Regulatory Standards Bill

Members, the House is in committee for further consideration of the Regulatory Standards Bill. When we were last considering the bill, we had just completed the debate on Part 2. We now come to Part 3. Part 3 is the debate on clauses 41 to 47, “Regulatory reviews and information-gathering powers”.

Madam Speaker, first of all, I thank you, the other presiding officers, and members for their engagement on this bill so far.

Part 3 is a relatively simple part of the bill. It sets out provisions for the Ministry for Regulation to carry out regulatory reviews, that is, backward-looking evaluations of the stock of laws that the Parliament has previously made or allowed. It then goes on to set out how the ministry—the regulatory standards ministry, that is—should go about reviewing a regulatory system, or rather its responsibility to present a report to the Minister on any review it does, and subsequently for the Minister to present that to the House of Representatives.

It goes on, in a series of clauses, to set out powers for the Ministry for Regulation as a central agency to require information to be shared by Government agencies in the course of preparing briefings for regulatory management, which is a procedure that’s been described earlier in Part 2; also, for giving information on regulatory reviews, such as asking for information from Government agencies. It then sets out a series of limitations on that power to request information, noting, for example, in clause 44 that it cannot demand information from the House of Representatives, an Office of Parliament, the Clerk, or the Parliamentary Service. It also goes on to say that it cannot require information from non - Public Service agencies, or at least has restrictions on that; and, finally, that it cannot require information from a person who is contracted to a Government agency.

It concludes—the bill, or at least this part—with the consequences of failing to comply with a notice issued by the regulatory standards ministry to provide information, and it provides that a court may make an order if the court believes it’s necessary or desirable to enable the regulatory standards ministry to review a regulatory system to which any legislation relates. It has a role for the court at the very end if there is a dispute over providing information to allow the Ministry for Regulation, as a central agency, to do its job, both preparing reports and also carrying out regulatory reviews into existing regulatory systems. I hope that will make clear that the purpose of this—it’s really quite a straightforward purpose, with a series of exemptions and conditions for using that power for that purpose.

Thank you, Mr Chair. I thought I heard the Minister for Regulation say that a person who is a contractor couldn’t be asked for information. I might have misheard that but, if I didn’t, that isn’t how I read the Act. But that’s not really where I want to start.

Where I want to start is around why we need this part at all, because the ministry has actually undertaken a number of regulatory reviews already, and the idea that one ministry whose job it is to undertake regulatory reviews—the Ministry for Regulation—needs a special statutory power to ask another agency for information about the regulations that are being administered seems truly extraordinary. That kind of interaction between ministries can be dealt with entirely by Ministers and, if necessary, by Cabinet minutes. So why on earth we need this, I seriously don’t know.

The other thing is this: it’s actually really intrusive. You’re asking about how a regulation works and you have a sweeping, or a largely unconstrained power. The only constraint on it is that it’s for the purpose, if necessary or desirable—or whatever the exact words are—of undertaking a regulatory review. So it’s entirely conceivable that you might want to look at complaints information which contains personal information, or any other number of kinds of information which ought not readily be shared between departments. So it’s funny that you’ve got the first half of the bill saying it is to protect liberties and rights—presumably, including the right to privacy—and then Part 3 of the bill says “Forget about that. If we’re undertaking a review, we should be able to embark on a sweeping inquiry. A bit of a Star Chamber inquiry, where we can look at, essentially, whatever we like.”

I guess that’s why in my amendment—and there’s a few of them here—that I lodged on 4 November at 12.08 p.m., I suggest that there should actually be some further constraints, and there are a couple of constraints. One is the obligation—because in these regulatory reviews, you’ve got all this information-gathering power and no direction as to how the reviews themselves should be conducted.

So there’s a couple of points there. First, which is the obvious one: consult with affected stakeholders. It’s all very nice to do a review, whether it be on farrowing crates or otherwise, and consult with farmers, but not animal welfare groups. So all affected stakeholders should be consulted. The other one, of course, is that when you’re undertaking a review—particularly one that touches on things to do with Māori—you should take into account the principles of the Treaty of Waitangi. Now, that’s a pretty standard thing, and I would have thought that would have been a really easy and reasonable thing to do.

It might be that the Minister, or his officials, have some better and further rules about what it actually means to undertake a review and what it should look like, because it’s all very nice to say that “You do a review, and here’s information-gathering powers.”, but to give some procedural rules about what a review is, what its purposes are, and what its extent is would be very useful, as well. That’s why I’ve got that amendment in—but, on reflection, perhaps it doesn’t go quite as far as it should. But I’d be very interested in the Minister’s observations as to (a) why this is needed, (b) what the constraints on intrusion are, and (c) what, in particular, constraints there are on what is reviewed; how and why and when.

Thank you, Mr Chair. I have a few questions for the Minister for Regulation regarding Part 3, but I think I want to start by asking a broader question around clause 41 regarding regulatory review reports. It’s, again, looking at the report and briefing from the Regulations Review Committee. I still have some concerns over the potential overlap between the work that is being done by the Regulatory Standards Board and also the Regulations Review Committee. There are a couple of things, if the Minister wouldn’t mind sort of clarifying. My understanding is that the Regulatory Standards Board covers primary and secondary legislation, whereas the Regulatory Review Committee covers only secondary legislation, so I’ll be approaching this only from the context of secondary legislation.

What sorts of instances can the Minister foresee where there is a partial or complete overlap between the function of the Regulatory Standards Board and that of the Regulations Review Committee? When that does happen, how does the Minister foresee that engagement between the board and the committee on matters such as this? Additionally, what happens. Then, when the review done by the Regulatory Standards Board and the review done by the Regulations Review Committee do not necessarily overlap or align? What are the mechanisms there for the two groups to come together? That’s my first series of questions regarding the two, and I’m sure that others who have been on the Regulations Review Committee much longer than I have may also have additional questions for the Minister regarding that.

I want to continue on with looking at clause 41(2), which is talking about “reasonably practicable after completing the review”. I just want to check: what, then, would the Minister, in this case—because they have to give it to the regulatory standards Minister—be expecting when we are looking at “reasonably practicable”?

I guess that the next question that I have for the Minister is when we are looking at—let’s say, I’m going to ask the last few questions, but I’m going to just focus now on clause 42(1). I think that this is something that submitters have raised concerns around, which is the scope of power when you’re looking at “The chief executive of the regulatory standards ministry may, by a written notice, require”. Is that requirement then mandatory, again, to fulfil? I guess, in a way, that consists of centralisation of power, particularly—unlike the Regulations Review Committee, which is a Parliament committee—that this is solely within the one ministry, and no ministry or agency has that kind of power to expect or to require information from others, as far as I know of. The Minister may have other advice on that, but I do want to know what the scope of the term is when you are looking at “require”.

The first series of questions is around the interaction between the Regulatory Standards Board, in the context of clause 41 in Part 3, and the Regulations Review Committee. What does the Minister consider to be “reasonably practicable”, and also what is the scope of “require” in clause 42(1)?

Mr Chair, I usually try and take four or five questions or speeches before replying, but I just feel I should get up now.

The Hon Duncan Webb makes the point—he asked why is this statutory power necessary when Cabinet minutes could issue directions for departments to share information with each other? One answer for that is that actually Cabinet has decided to introduce this legislation and express its will this way if Parliament agrees. The second, which also answers Dr Lawrence Xu-Nan’s question, is actually the Treasury does have very similar powers in relation to public finances. So it’s also not unusual for a Government to ask the Parliament to pass such a law to administer the interactions between its own departments. This is another example of that.

The amendments from Dr Duncan Webb suggesting that there should be more consultation or the Treaty of Waitangi should be taken account of, when one Government department decides to use its power to ask another department for a purpose which is set out in clause 16, which we debated in Part 2 earlier. It’s not clear what benefits that Duncan Webb thinks we would get from that, and the Government is not interested in adopting the amendments that he has proposed. So we won’t be doing that.

He suggests that there should be limits on powers. Again, I don’t want to be repetitive, but clause 16 sets out the purpose of requesting this information, and clause 44, 45, and 46 all begin with the word “restriction”. They set out the restrictions that are placed on the use of these powers. So we’ve actually already put quite a lot of thought into how we restrict the use of these information-gathering powers.

Dr Lawrence Xu-Nan asked at some length about the interaction of the Regulatory Standards Board with the Regulation Review Committee. I would just refer him to the extensive debate that we had on Part 2 where that issue was covered in some depth. I’m not sure that it’s relevant to quite a different issue here, which is the ministry’s ability to request information from other departments.

Then he asked about clause 41, subclause (2): what does “reasonably practicable” mean? This is a term that appears throughout the statute book, throughout Government papers, and what it means is exactly what it means. Is it reasonable to think that a person could do this thing? If there are clear reasons why they couldn’t, it’s not reasonably practicable. If there are no good reasons why you couldn’t do it, then it is reasonably practicable. This is something that I think people can work out without me needing to talk about it more in the House.

Finally, he asked about clause 42(1). Again, I’ve addressed that; see clause 16 for the purpose of doing this. There was a final point—oh, sorry, I’m struggling to read my own writing, but he said no other ministry has this power. Well, actually the Public Finance Act gives the Treasury—and he’s now nodding. He knew that already when he asked the question. So I think we’re there. Thank you.

Thank you, Mr Chair. Thank you for that discussion on the overall purposes of Part 3 and clause 41. I wanted to turn to clause 42, which gives the chief executive of the Ministry for Regulation the power to require an agency to supply information. One of the things we’ve heard throughout this debate is concerns around the costs of that. But also when we look at this, it’s a largely unconstrained power. Most notices to produce generally have things, particularly dates. So the notice “must state the date by which, and the manner in which, the information must be provided”. Now, I’m hopeful that our Government departments and the Ministry for Regulation will be reasonable and give a significant period of time, but it doesn’t say that, right, or in the manner in which it must be provided.

So, you know, we’ve all got Official Information Act responses saying, “That’s going to take far too long to collate and we’re not putting that in a spreadsheet for you, so we’re not going to provide that information.” There’s no such power to decline here.

Now, that’s my view in my Amendment Paper—filed on 4 November at 12 p.m. and nine seconds—and it outlines at least some constraints on that. It requires the chief executive, in making a request under clause 42(1), to take into account the costs of the agency providing that information and whether the request is, in all of the circumstances, reasonable. So it’s a balancing exercise because the danger is—of course, this is classic poor regulation—that there’s no costs on the Ministry for Regulation and asking for the information. They don’t have to pay for it and there’s all the costs on the other agency who is obliged to comply. Now, we do expect our public servants to act reasonably, but the incentives there go in all the wrong directions.

So, that’s why I have suggested that there is some constraint and that you can at least have a discussion and say that the request is unreasonable because we can’t tabulate—because this is the manner in which the information must be provided: “So please provide a tabulated spreadsheet of all of the instances of prosecutions, the provisions under which it was prosecuted, and the penalties imposed.” Now, if you do that for, I don’t know, the Ministry of Primary Industries, it’s going to be months and months of work, and if it says that it would like that by next week, all of a sudden you’re putting entirely unreasonable demands on your Public Service. So there’s two things. One is that the date and time frame should be prescribed. You shouldn’t just have it that the Ministry for Regulation can absolutely make up its own mind. The second thing is it’s got to be reasonable. It’s got to be something which isn’t unduly onerous.

Now, there’s actually an argument to say that if you’re going to do this, the cost of it should be funded or one ministry should have to pay the other ministry for the costs of compliance, but a lot of that is captured simply by the concept of reasonableness that I’ve proposed in proposed clause 44(5)—that is, that the request is, in all of the circumstances, reasonable.

The other thing we’ve got here is this: there’s no tiebreaker. In legal matters, the tiebreaker is the Crown Law Office. If two departments disagree about the law, they don’t go to court and sue each other, they go to the Crown Law Office who says, “Look, here’s the legal position and here’s our”—essentially—“adjudication on this matter.” If there’s a scrap going on between the Ministry for Regulation and a department, who’s the tiebreaker? What is the procedure here? Because you’re going to need a dispute resolution procedure, and you don’t want relationships within the Public Service to come to breaking point because either a department’s unreasonably refusing information or the other department is unreasonably demanding information. So that’s a pretty expansive power and I’m very surprised that it isn’t limited in some way. The Minister’s comments would be welcome.

I will give some very quick answers. I just note the last two contributions by Dr Duncan Webb. In the first one, he said that really none of these powers is necessary because it can be sorted out amongst Cabinet Ministers. I made the point that Cabinet has a general view and hopes the Parliament will pass a law reflecting the general view that this central agency should have power to request information. Now, Duncan Webb is saying that the Ministry for Regulation will abuse this power and run unfettered, as though he’s forgotten that only a few minutes ago he was saying that of course departments are responsible to Ministers who can sort out matters amongst themselves back in Cabinet.

So it is possible for Cabinet and Parliament to give a general direction, but also Ministers who are responsible and who are colleagues in Cabinet to moderate the use of that power. Therefore, we don’t have an interest in adopting any Opposition amendments as Government amendments in this area.

Thank you, Mr Chair. I’m just wanting to seek a quick call, at this stage, just to ask questions about two things. The first is the interaction between clause 41(1)—and I acknowledge I’m asking information around 41(1) in relation to an earlier clause, but I do want some guidance from the Minister for Regulation on this. Clause 41(1) states “This section applies when the regulatory standards Ministry reviews (in whole or in part) any regulatory system to which any legislation relates.” I just wanted to check that clause 6A(1) earlier in the piece still applies, so that 41(1) does not actually, in fact, refer to “any” regulatory system and “any” legislation that it might relate to; that it still excludes the items that the bill says that it excludes under Schedule 1A. So I’m just checking that this part of the bill doesn’t trump the earlier clauses of the bill.

My second question is specifically around clause 42(1), but it’s also a broader question because I know that the bill uses similar language in this clause, which is the phrase “necessary or desirable”. Why has the scope been expanded to such a wide extent? I mean, I understand “necessary”, but “desirable” seems to widen that up quite substantially.

I guess, related to that point: is there any intention to build privacy safeguards into this bill so that personal information isn’t unnecessarily being hoovered up into this? Because it does confer quite sweeping powers. The chief executive of the regulatory standards ministry could simply deem it as “desirable” or “necessary”, and then request potential information.

So I’m just asking those two questions. The first is around whether clause 41(1) trumps the earlier clause 6A(1), or whether clause 6A(1) still stands. The second question is around that language around “necessary or desirable”. Related to that is: what sort of privacy safeguards does the Minister envisage being potentially built into this?

I’ll very quickly answer. I point the member to clause 6A(1), which says “Nothing in this Act”, so clearly, from reading that, the answer to his question is actually in the paper in front of him. Then the question of whether privacy applies; well, of course, if the Ministry for Regulation was to acquire information, it would still be governed by the Privacy Act regardless of whether it got it from this mechanism or any other, so I don’t see why that would change.

Thank you, Mr Chair. I do think this is in an interesting part of the bill, because it’s the most enforceable part, of course, as well. It’s the only one that’s not subject to the provision that we all reflected on earlier in this conversation. But, essentially, the bill’s saying that while you don’t need to comply with the substantive parts of the bill, you must review compliance, so it directs review of compliance, which is quite fascinating, in many ways.

Other members have raised questions about the interaction with Parliament’s Regulations Review Committee. My understanding is the Minister is saying a lot of it is left unsaid here, but he expects that the Minister would pay heed to whatever might be happening in these dual streams that are both potentially operating at the same time. My view—I suspect, as others—is that it would be better if that was specified in the legislation, and potentially within section 41.

I did have a question about what the Minister’s understanding is about the scope of the power of this board to direct or to compel the production of documents and evidence versus the powers that the Regulations Review Committee currently has. Is his understanding that these powers would give this body more scope in terms of what they could obtain either by request or by a High Court order, or that they would be the same?

My colleague has asked a question about “desirable” and the scope of that. I’d just say that I agree with that question, and whether it ought to be narrower. Dr Duncan Webb referred to section 43 and the issue of cost lying with public agencies. There’s also the issue of clause 43(2)(b): that covers “a person that is engaged under a contract with a principal agency to support or facilitate the performance of a function that is imposed under legislation.” So it’s one layer removed, again, and the cost would likely sit with that entity—a contracting entity—and to what extent that the Minister believes it would be fair. I can understand provision for or requirement that the public entity itself must bear those costs. It becomes more complex when we have a contractor who’s sitting underneath that public entity—whether the Minister had considered differentiating between those two so that there are less stringent, or there are more criteria if you were to ask a contractor to provide information, as well.

Dr Duncan Webb has very usefully suggested some language about reasonableness or proximity to the issue that’s being investigated. That seems to make sense to me. That, again, probably speaks to the issue about “necessary” versus “desirable”, but a two-tiered system, in my view, would make sense.

The restriction on giving notice in connection with Parliament: there’s, of course, the listed exclusions there. My understanding—I could be wrong—is that the Office of the Clerk does have some obligations under the Official Information Act, which are different from the other parts of Parliament; and whether the Minister considered that some of these document requirement rules ought to apply to the Office of the Clerk even if they weren’t to apply to the other entities, as well?

Just clarifying, as well, that the Minister’s view is that, if information is passed on, and it does include information that falls under the Privacy Act, that entity would be responsible for notifying the individuals concerned; or is that the Minister’s view that the board would have that obligation under the Privacy Act?

Finally, just asking out of curiosity whether the Minister had considered specifying withholding grounds, as well? So other than the kind of blanket reference to other legislation, whether the Minister considered that there were other grounds that may be a justifiable limit on disclosure—so framing them as withholding grounds as opposed to a threshold, as Dr Duncan Webb has suggested.

Thank you, Mr Chair. I have further questions for the Minister, but I wanted to clarify, I think, two points that the Minister mentioned. First of all, I actually didn’t know that Treasury is one such agency. It was the Minister’s earlier response to the Hon Dr Duncan Webb in the same block of answers that the Minister gave that I was like, “Oh, I did not know that. That’s good to know.”

The second point I was going to make is that the difference between why we are discussing the Regulations Review Committee now as opposed to what was discussed last week is that last week, the report on the briefing on regulatory reform was not publicly available, and it is now publicly available. As a major stakeholder in a lot of these, I thought it was important to address the report that just came out of the Regulations Review Committee. The Regulations Review Committee, in the report, says, “we remain concerned about the constitutional implication of the potential for overlap between the board and our committee.” Last week it was theoretical but now, from the board itself, it’s more concrete.

In terms of my questions, I want to now move on to clause 43 and also clause 44. The first question I have, in terms of clause 43, is around clause 43(2). It’s important that, in the earlier legislation, local government has been sort of alluded to as part of this, where information, for example, could be requested or would need to fulfil certain requirements. I think we talked briefly about one of the schedules around local bills, but I don’t know, unless it fulfils the requirement of, I guess, a Public Service agency or a maker of secondary legislation, perhaps. Would the Minister articulate which of, I guess, subparagraphs (i) to (iv) under clause 43(2)(a) is where local government potentially falls under, because I think that’s potentially quite an important point.

My next question is around clause 43(3), because here it says, “A notice must state the date by which, and the manner in which, the information must be provided.” Now, on the surface, there’s no problem with that. However, there’s no safeguard in terms of what that date potentially could be. The thing is, when there’s no safeguard around the date, it means that the date could be as long or as short as what the chief executive of the regulatory standards ministry may determine. I would like to ask the Minister to consider my amendment on this, which is, rather than saying “the date”, it is “a date” that is reasonably practicable.

Now, the Minister has mentioned previously—thank you for his response to my earlier question on “reasonably practicable” as something that is consistently used throughout this bill. I will ask the Minister to seriously consider this amendment, because I think something like that would provide just enough safeguards. That way, agencies or a maker of secondary legislation or anyone isn’t going to be frantically trying to gather information because the regulatory standards ministry decided arbitrarily that the date is two days, without any specific requirement or consideration for the scope of what they’re asking.

My final question is around clause 44(b), which is around the definition of an Office of Parliament. Now, I did have a look at the Public Finance Act 1989 and Office of Parliament is specifically limited to the Ombudsman, the Controller and Auditor-General, and the Commissioner for the Environment. However, it doesn’t include other things like, for example, the Commissioner of Mana Mokopuna, etc.

Now, the reason I mention some of these commissioners is very specific and potentially quite niche. Under certain international requirements—and I’m thinking of OPCAT, which is the Optional Protocol to the Convention against Torture—there are five national preventative mechanisms that we have here in Aotearoa. Now, the Ombudsman is one of them, but there are another four. I wanted to check whether there should be a restriction being placed on the other four national preventative mechanisms that allows for this sort of exemption on giving notice in connection with Parliament, because of the fact that they fulfil a very specific and very important role under international convention. Those are my three questions, on clauses 43(2), 43(3), and 44(b).

Thank you, Mr Chair. Just taking Dr Lawrence Xu-Nan’s questions first, the Regulatory Review Committee’s report may well have been released since we last met on this topic. However, there will be commentary, including from parliamentary committees, on this legislation and matters that it affects for a long time, I suspect. I would still point to the debate that we’ve had quite extensively over that overlap.

The question of where local government fits: under clause 43(2)(a), it could be either subparagraph (ii) or subparagraph (iii). A local government can be an administrator of secondary legislation—by-laws are secondary legislation—but also a maker of that because by-laws are secondary legislation under the Legislation Act.

In terms of the date amendment for what is reasonably practicable, the Government will not adopt that amendment, for the simple reason that “reasonably practicable” is a term in good use that is well understood within Government administration. Making dates, actually, in a way, adds additional complication because they can be seen as arbitrary and then you have to argue about whether the date was reasonable, rather than just saying the time that it’s done should be reasonably practicable.

Then there was a question of whether there should be exemptions for other “preventative mechanisms”; that was under clause 44(b). In my view, the purpose of this exemption for Parliament and its various Officers is simply to ensure that the sovereignty of Parliament is not in any way affected by this law. I have been very clear through all of this that the purpose of the law is to increase the accountability of the executive to Parliament, not to undermine Parliament’s sovereignty. Having achieved that purpose, we wouldn’t go further. You could argue that the Clerk of the House should be exempted from the exemption, or not exempted. However, the Clerk of the House is not really a regulator that puts restrictions on how New Zealanders live their lives. He’s an official within Parliament, so I don’t think there’s any problem with him being exempted from the Ministry for Regulation’s use of these powers.

Vanushi Walters asked about the power of the committee vis-à-vis the Regulations Review Committee. These powers technically aren’t vested in the Regulatory Standards Board but, rather, the ministry, although it is true that the ministry does act as a form of secretariat to the board. Regardless, her question was about the power of a select committee, which has all of Parliament’s privileges, versus a committee with statutory powers that might be upheld by a court. I’m sure she would probably know more about the comparative powers of those than I would, but, suffice to say, they’re both things that people in general should follow and observe.

She asked about clause 43(2)(b). This is the idea of a person who has a contract with a principal agency and the question of, well, if you contract, should you be exempt or included as if you were a central agency yourself? Should you have to provide information in these cases? I think, first of all, it’s important to say that it’s only if they are performing a function that is imposed under legislation. What we have in mind is a regulatory function there. Second of all, I’d just go back to the point I’ve made a few times now that these powers can be used only for the purpose of carrying out a sector or a regulatory review or compiling a report on the state of regulatory systems. By the time you have that specific purpose for using the powers at all, and the limitation to people who carry out a function, then I think you find that power is a bit more circumscribed than it might seem.

Finally, there was a question of the Privacy Act: should an agency notify someone that the information has been requested? Again, this doesn’t alter the obligations that any agency has under the Privacy Act. The information is not leaving the public sector. It is still with an agency that has the same obligations as the agency that originally had it. I wouldn’t view there as being a need for a notification in that sense, because the Ministry for Regulation is part of the public sector. The Privacy Act is applicable, so it’s not material that it’s with a different agency.

Thank you, Mr Chair. I’ll just whip through a few of my Amendment Papers. Some of the issues have been raised, so I don’t want to dwell on them, and then I’ll get to some material around clause 44.

It is interesting: the Minister seemed to suggest that there weren’t going to be many private agencies that administer regulations. As I thought about that, I thought of Serco, that administers a prison, which is just a raft of regulations. If the ministry were to inquire into how the regulations around prisons worked, and asked Serco to provide reports on all of its investigations, inquiries, complaints, and what have you, at no cost, that would, essentially, be rewriting the contract with Serco, which is an unusual thing for the ACT Party to advocate. That’s why my Amendment Paper, essentially, does a little contractual amendment. It allows for a private agency, a contractor, to charge a reasonable cost because it would seem to me that it’s not good form for Parliament to impair the property rights conferred by contract and require them to supply information which wasn’t previously required.

In terms of clause 43 and the time limits, my suggestion, in another Amendment Paper, filed on 4 November at 12.20 p.m., is simply to say “within 20 working days”, which is the Official Information Act (OIA) framework. I think it would be really useful to have that guidance. I’ll skip over that one because it’s being talked about. The other thing is this: I’ve proposed in clause 43 to insert a new subclause (2A), which says the chief executive of the regulatory standards ministry may exercise the power under section 43 only if it is consistent with the right to be secure against unreasonable search or seizure, whether it’s a person, or property, or correspondence, or otherwise—because this is a search power; let’s get it right—particularly if it’s a private agency. This is a power to demand the production of private information. It might be that it’s done in the discharge of a contract, and it might be that it’s done in the discharge of a statutory power, but it’s a search. Let’s be upfront about this. This amounts to a search and there’s no rights analysis here of the balancing of privacy, the right to freedom from an arbitrary search, and the right to demand this information.

I wanted to turn to clause 44, which is the exclusions. There’s two questions I have. The first is actually just about exclusions generally, if this doesn’t affect the general law. This is a very clear question, and it is this: are OIA grounds for refusal under this power? They fall into two categories: absolute, national security being the archetype; and kind of not absolute, which are things like privacy, commercial interests—too expensive to collate. So do those grounds apply here?

That’s the kind of general exclusion question. The particular exclusion question goes to two other classes of people. One is members of Parliament. Now, as members of Parliament, we may not be an agency, but nevertheless we are part of this institution which has regulatory powers. If we’re excluding the House of Representatives, which I struggle to see how it’s an agency as well, actually, shouldn’t we be excluding members of Parliament?

The other one, which I’m surprised isn’t in there because it kind of smacks you right between the eyes when you think about it, is the Governor-General—the regulator-in-chief—who actually passes and, by executive order, authorises almost all of these regulations. Why isn’t the Governor-General exempt from the power in terms of her, or his, information around how regulation works and how regulation-making powers are exercised, in particular? This might be interesting information, but in terms of the Crown prerogative and her being the domestic embodiment of the Sovereign, that would be a very unusual thing indeed.

So a few issues there. Interested in your views on the power to charge, if you’re Serco, but also the exclusions, I think, are an important part.

Thank you, Madam Chair, and thank you to the Minister for Regulation for those initial responses. I am a little bit concerned about his response to the question about third-party notifications. My understanding would be that there is a notification requirement; I’m trying to think of the Privacy Act changes that have gone all the way through the House.

CHAIRPERSON (Maureen Pugh): Which clause is the member referring to, please?

VANUSHI WALTERS: Sorry. So this is third-party notifications—where was I? So it’s the power to obtain information to enable the review, so it really connects to clause 43, but also connects to clause 45, restrictions on requiring information from non - public service agencies—so individuals—and clause 43(2)(b) was the one I was specifically referring to, where a person is engaged under the contract. The Minister’s comment was that because it would be across the public service, the information wouldn’t be shared outside of public entities. However, my understanding of the changes to the Privacy Act is that a notification would still be required. I was just making the point that there’s obviously a cost associated with that as well. So I’m just asking whether that is intended that this would be an additional burden and cost that’s put on those entities as well?

In terms of a clause 46, I just wanted to know whether it was the Minister’s intention to include former contractors? This is something I was thinking about in terms of what the Regulations Review Committee could do, because it can, obviously, look at any regulation-making power, and could look at situations where an entity had been contracted to deliver a service, but then that contract had ended and a new contract had begun. The parliamentary committee could easily look at the former contract as well. My question was around whether it was the Minister’s intent for the board not to be able to look at a former contract, and, if so, what the rationale for that was.

But also, the trigger for enabling a person who’s engaged under a contract to have information sought from them seems to me to be a little unusual. So in clause 46(2)(a), one of the options is that the principal agency has been asked to supply the information, but has been unable to supply the information within a reasonable time. I guess I’m just worried that if you have a department that’s dragging its heels, or for whatever reason doesn’t meet that time deadline, the obligation—and we’ve talked about the burden of the cost that would fall on that contracting party—would then be moved to the contracting party. So what I’m wondering is whether there’s potentially some language within paragraph (2)(a), where it can be clear that reasonable efforts have been made, or it is a last resort type of option. Paragraph (2)(b) I can understand; it feels like if there is information that the public entity simply doesn’t hold, that would be a very valid reason for seeking it from a third-party contractor. However, it feels to me that we must pursue those within the public space first, to avoid the burden falling onto contracted parties.

Thank you, Madam Chair. I just want to move on a little bit, not too far, to clause 44—actually no; let’s go to clause 45. This is about a non - Public Service agency, which is the most kind of perplexing and unusual power when you’re talking about a regulatory inquiry, to be able to go and just demand of someone who’s under contract that they produce information. As the Minister pointed out earlier, clause 45 starts with the word “Restriction” but it doesn’t really restrict anything. It just gives some procedural notes and, in particular, subclause (2) states, “The chief executive of the regulatory standards Ministry may exercise the power under section 43 only if they have first consulted the relevant chief executive.” I mean—really?

If you take the Serco example, the chief executive of Regulation consults the chief executive of Corrections, and then they go and demand a raft of information from Serco, their contractor. Now, that consultation is meaningless. They don’t have to consult with the agency they’re about to demand information from. My amendment actually says that it doesn’t place an unreasonable burden. Following the words “consulted the relevant chief executive” it inserts the words “and there is no more appropriate way to obtain the information.” A lot of that information is likely held elsewhere, and, in fact, it is referred to elsewhere in this legislation but it isn’t clearly set out that there’s a hierarchy whereby you’ve got to go to your Government agency first and then—and only if you need additional information—can you go to your citizen contractor, who, in the contract, isn’t expected to and isn’t paid to provide all this addition information.

So it does seem reasonable to me to say, “Well, look, even if you don’t accept the amendment that they can charge for doing additional work that’s not in the contract, at least this is a residual power, one that isn’t exercised as a first resort—because, of course, that’s the danger, isn’t it. You consult with the chief executive of Corrections and you get the response, “Oh, gosh, my crew at Corrections is pretty much under the thumb. Why don’t you ask it from our private contractors because they’re obliged to under the legislation and it doesn’t then fall on the Public Service.”

So, again, this is about incentives. There are some real risks in there. So that’s the amendment I’m proposing to clause 45. I did suggest an amendment to clause 44 as well, which was filed at 12.52, which really, again, limits the power. It says that the chief executive of the regulatory standards ministry may exercise the power under section 43 only if it’s consistent with the right to be secure against unreasonable search and seizure, and so on. So it’s a reflection of the earlier proposed amendment but it’s new and different because it’s a much broader note on the restriction of those powers.

I’d be very interested in the kind of hierarchy of demand and whether the Minister would be amenable to making sure, when you’re demanding information from a non - Public Service agency, as to whether that’s only going to be in the case where there’s no more appropriate way to obtain that information.

Thank you, Madam Chair. Just to address a few questions, starting with Vanushi Walters—the question about former contractors, whether the Regulations Review Committee has that power. With the legislation, the trick is in the word “is”—“is engaged under a contract”—so a person that used to be engaged under a contract would not fulfil that. I hope that addresses her concern.

She then raised a question, which Duncan Webb carried on, about why the contractor is seen as the last resort or has less protection; if I can address that. I noted Dr Duncan Webb asking whether an organisation like Serco would face punitive or undeliverable demands for information. I thought that was interesting—the Labour Party’s new-found concern for Serco—but my answer was actually given earlier: just because this power exists for a ministry, to use it under legislation, a ministry still has a Minister.

One of the reasons for informing the chief executive of the other department is so that Ministers can talk and say, “Well, is your department really acting in the best interests of the Government when they do this?” Yes, the Government has asked Parliament to pass this law to express a general intent, but departments will share information with the Ministry for Regulation, but that doesn’t mean that it is a completely unfettered power. Ministers are still in charge of their departments and can intervene if they feel it’s necessary. I don’t think we need to worry about powers being taken to absurd extents, so long as, of course, the Government has competent Ministers, which I am sure it will.

That means that we will not entertain the tabled amendment on clause 43 that was introducing time limits or requiring 20 working days, as the member has suggested. He then asked whether there should be exclusions like the Official Information Act. Well, no, this is a central agency within the Government asking for information from another department. It doesn’t involve a person outside the Crown asking for information from withinside the Crown.

In relation to the Privacy Act, which Vanushi Walters raised, I may have misled or misspoken when I said there wouldn’t be any need for any notifications. I didn’t mean to say that notifications currently required when a department transfers information from one department to another would be somehow wiped. I meant to say that the requirements of the Privacy Act for handling information would continue as they are today, regardless of the mechanism of transfer; whether the department transferred information to satisfy this requirement as opposed to any other that they might have. I hope that addresses the members’ questions.

I move, That debate on this question now close.

CHAIRPERSON (Maureen Pugh): There’s a small section that hasn’t been addressed in this part, so I’ll just see if anyone attends to it.

Thank you, Madam Chair. First of all, I’m going to address a follow-up question for the Minister for Regulation on clause 43(2)(b), but I’m going to then move on to clause 45 and then clause 47. So in terms of 43(2)(b)—and this is in response to Vanushi Walters’ question around contractors. Now, just using the Official Information Act (OIA) examples that the Hon Dr Duncan Webb mentioned before, I wondered if a person that is engaged under contract, whether you are also going to be seeing circumstances where the response from that is that it’s commercially sensitive, because, again, a lot of OIAs—particularly when it comes to contractors—often come back saying that the OIA is rejected on that basis. I just want to check with the Minister if that has been a consideration.

In terms of clause 45(2), just a very short question for the Minister. When he says the chief executive—“section 43 only if they have first consulted the relevant chief executive.”—I wondered if “first consulted” would also imply received approval from. The reason I ask this is I do have an amendment on this particular part because I think it does add reassurance that the consultation needs to also have the approval from the relevant chief executive. Otherwise, they could just consult, but if the other chief executive says no, they’ve done the consultation anyway.

Finally, in terms of clause 47(1), I do have a very short question. This is the important clause of failing to comply with a notice. I understand this is a safeguard measure, but has the Minister received any advice on how likely it is that something like this would happen? Are there any sort of other comparables, for example, using the OIA or anything else; whether we’re going to be seeing quite a substantial or drastic or even a reasonable increase in terms of the pressure that’s going to be added on to the High Court and High Court judges when it comes to a failure to comply notice. That’s all.

Can I quickly address the question about clause 43(2)(b). The member asked if this is like the Official Information Act (OIA) where information could be withheld because it’s commercially sensitive. This is not an OIA. The Ministry for Regulation is a central agency within the Government. It has the ability to request this information under the law because it too is bound by the kind of confidentiality that is required to deal with commercial sensitivity.

The question was whether we would consider amending the bill so that the information could only be supplied if the chief executive of the department it was asked for from agreed to provide the information. Now, if you had to get them to agree, then there would be no point in having this whole section of the bill that we’ve been debating for the last hour, because they could already ask for information and get them to voluntarily agree without passing this law, or this part of it. That’s definitely not an amendment that we will adopt because, frankly, it’s silly.

On clause 47, whether we have any advice on how likely it is that this matter will fall under adjudication: no, we don’t, but it would seem extremely unlikely. It would seem to be a backstop rather than something you would expect to frequently occur, because Ministers who are in charge of departments have an incentive to ensure that the public spectacle of their departments suing each other is not apparent.

I can tell you, before I take another call, that there is no part of this part that has not already been covered. If you’ve got something unique to the debate, I’m happy to take another call.

Thank you, Madam Chair. I want to talk about a clause that nobody has talked about tonight, and that is clause 47, which talks about the powers of the High Court. One of the difficulties is it kind of falls short. I’ve actually got two Amendment Papers in, in respect of this clause, both filed at about 12.20 p.m. on 4 November. One is doing it light and the other’s doing it a bit more thoroughly, so I’ll talk about the one that does it more thoroughly.

The difficulty is that the power here, or the direction here, is that if someone doesn’t comply with the notice, the ministry can go to the court and the court can then make an order on any terms that it thinks fit—if it’s satisfied that the information is necessary and desirable—but it doesn’t, essentially, do the flip side. My Amendment Paper does two things: first of all, it says the court can set aside the notice, so it makes it clear that the court has the power to make one of two orders: comply with the notice and do it like this, within this time, and in this way; or that was a silly notice, you don’t have to comply with it at all. Essentially, the court may set aside the notice.

The other thing is this, and Minister, I think this is actually a relatively useful clause—it would be new clause 47A: any person who receives a notice can themselves go to the court. So any person who receives a notice under this part may, within 20 days of the service of that notice, apply for an Order of the High Court setting the notice aside. You could have people go, “That’s a silly notice. I’m not required. This isn’t necessary.” That requires the ministry itself to then, essentially, prosecute, if you like, the notice in the High Court. It would be a lot cleaner if someone could simply say, “Look, we don’t consider ourselves obliged, so we’re going to the court to seek clarity on that.”

Then, the court can do all of the things it could otherwise have done, which is set the notice aside or say, “No, that is a legitimate notice; comply with it in full.”, or anything in between: “It is a bit silly because it asks for seven days; you’ve got 60 days, because it’s a big notice.”; or “It’s far too expansive; you can comply with the notice in a much narrower class of information.”; or “It’s asked you to do something which is entirely unreasonable. It’s not your job to collate and sort information; that’s the job of the ministry who’s undertaking the review.”

So that kind of power, importantly, probably falls within it if the ministry goes to the court, but not if the person who is subject to the notice goes to the court. So that’s actually a very reasonable Amendment Paper, which clarifies the court’s powers and actually truncates the timeline because the person subject to the notice doesn’t have to sit on their hands and wait with bated breath to see whether the ministry decides whether or not to go and seek that court order.

Can I very quickly address this. I’ve had members of the Government benches suggesting that Dr Duncan Webb is actually trying to audition for a role on the Regulatory Standards Board, which I find an interesting proposition, but, at this point, I’m not very persuaded, because he asked whether the court should be told in legislation that it can set aside an application. The court can already do that. Even a dumb engineer like me can read it and say that the court may make the order—so that implies that the court doesn’t have to make the order—meaning it could set it aside. There’s no need for more verbiage to spell that out; the law should be as succinct as possible, if not more succinct.

Then he asked whether there should be a sort of Mexican stand-off where the recipient of the request for information could actually go to court and say that they don’t want to answer. That, I think, is bureaucracy in the absurd and not something that the Government will entertain, nor the previous tabled amendment.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 3 set out on Amendment Paper 427 be agreed to.

The question is the Hon Dr Duncan Webb’s tabled amendment inserting new clause 41A be agreed to.

Francisco Hernandez’s tabled amendment deleting clauses 42 to 47 is ruled out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 42 inserting new subclause (5) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 43(1) be agreed to.

The question is that Francisco Hernandez’s tabled amendment to clause 42, inserting new subclause (5) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 43(2)(a), deleting subparagraph (iv) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 43, inserting new subclause (2A) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 43(3), replacing “the date” with “a date that is reasonably practicable” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 44, inserting new paragraph (e) be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 44, inserting new subclause (2A) is ruled out of order as not being in the correct form of legislation.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 45(2) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 45(2) be agreed to.

The question is that Francisco Hernandez’s tabled amendment to delete clause 47 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 47, inserting new subclause (3) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment inserting new clause 47A be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 3 be agreed to

The question is that the Hon Dr Duncan Webb’s tabled amendment deleting clause 4 be agreed to

The question is that the Hon Dr Duncan Webb’s tabled amendment deleting clause 5 be agreed to.

The question is that Schedule 1 be agreed to.

The question is that the Minister’s amendments to Schedule 1A set out on Amendment Paper 427 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Part 1, deleting item 5 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Part 1, inserting new item 10 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Part 2, inserting new item 10 be agreed to.

The question is that Schedule 1A as amended be agreed to.

The question is that the Minister’s amendment to Schedule 2 set out on Amendment Paper 427 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new clause 1AA be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 3, inserting new subclause (3) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4 be agreed to.

The question is t

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting new subclause (2) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment replacing clause 8 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment inserting new clause 9A be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 10, inserting new subclause (6) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 16 be agreed to.