Local Government (Water Services) Bill

Members, we now come to the debate on Part 6, which is the debate on clauses 344 to 432, “Miscellaneous provisions”, and Schedule 12. The question is that Part 6 stand part.

As we begin debate on Part 6, I thought it might be appropriate to just give a little bit of an overview of the part and what it contains. It’s made up of a number of very practical operational provisions to enable water service providers to effectively manage and protect their water service networks so that services can be delivered to required standards.

Part 6 provides water service providers with regulatory powers in relation to by-laws, compliance, and enforcement mechanisms, and it includes offence provisions, as well. It empowers councils to make, amend, revoke, review, and enforce water services by-laws. A water organisation may propose a by-law, undertake consultation on behalf of the council, and have delegated responsibilities to administer or enforce by-laws while the council retains ultimate responsibility for by-law making.

In addition, this part requires that the Minister of Local Government initiate a review of water services systems within 54 to 66 months of commencement.

Thank you, Mr Chair, and thank you to the Minister for running through that brief overview of this final part. I want to ask the Minister—I was hoping, actually, that as part of the overview, he would have shared with the committee the rationale behind the Amendment Paper that was landed at 9.55 p.m. last night—

Hon Rachel Brooking: 9.55 p.m.?

TANGI UTIKERE: —9.55 p.m. last night—to delete clause 347(3). Now, it may appear—I guess—innocuous, because it’s just one-liner, but, basically, it seeks to delete an entire clause. The clause that it seeks to delete is under section 347, which is around the power that is given to make water services by-laws. And I hear some sort of comment from the Hon Rachel Brooking, and it’s because—the surprise, I think, that this is has landed late in the piece. However, what this seeks to do is delete subclause (3), which identifies that before making a by-law relating to the discharge of trade waste, a territorial authority must follow the process set out in a particular subsection of the Local Government Act 2002 before things proceed further. So I had to refresh my mind as to what section 148, subclauses (2) through to (4), of the Local Government Act actually require.

Hon Rachel Brooking: What sort of deputy mayor were you?

TANGI UTIKERE: Well, I was a very good deputy mayor, but I have to say, I had to refresh my memory early in the morning around by-laws relating to trade waste. Basically, the crux of it is that the Minister is seeking to delete the ability to consult with the public over this issue. So what that subsection identifies is, basically, a two-month window within which there needs to be some opportunity for a public notification period to exist following engagement with the Minister of Health—who may identify some other entities or individuals that also need to be consulted with—before this trade waste by-law is actually allowed to happen or come into effect.

And so my question for the Minister is: why is he seeking to remove that time? It may be because it’s contained elsewhere. Well, if that was the case, why did he wait till five minutes before the House rose last night—or the committee rose last night—before he needed to land this here? Is it somewhere else? No, it’s not. The proposal was to initially delete it in (b) but put it into the subsection proper; now, the Minister is seeking to delete it in its entirety. I’ve got some real concerns, not only around the sloppiness with which this was landed so late in the piece, because there are no—we hear some groans from the other side there—but there’s nothing that has been identified by the Minister while the committee has been dealing with this to identify this as a change. So given that we have had quite some time—and the Minister’s own Amendment Papers, I think, were publicly released back on 29 July—so why is there the requirement for the sloppiness, and also the element of haste to remove the ability for the public to be consulted around this? So that’s why.

Hon Rachel Brooking: And why didn’t he raise it? Why didn’t he proactively raise it? Was it proactively raised by the Minister?

TANGI UTIKERE: Well, the Minister didn’t actually identify anything in the Chamber last night to say, so this is rather sneaky behaviour.

Mr Chair, this is the second time this morning that that member has drawn attention to issues that relate more to matters internally within his party than anything to do with this legislation. I don’t want to cast any aspersions on his previous life as the Deputy Mayor of Palmerston North, but there is a simple reason for the Amendment Paper. I just want to make it clear to the member, and also to members of this committee, that clause 347(3) is being deleted because it refers to section 148 of the Local Government Act 2002, which is actually being repealed by Schedule 12. Now, the role of the Minister of Health is transferred to the Water Services Authority as the drinking-water quality regulator, and section 148, which requires by-laws to be sent to the Minister of Health, is therefore not required. That’s an explanation of the Amendment Paper that was produced last night.

Thank you, Mr Chair. It’s good to have that explanation from the Minister of Commerce and Consumer Affairs. Of course, it would be a much simpler process if when Ministers put little amendments on the Table at 9.55 p.m. at night that they tell the committee about what they're doing and even why they're doing it—imagine that!

I am also interested in this clause 347, “Power to make water services bylaws”, because, of course, by-laws are very interesting things. They are something whereby a council can act as a rule-maker. So it is good that we have clause 347, that sets out where these by-laws can be made; it’s always useful to have these specific provisions in legislation so councils have the knowledge that they have the authority to make such a by-law rather than having to work out whether they can or not.

But I'm interested in subclause (1)(d), which is managing a stormwater network, including by-laws to support water service providers’ stormwater network risk management plan. And we did have some discussion about this in an earlier part of the bill—

CHAIRPERSON (Teanau Tuiono): Have you got a page for that?

Hon RACHEL BROOKING: I’m on page 282 of the big Amendment Paper.

CHAIRPERSON (Teanau Tuiono): Page 282, OK.

Hon RACHEL BROOKING: That is what I'm looking at—not the little Amendment Paper that was landed at 9.55 p.m. last night that we might not have noticed.

Now, the discussion that we had, if the Minister’s found it, I'm looking at clause 347(1)(d)—

Cameron Luxton: It’s the same day; it was earlier today. Says it on the wall.

Hon RACHEL BROOKING: The Government members are saying that because we're in an extended sitting, we're still on Wednesday. Well—

Cameron Luxton: In the House we are.

Hon RACHEL BROOKING: That's nice to say that in the House, we are still in Wednesday. That does not detract from the fact that it was at 9.55 p.m. on Wednesday night that a very small Amendment Paper was put on the Table and nothing was said about it until the next session, which we are in now, when we had to raise it as a topic, which seems a very bad way to make laws. I don't disagree with what the Minister said when he did actually raise it, but he didn't actively raise it, and that is the problem.

But it's not actually what I was talking about, which is clause 347(1)(d) on page 282, and this is whereby a council will be able to make a by-law, at clause 170, that requires private property owners to—well, I never got an answer to this question, but I think it means that they have to actively undertake proactive activities to stop hazards, to clean up waterways, to do things before a water event happens. And I asked in that part, as well, whether or not there had been advice that the Minister can share with the committee about that ability for a council to impose these requirements, active requirements, on to private property owners rather than the more orthodox approach of a by-law, which says, “Don't go into these areas.” So it's a “Don't do this” rather than a “You have to actively manage these things”. Because it is a tricky legal issue, and it's one that I remember discussing in the last Parliament, as well.

Then my next point in relation to this bylaw-making power is, of course, that it is for councils to make by-laws and not water organisations. We see in clause 348 that when the water services provider is a water organisation rather than a territorial authority, then that water organisation can propose a by-law. But, of course, some of these water organisations will have more than one council, one territorial authority; they might have two, for instance. There is provision in this clause 348 for when there are multiple territorial authorities within that water organisation, and it basically says the recommendation for a by-law can be that both, or however many councils there are, should undertake the bylaw-making process. “However”, it says at subclause (4), “[that] does not apply if there is good reason for a water organisation not to make the same proposal to each territorial authority.”

So my question is if the Minister can give some examples whereby it would not be appropriate for councils to have the same by-law that the water organisation is requesting, to do things like require private owners of property to clear debris or to not do certain things in different parts of an overflow path or anything else to do with the by-law; under what sort of circumstances would the multiple councils that are involved in a water organisation want different by-laws? And surely the point of having this water organisation is that everybody is following the same rules. Thank you, Mr Chair.

Just in relation to the specific question asked by the Hon Rachel Brooking in reference to clause 347(1)(d), which relates to the managing of stormwater networks, I wasn’t in the chair during the Part 3 debate, but I’m advised that that matter was answered clearly during the Part 3 debate, and it provides that they can impose requirements on private landowners. So that answers the question that the member was asking.

Thank you, Mr Chair. I want to focus my questions to the Minister on Subpart 2, around compliance and enforcement. I want to start by asking the Minister a question on the newly introduced provisions of clause 357, “Infringement offences”, whereby two additional provisions that are relevant to the Criminal Procedure Act 2011 have been applied here. I want to check with the Minister that, in the context of infringement notices, and particularly when it comes to fines, subclauses (2)(a) and (b) suggest that, essentially, a defendant who is convicted of an offence can be done by a by-law. I’m assuming the implication is that subclause (2)(b) doesn’t have to be applied if the offence is happening in a jurisdiction in which there is no similar or comparable by-law.

But I want to check and test in this particular provision, in the broader scheme of when we are looking at the collection of fines in the case of infringement offences—would that then apply to other areas whereby the enforcement of such collection of fines can only be limited to that particular by-law jurisdiction, or can it be expanded more broadly nationally?

The reason I suggest this and want to get clarification from the Minister is: let’s say, for example, that there is currently a trial going on where a bailiff is able to scan a person’s vehicle and check if that particular person has a fine associated with that particular vehicle. However, if that vehicle is registered to a specific area and a fine is limited by a specific area’s by-law, would that mean that the bailiff has the jurisdiction in another area to impose or to apply that same level of ability to fine or impound a person’s vehicle if it’s not from that by-law? I’m hoping that that makes some sort of sense. It makes sense in my head. It depends on the jurisdiction of the by-law. If it doesn’t make sense, I suggest that the Minister respond to that rather than people from the other side who may not have had the same experience dealing with legislation or criminal matters, and I suggest that they go and do some learning. That is my first question—it’s around the enforceability and jurisdiction of a by-law based on the new two areas of (2)(a) and (b) in clause 357.

I want to move on to clause 371, “Power to obtain information”. This is something that has come up in other legislation. I want to focus on the power of a compliance officer, and it is about interaction with the privilege of self-incrimination. I want to get clarification from the Minister that when we’re looking at the Search and Surveillance Act and looking in the bill at subclause (3) of clause 371, and we’re looking at the privilege and confidentiality, it applies to “ … anything done in this section,” but in subclause (4) “Nothing in this section limits other legislation …”, as well.

So what I just want to get perfectly clear is this: within the power of a compliance officer in clause 371, we will still uphold the fundamental rule as we see in the Search and Surveillance Act, that people will not be put in a situation where they are self-incriminating, and this is going to be really important int terms of the power that is being granted to a compliance officer in clause 371(1).

Again, this has been ongoing, with well-known cases in New Zealand and internationally that use New Zealand—and particularly the obiter dictum in the famous Taylor v New Zealand Poultry Board case in the 1980s—that this is something that fundamentally challenges our New Zealand Bill of Rights Act. So I want to just get a clarification from the Minister that my interpretation is correct—that it’s not going to get people to self-incriminate.

Sorry, Mr Chair. I was just wanting to make a response, particularly to Lawrence Xu-Nan’s request for information regarding clause 357, “Infringement offences”. I’ll come back to his second matter, probably after the next contribution. He asked whether what was in his head was being made clear to others. It would be totally inappropriate for me to try and ascertain what was going on in his head, and I don’t mean that in any negative way, but from my understanding, the point that he raised was really seeking some clarification about the extent to which those enforcement provisions would apply outside the jurisdiction of the bylaw-creating entity. Is that—

Dr Lawrence Xu-Nan: Thank you! See, you get me.

Hon SCOTT SIMPSON: Yeah, yeah. And I’m not even in the member’s head! That’s probably a good thing.

I just want to make the point that the new subclauses clarify that the infringement offences in the by-law only apply in the district the by-law is made in. So that’s to clarify, not make substantive change. It just applies to section 375 of the Criminal Procedure Act of 2011—is the particular reference, I’m advised—that the infringement is not recorded as an offence but as an order to pay fines and costs. So clause 357 is limited to those water by-laws; it doesn’t extend beyond the water by-laws. I hope that helps with the member’s understanding.

CHAIRPERSON (Teanau Tuiono): It’s a bit early in the morning for mind-reading, but well done.

Thank you, Mr Chair. I just want to remind the committee that the Minister in charge of this bill put an Amendment Paper on the Table at the start of committee stage. We’re flicking between the bill as reported from the select committee and the Minister’s Amendment Paper. The interesting thing about that is the things which are in the Amendment Paper, which were not in the bill as reported from the select committee.

I want to go to clause 374 in the bill as reported from select committee—it’s on page 4; I’m looking at it on the bill as reported from select committee—and in particular, I’m looking at subclauses (5) and (6), which says, “(5) A compliance officer must not enter any land on which a marae or an urupā is situated or that is a Māori reservation, except with the consent of an owner”—

CHAIRPERSON (Teanau Tuiono): What page is that on?

Hon Dr DEBORAH RUSSELL: Oh, this is page 310 of the bill as reported by the select committee—subclause (5) there. So that was (5), and (6) is: “A compliance officer must not enter any Māori land unless, before entering, the compliance officer has given reasonable notice in writing to the owner (or owners) of the land.” So the first question a person might reasonably sort of say to themselves is, “Well, what is meant by ‘Māori land’?” In the select committee version of the bill, “Māori land” has the same meaning as set out in section 4 of the Te Ture Whenua Māori Act 1993. That’s what’s going on in the original version of the bill.

Sitting in what has come through from the Minister, we’ve got the definition of Māori land, but then we’ve got a definition of Māori-owned land: “Māori land; a Māori reservation; any land on which a marae or an urupā is situated; a reserve [and so on]”. That’s fine. Flicking through to clause 374 in the Minister’s Amendment Paper—this on page 295 of the Minister’s Amendment Paper—we find that in subclause (6), “A compliance officer must not enter any Māori-owned land”—so there is a little clarification sitting there, not just any Māori land—but then there are also a whole lot of paragraphs added into (6) to specify exactly what land is intended; so it’s “(a) the marae, if a marae is situated on the land; (b) the trustees of the principal marae of the hapū that is associated with the land”, and so on.

What it’s doing is specifying who must be contacted. I’m interested in that, because it seems like there is a considerable amount of clarification or additional text added into subclause (6) of clause 374, in the Minister’s Amendment Paper. What is the policy thinking behind that? Why was there felt to be a need to add all those clarifications? You know, if the law was not sufficiently clear before, as to the proposed law, as to who was to be contacted—it seems like very much like a belt-and-braces approach, but what confidence do we have that the braces there are actually doing the work or that they add to the law as written? Just if the Minister could clarify what the policy thinking was behind that.

The short answer to the member’s question is that it’s simply to provide clarity and certainty.

This is just a short contribution from me, and one that relates to the offence provisions and the enforcement provisions in this Part 6. I haven’t seen anything in relation to whereby a person breaches a by-law and the water services provider has an opportunity to turn off that property’s water source. I was wondering if there is any link into this part of the bill about that ability to turn off the water source for a breach of a by-law or if that is actually just quite separate and there’s no link to this part of the bill? Thank you.

Thank you, Mr Chair, and I thank the Minister for knowing exactly what I was asking. I do appreciate that.

I have two additional questions. I’m looking at Subpart 3, “Offences”, and I will refer to a few of the clauses, but just for brevity, the two questions I have for the Minister are sort of more thematic. For example, the first question is around, let’s say, clause 394. We’re seeing similar terminology being used in, let’s say, clauses 396 and 403—because it simply is a repetition between water supply network, waste-water network, and stormwater network—but the wording is the same, and I want to check in terms of the wording.

My understanding here is, in terms of clause 394 et al.—and other sections—subclause (1)(a) implies the actus reus of a criminal offence, and (b) is the mens rea component of a criminal offence; and subclause (2) is the consequence of those. I want to check with the Minister because subclause (a), in terms of actus reus, is fairly straightforward, but subclause (b) conflates three very different areas of mens rea—intention, knowledge, and recklessness. Can I just check that, while they’re all being put under one subclause, which is subclause (b), those three different degrees of mens rea will be considered when a conviction is being determined—as in, when we’re looking at “for an individual … a term of imprisonment not exceeding 2 years or a fine not exceeding $75,000” or “for a body corporate … a fine not exceeding $1.5 million.”, that the degree of that will still be determined on varying degrees of the mens rea, in accordance with subclause (1)(b), as opposed to intention, knowledge, and recklessness being combined into one totality, so to speak. That’s my first question, around mens rea—and, again, that’s clauses 394(1)(b), 396(1)(b), and 403(1)(b).

My second question is around clauses 395, 397, and 404, because they all include the term “negligently”. Now, “negligently”, in the sense of criminal law, forms the fourth part of mens rea, and it does have a certain level of connection in terms of liability. In general, when we’re looking at negligence, we’re looking at something that is either strict liability or limited liability, but I want to check with the Minister here that, in clauses 395(2)(a), 397(2)(a), and 404(2)(a), it specifies “… an individual, to a fine not exceeding $50,000:”—actually, $50,000 for all of them. Can I just check, both in terms of case law and also in terms of the thinking of this area, in what sort of circumstance would we find a limited or strict liability for an individual? I just want to get an example from the Minister on when that would be applicable. I understand, in terms of strict and limited liability for a body corporate, which is in subclause (2)(b), but if the Minister wouldn’t mind providing an example for subclause 2(a), that’ll be appreciated.

Before I attempt to respond to the member Lawrence Xu-Nan’s question, I just want to go back to the question that the Hon Rachel Brooking asked about the ability to turn water off. There is a provision, at clause 178A, that a water service provider must provide necessary water in “a sufficient quantity” to, for instance, provide for sanitation. So there is an ability to dial back the flow of water, but it still needs to be sufficient to, as I say, provide for sanitation, drinking, and so forth. So there’s a balance that is applied there.

Thank you, Minister, for explaining that part. Of course, it’s important that people can have some provision of water, but it was more how that links back to the earlier provision—which I know is in another part of the bill—that enables the water services provider to turn off if there’s been a breach of a by-law? Is that ability fettered by the clause that you just mentioned, in that there must always be this provision for the good sanitary provision?

Thank you. The answer must be, to that question: yes.

Dr Lawrence Xu-Nan asked about existing protections against incrimination—whether they continue to apply—and the answer to that question is yes. Without getting into a protracted discussion of the fundamentals of mens rea and legal principles involved, I think he can rest assured that those principles apply.

Thank you, Minister, for that clarification. That was very helpful. I want to focus on the next section, which is clause 421, and this is serious, but it’s also really interesting that there is a section in here on that in terms of assault. I just wanted to check with the Minister, when we are looking at assault here, it says “intentionally threaten or assault”; those two are a little bit different, but let’s focus on the more serious of the two, which is “assault an employee or agent” who is performing a duty or power. But the person “who commits an offence against this section is liable on conviction,–(a) for an individual, to a fine not exceeding $50,000.” However, I want to check with the Minister that assault is a separate and a very specific offense under the Crimes Act 1961, and if we are looking at—let’s say, to give an example, under section 173 of the Crimes Act 1961, “Assault with intent to injure”, the potential maximum conviction or criminalisation of that is three years in prison. However, over here, for an individual it is a fine not exceeding $50,000. In those kinds of cases, are we looking at a person who might be charged for both under assault with the intent to injure? For example, there are other sections around section 191 around assault, as well as what we see here in clause 421 in terms of intentionally threatening or assaulting an employee.

Are those two going to be separate charges that are going to be placed on the individual, and if not, what then prevails? Are we looking at the Crimes Act would prevail with assault with intent to injure or to clause 421 of this bill, because it seems like, if this is the case, you will potentially get a much lower conviction—for example, if you assault an employee or agent of territorial authorities or other organisation—than if you are assaulting with the intent to injure a person in general. So that may be part one, and part two is unless we’re looking at assault on a minor scale—but assault not necessarily with the intent to injure—which is, again, a very separate thing because there is a mens rea component to it, where simply assaulting may not have the same threshold for mens rea. But, yes, I just want to check in terms of what is meant by assault and its interaction with the Crimes Act.

This is turning into quite the law school process and it reminds me of days long gone by. I just want to confirm for the member that provisions of this sort that provide protections for enforcement officers and agencies are pretty standard in legislation that is widely used by the New Zealand Parliament. So this is not an unusual provision from that regard; to have those specific offences when undertaking compliance roles is common—not unusual, not weird, strange, or odd in any way. And it is separate from general assault offences. As the member will know from his own university lecturing days, charging decisions are actually matters for prosecution, not for the legislation or the legislature. So that's the simple answer to that question. But it's an interesting legal academic point.

I move, That debate on this question now close.

The question is, That the Minister’s tabled amendment to Amendment Paper 346 deleting clause 347(3) be agreed to.

The question is, That the Minister’s amendments to Part 6 set out on Amendment Paper 346 as amended be agreed to.

The question is, That the Minister’s amendment to Schedule 1 set out on Amendment Paper 346 be agreed to.

The question is, That the Minister’s amendments to Schedule 2 set out on Amendment Paper 346 be agreed to.

The question is, That the Minister’s amendments to Schedule 3 set out on Amendment Paper 346 be agreed to.

The question is, That the Minister’s amendments to Schedule 5 set out on Amendment Paper 346 be agreed to.

The question is that Tangi Utikere’s amendments to Schedule 5 set out on Amendment Paper 342 be agreed to.

The question is that the Minister’s amendments to Schedule 6 set out on Amendment Paper 346 be agreed to.

The question is that the Minister’s amendments to Schedule 7 set out on Amendment Paper 346 be agreed to.

The question is that the Minister’s tabled amendment to Amendment Paper 346 amending Schedule 9 be agreed to.

The question is that the Minister’s amendments to Schedule 9 set out on Amendment Paper 346 as amended be agreed to.

The question is that the Minister’s tabled amendment to Amendment Paper 346 amending Schedule 12 be agreed to.

The question is that the Minister’s amendments to Schedule 12 set out on Amendment Paper 346 as amended be agreed to.