister might want to share with the committee, then I guess the question is: why are we moving at pace with these last remaining stages, given that there are a number of issues that we’re trying to continue to put through? But I also acknowledge that we have addressed a number of those issues in the select committee process.

My question is around the commencement date: is there scope to move it out so that we can actually really get through more of the detail of what the best way forward is for military personnel and civilian personnel? Given that we do want these groups of workers to be able to work together in the best way possible, I note that in the departmental report and in the select committee process as well, that was an issue that was raised. The Public Service Association submission did talk about the fact that they have had off-the-record conversations that military personnel felt uncomfortable about where this was heading, and so a bit more time would be good to make sure that we have the best process possible so that if we get to the situation where industrial action is happening, then it’s done in a way which is to the benefit of the wellbeing of the entire workforce—the military plus civilian—in that space.

Thank you. I’m happy to address that issue. The date is the date after the Royal assent, which is the normal date for bills.

As for the proximity of Christmas, of course that’s an issue, to make sure that the House isn’t adjourned and we have a problem. But I’d just also point out that whenever Parliament is adjourned during the Christmas break, not only is it difficult to do anything through Parliament—since I can’t imagine that too many of us want to be called back in during that time—but also it’s when a lot of weather events happen, whether it’s in New Zealand or overseas, and so we do actually have to be prepared all the time.

The Defence Force can’t always plan on things happening in weeks or months or even days. Sometimes things have to happen straight away, and so it is very important that the Chief of Defence Force has the confidence to go into this break knowing that he’s got the ability to pull in the right people at the right time, and he’s not under this sort of threat that suddenly he won’t have anybody to undertake some, say, logistics works that he needs to have done for an urgent deployment.

There’s no industrial action that I’m aware of at the moment, and I just sort of hope that we won’t be going down that pathway. I think it’s really important that everyone works together as much as possible in defence and in every other part—and so I’m not aware of any.

Thank you, Madam Chair, and thank you very much to the Minister of Defence for those last responses, which I also found really helpful. I am a bit concerned about the use of urgency in the House, and not only for all stages, but I think what we’re seeing more and more is that at the final stages of urgency, it’s viewed as not a problem or not an issue really, when one of the key things, to my mind, that happens during urgency is the proposal of amendments by members of Parliament.

Hearing from the public is absolutely important, as are the amendments. I do try and ensure that when I’m submitting amendments, they’re done constructively in terms of things that will improve the clarity of the bill. It’s a process of Parliament that should be used and valued, but I’m very concerned that it’s just not something that’s given much respect. Government members are laughing at the moment, which I think is demonstrative of that, and I think it’s a shame because the public are not just submitting; they’re also watching these stages of the House. They’re sending us proposals for amendments as well, which we’ll often include and submit, and I think they ought to be considered, even at a late stage.

I recall during Budget urgency that there was a suggestion that I’d put forward. It was about an interpretation of one of the phrases referring to I think it was the chief executive of Invest New Zealand. It looked to me like a drafting error, and I do think the House needs to be mindful of those, as well. My big point here is that the House’s procedures are very important, and so although the Standing Orders only require a reason to be given when urgency is invoked, I think there’s a duty of care in terms of the rule of law and democracy that the reasons are genuinely about urgent situations.

One more time, I go back to whether there’s a gap in the legislation, and I think the point of real clarity was when the Minister spoke to the fact that there is no limit on her ability to make those announcements to make a new power—a second power, if you like—on the expiration of the first. I’m again just curious about the benefit of changing legislation to extend when that power is already there to make a second—I forget the language around it—authorisation, and, in my mind, while there might be administrative ease rolled into a decision to do this, it removes some oversight. There is a balance here in terms of the right to strike and the ability to strike, but we’re also ensuring that we have a defence force that is capable and ready to go, certainly in emergencies and certainly when we need to act quickly—you’ll have no dispute from me on that. I think the question is one about appropriate ministerial oversight or parliamentary oversight, and the mechanism already exists.

This is an issue that’s tied to the commencement; it’s obviously an issue that’s tied to clause 4, as well. Interestingly, there are amendments on the Table that speak to this and the fact that in many ways, this part of the amendments is simply not necessary to meet the problem of us being able to give that direction over the Christmas break. I’d welcome a comment from the Minister, and certainly if I’ve misunderstood the advice from the officials through the Minister, but otherwise it’s an issue that I’ll certainly be bringing up in the debate on the next clause of the bill.

The question is that Teanau Tuiono’s tabled amendment to clause 2, providing for the bill to come into force on a day set by Order in Council, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 2, providing for the bill to come into force on 1 January 2027, be agreed to.

Point of order, Madam Chairperson. As we seem to be traversing all parts of the bill as one, I’m seeking leave for all provisions to be taken as one question.

Leave is sought for that purpose. Is there any objection? There is objection. Members, we now come to clause—[Interruption]

Tim Costley: Narrow it down.

Dana Kirkpatrick: Let’s stick to the clauses, then.

CHAIRPERSON (Barbara Kuriger): Well, can I just say before we start clause 3 that we were relating those questions to clause 2 back to timing. We had no closure motions. People were standing up and asking questions of the Minister. We have now closed on clause 2. It’s easy for some members to have a view on that side about what fits and what doesn’t, but I didn’t hear any speeches or any closure motions from that side during that debate.

Clause 3 Principal Act