Defence (Workforce) Amendment Bill

Members, we now come to clause 4. This is the debate on the amendment to section 9, “Section 9 amended (Use of Armed Forces to provide public service or assist civil power)”. The question is that clause 4 stand part.

Thank you, Madam Chair. I look forward to asking some questions of the Minister on this clause. Some of them I’ve signalled because they do also tie to commencement, but it really is about identifying the legislative gap here and why we need this as a solution. I have gone back a few times now and read section 9 of the existing Defence Act. My read of this section is that the legislators at the time foresaw circumstances such as the Minister describes, and this is why there are no restrictions on the powers under section 9(2), which is that the “Armed Forces shall be used to provide any public service in connection with an industrial dispute except in accordance with the written authority of the Minister, and that authority shall specify the part or parts of the Armed Forces that may be used and the public service or public services that may be provided.”, and also, importantly, subsection (4): this is where the Prime Minister or, if the Prime Minister is not available, the next most senior Minister, on available information that they’re satisfied with from the Commissioner of Police, they may instruct, essentially, the Defence Force to work with the New Zealand Police, in emergency circumstances.

All of us, of course, would want that power to exist. The defence forces are different from other parts of our workforce, and they absolutely deserve respect, but we acknowledge that there may be circumstances, such as those described in existing section 9(2) and existing section 9(4), where the Minister or the Prime Minister may need to give an authorisation that changes that. But I think that the legislators at the time foresaw that this may need to happen in quick succession or at multiple times. The check on whether that’s legitimate is, essentially, that period of 14 days, and that requires a Minister or the Prime Minister to turn their minds to whether it’s appropriate or not.

This is a really crucial function of our executive: the way in which they exercise their discretion. Actually, it feeds an entire, quite a large-ish group of lawyers’ work in New Zealand: public lawyers, who look at the use of discretionary power and, from time to time, will bring judicial review cases, not on the substance of a decision made but on whether particular Ministers or decision makers turn their minds to the things that they ought to have before making that decision. It’s a signal that, again, the right to strike is important. My view is that this was foreseen in the current legislation and it is already provided for.

Again, I’m just trying to understand whether there are administrative issues that I can’t see, which, if there are, the next question after that is: do they outweigh the right to protest and the right to fair consideration, that those employed in these civilian roles hold within our defence system? So simply that there is administrative delay would, to my mind, not be sufficient to say that we should then extend the period to 30 days. I imagine that the Minister, if a circumstance like this arose, would have a fair warning that there might be an expiry in the period—as we do now, in fact, heading into the Christmas period—so an assessment could be made before the actual expiration of the first authorisation in time for the Minister to, with due diligence, consider the circumstances and whether the second authorisation was needed over a period, and, also, take some advice about how far that second authorisation would get us and whether the House was likely to be sitting again or to resume at that period in time.

Thank you, Madam Chair. Just following on from Vanushi Walters, I want to ask a question of the Minister regarding clause 4(1). In the current drafting of section 9(8) of the Defence Act 1990, both subsections (2) and (4)—one of them pertaining to the Prime Minister or a senior Minister and one of them to the Minister in the chair, the Minister of Defence. What I don’t understand is why only the subsection (2) authority has been extended from 14 days to 30 days but not subsection (4). Presumably, the Prime Minister will have even greater power, or should be warranted, compared to the Minister of Defence. My first question is why only one of them was increased.

But also, I think my second question is that the purpose of the bill and the intention of the bill, as the Minister stated in some of the earlier debates, is to address the instances where the House is not sitting during the holiday period, and, therefore, if the Minister isn’t able to do what is needed in the event of a strike, for example, then the House needs to be recalled to be able to make that decision, but I don’t see how that relates to the 30 days, because the scenario that the Minister has referred to is covered under subsection (2). The only other thing I can think of is that it’s more of an unchecked—and I don’t know if it is, so the Minister can correct me—extension of the Minister’s power under subsection (2) from 14 days to 30 days, with no real, I guess, logical purpose for this extension, as addressed by the issue statement of this bill in the first place.

Those are my two questions for the Minister. I guess the first one is: why is it that only subsection (2) has been extended to 30 days? The other one is: considering it’s addressed in subclause (2) of clause 4 already, is there any need for us to extend it to 30 days in the first place? We do have an amendment under my name to revert the date from 30 days back to 14, and I would like to ask the Minister to consider that amendment, unless the Minister is able to provide a response to my questions.

Thank you, Madam Chair. Speaking to this particular clause, one of the things that I’m always aware of with the New Zealand Defence Force (NZDF) are, sort of, plan B strategies: something to make sure that there are fallback positions to allow the continuation of much of the work that they do. One of those is, of course, that the commander in chief, or in this case the Governor-General, has the opportunity to extend a number of matters—not just for the NZDF, but, ultimately, has the power in many circumstances to be able to just go on and extend matters to allow to consider it a plan B for some of the occasions when the House might not be sitting.

In fact, it was only last week at the Armistice Day, the Remembrance Day commemoration at Pukeahu, that the Governor-General was introduced as the commander in chief, which, of course, whether it’s in title alone—but it means that it comes with the responsibility of our New Zealand Defence Force and the ability to extend these matters until, at least, the House does sit.

There are a number of amendments that have been put forward in the name of my colleague Vanushi Walters. I have a couple there, too, with respect to clause 4. One of those is that there is no need for the changes that are being proposed by the Minister because of that contingency plan, whereby the commander in chief, in this case the Governor-General, can, in her power, extend these powers anyway until at least the House comes back.

Now, the only period where there are 30 days where the House isn’t sitting is through the Christmas period. I’ve looked through all the sitting calendars over the past few years and the only other time where it gets quite long is usually around July where there’s a three-week break, maybe even a four-week break, but that’s not 30 days.

Tim van de Molen: What about an election?

Hon PEENI HENARE: That’s not 30 days. I hear from the other side there, “What about an election?” Well, there are still caretaker powers for a Government up until the time that a Government is actually put into place. I know that—I know that.

Tim van de Molen: But the House doesn’t sit.

Hon PEENI HENARE: I know that, but there are still provisions in the Defence Act that, actually, as Dr Lawrence Xu-Nan has already pointed out, the Prime Minister can still do that; the Governor-General can still do that. The Governor-General doesn’t change at the same time as the elections; it doesn’t change the same time as the Government. There’s a reason why continuity happens that way.

There are a number of amendments there that we put forward to the Minister for her consideration. One of those is in my name, where we look towards a middle ground, if you will, from Dr Lawrence Xu-Nan, whose amendment proposes going to 14 days. Of course, the Minister wants to do 30 days. I say, why don’t we meet in the middle? Why don’t we just call it three weeks and call it 21 days? That’s a good, I think, safe place and a safe option, while remembering that we still have these contingency plans or plan Bs or reserve action plan that has the continuity or has the ability to make sure that there is continuity in these particular matters.

The other part too is, to my point in my amendment, and to support the words of my colleague Vanushi Walters: actually, what’s being proposed here by the Minister in this particular bill in clause 4 is just simply not needed. They’re just simply not needed. There are enough contingency plans to make sure that there is continuity in these matters. There’s an amendment there in my name that says, actually, we should just forget what’s being proposed here by the Minister and this Government in clause 4 and simply just delete what they’re proposing, because it’s just not needed.

The questions there are pretty straightforward to the Minister. That is about the commander in chief and their ability to make sure that there is continuity, regardless of whether or not the House is sitting. The other matter is, of course—because it was raised by National backbench MPs—what about if there’s an election? I wonder if the Minister has a view on whether or not the Government, or a Government, an executive, still has the provisional powers up until a new Government is elected—of course, on a no-surprises basis. Then the other part is the question about whether or not the Minister would consider bringing that into a sort of middle ground of 21 days for her consideration.

Thank you, Madam Chair. I think there are some good questions in there, which I’m happy to answer. To the question on why only section 9(2) is extended—by new section 9(9), inserted by clause 4(2)—rather than section 9(4): well, section 9(4) stays the same for the use of supporting the police during a serious emergency—for example, a terrorism emergency—because we just don’t get notice of that stuff, normally, and so we have to deal with it straight away. These provisions are for a different purpose and are not amended by this bill, because this bill deals with other situations.

Why are we changing the expiry of an authorisation in relation to Public Service employees outside the New Zealand Defence Force (NZDF) from 14 days to 30 days—that was the question that was pretty much asked? Well, it’s a practical and pragmatic change. The 14-day expiry is no longer fit for purpose in the context of present-day industrial action. Since the introduction of the Employment Relations Act 2000, industrial action has become a last-resort measure that occurs only when there has been a significant breakdown in negotiations, which can mean a longer strike. Modern industrial action—including practices of work to rule, or partial strike—mean that industrial action is now more likely to last longer than 14 days, and so any associated authorisation for military personnel to conduct the work of striking staff is more likely to require an extension.

Certainly, I can remember when the military had to be called in to run the prisons after strikes, and I don’t think that too many people would think that letting our most violent offenders free in the prisons, or to leave them without getting food or exercise or anything else, would be a good idea. We do need to be aware of that. I consider that 30 days is a reasonable period for which the Minister of Defence may authorise military personnel to conduct the work of Public Service employees outside of the NZDF.

Another question was: could an assessment be made before the need for an authorisation arose, to anticipate a recess of Parliament? Well, if the requirements of the bill were not met, an authorisation could not be made. It’s not just, “We’re coming up to a recess. Let’s all have this provision in place.”, because all these other things have to happen, and it would not be appropriate to grant an authorisation in anticipation as the requirements would not yet have been met, and these decisions are not made by the Minister of Defence—either myself, or those who have gone before and those who will, in the future, come after me—based on a gut feel or a reckon. They’re taken on very strict legal advice, and they’re actually done at the request of the Chief of Defence Force.

There has been some suggestion that the Government is pushing this through. This bill is not something that we—it’s not on our mandate and it’s not something that we campaigned on. The reason is that the issue has arisen at the request of the Chief of Defence Force. It’s the Chief of Defence Force—the actual operational person in charge of everything Defence Force—who needs to have this done. It’s not some will of mine to go round making up some authorisations or anything, and no Minister of Defence wants to have to do that. It’s a fact that it’s an actual need that’s been found to be there, and it’s being addressed.

As for bringing in the Governor-General to make rulings on all this, I think it’s always best to actually try not to politicise the Governor-General or her role. I think that it’s incredibly important that Governors-General are able to undertake their constitutional role without us trying to put them in a difficult position and politicise them.

Thank you, Madam Chair, and thank you to the Minister for those responses, which I found very illuminating, particularly the point around partial strikes. I think the Minister put it exactly the way a number of members in this Chamber have put it around the reasons why you need to retain partial strikes: because it gives an avenue for people to be able to express themselves.

For those who don’t know what a partial strike is—which you can no longer do without getting pinged—it’s like, for example, if you’ve got a T-shirt with a slogan on it or you do something just to make your point, to allow you to have some sort of political expression. I wonder if the Minister would be interested in looking at an amendment that would allow partial strikes in this case, as well.

I ask that because we have a particular, unique situation with the workforce in the defence sector, as well, where you have military personnel and you have civilian personnel. If you’re military personnel, you sign up for that. You take your orders, and you go through and there’s a hierarchy, but there are certain things you can’t do if you’re a military person. You can’t go on strike. You can’t do partial strikes. You can’t do those sorts of things, because that’s what you sign up for. But working alongside them are 3,000 civilian workers. Amongst those, the last time I heard, were a thousand of them that are unionised. So it’s about 3,000. Maybe it’s decreasing because they’re jumping on a plane and going over to Australia—and it seems to be a lot of people.

But I think there’s a good argument here, and I find myself agreeing with the Minister in terms of the ability to have a partial strike to allow people to express themselves and have that point, as well, because, as the Minister was saying earlier, the reason why we’re turning towards the 30 days or 14 days and so forth is because of the likelihood of stronger industrial action, because that is the only pathway forward. That is one of the only things that people can do. So all of this bill is around trying to respond to the situation that happened last year, in 2024, which was the impact on those workers who, as was their right, were organising themselves to take industrial action, to strike. And so we are here debating this bill.

My question is: will the Minister consider, given the unique situation of the workers within the defence sector, an amendment that would allow partial strikes as part of this bill? If not, could the Minister provide a rationale as to why, given that this is a very particular situation? It’s a new situation, as well, and there needs to be a way for these workers to be able to find a way to express themselves—remembering that when they took the original action, the offer was zero pay rise. So workers are frustrated that the only way they can find a way to express themselves was to strike. But I think a partial strike, I think, would allow them to, I don’t know, take the steam off a bit. So will the Minister entertain an amendment that would allow partial strikes as a part of this bill?

Vanushi Walters was up first.

Thank you, Madam Chair. I’ve had lots of coffee this morning, and thank you to the Minister for her responses thus far. I have a proposal for the Minister of Defence to consider on the basis of her answers. A colleague has asked the question about why clause 4, section 9 amended, remains at 14 days versus this one shifting, and the response is there’s a need. Yes, I see that response. However, I think the fact that subsection (4) remains at 14 days shows us that there’s a recognition that there should be ministerial oversight when these decisions are made, in terms of the Defence Force contributing to the police’s actions.

I’m trying to work out whether there’s a way through the middle to allow that oversight to happen rather than just extend it to the 30 days. I mean, my first question would be: what is the background in terms of understanding how that number was arrived at and what’s the logic of getting from 14 to 30? And, if possible, what are the specific situations that have given rise to that number—appreciating that where we have senior people in those roles on the ground who understand what’s happening, we absolutely should be paying attention to the circumstances that they say present?

The proposal: I’ve already spoken about a second authorisation being possible. We acknowledge that is possible. I’m not yet sure that there’s sufficient administrative burden to prevent that being the best route for us to continue to have in place. However, is there a way in which we could write into the Defence Act the ability of the Minister to approve the continuation of a first authorisation on the Minister’s affirmation that the circumstances continue to exist where such authorisation is appropriate? I’m just saying that to have eyes across an ongoing situation is important. We’ve acknowledged that in subsection (4), and there’s a middle ground which potentially could minimise some of the administrative burden of requiring a second authorisation to be prepared and legal advice to be provided on that and truly robust scrutiny to be given, but some level of oversight from the Minister could be written into the statute. That seems like something that’s worth considering.

I mean, briefly going back to the first thing of the second authorisation, if we were to make this change and we got to day 29 and for some reason Parliament couldn’t sit within that period, I imagine that the Minister at that stage would send through a second authorisation if needed, and so would use that power that I’m saying could just be used during the summer break period, regardless.

My second question was just taking further a point that the Hon Peeni Henare raised about caretaker powers. My read of current section 9(8)(b) of the Principal Act is that precludes the ability of the Minister of Defence and a caretaker Government, post-election, to be able to use the powers of authorisation. I just thought for clarity’s sake it would be useful to get the Minister’s view of whether that is her understanding of the read of that section, or whether post an election, a Minister of Defence could use the powers—and, actually, a Prime Minister, as well—under section 9(2) or 9(4) in a case of an emergency; or whether it would only be, at that stage, a proclamation from the Governor-General that could put in place a measure like that.

The reason I’m interested is I think that our Parliament is a very different place in an MMP world. Right now in the Justice Committee, we’re wrangling the difficult question of a rising number of specials and keeping within the period of the writ. We don’t talk as much about the period taken to form coalitions, but we’ve certainly seen periods in our past where it has taken far longer to form a coalition Government. The rules around caretaker Governments, in my view, are quite loose. There’s a sense that the term “caretaker Government” means one thing when, in terms of democracy, it should truly be parcelled up into very separate forms of legitimacy that various Governments get, whether they’re before the election period versus when they’re after—so just some clarification sought from the Minister.

I move, That debate on this question now close.

Vanushi Walters’ two tabled amendments to delete clause 4 are out of order as being a direct negation of the question.

The question is that the Hon Peeni Henare’s tabled amendment to clause 4 replacing “30 days” with “21 days” in subclause (1) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4 replacing “30 days” with “14 days” in subclause (1) be agreed to.

The question is that Vanushi Walters’ tabled amendment to clause 4 replacing subclause (1) be agreed to.

The question is that the Hon Peeni Henare’s tabled amendment to delete subclause (2) of clause 4 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4(2) amending new section 9(9) be agreed to.