Parliamentary debates: Wednesday, 26 March 2025

Good morning, members. The House is resumed. When we suspended last night, we were debating the third reading of the Land Transport (Drug Driving) Amendment Bill, with two speeches remaining. The next call is a Labour call.

Every loss of life on our roads is a tragedy. Every single one is something that the Government and communities and drivers have responsibility to do everything in our power to stop. That includes safety measures on our roads, safe speeds, and the appropriate sort of testing that goes along with harmful products like drugs and alcohol to make sure that people aren’t unnecessarily affected in their driving by those things and kill themselves and kill others on the roads.

It’s something that I think about as a local MP when, in Manurewa, we have some of the highest incidents of road deaths in the country. In just a small area around my house, we are the area of highest road pedestrian deaths in the country. The impact on communities is huge. Every loss of life means a parent or a friend, a grandparent, someone who is taken out of those communities and cannot do the things that they need to, and their families who rely on them will never have them again. So this is part of that. This is part of something that the Government can do alongside communities to make our roads safer.

I speak about it in that way because all road rules, everything that we do on the roads, requires a huge level of community support. You know, just things like thinking about which side of the road we drive on is an arbitrary “line in the sand” judgment call for regulators to make that we need community buy-in for. We can’t be enforcing these things all the time. We need people to believe in the rules and to have faith that they will be enforced in a not-arbitrary way.

I’ve been thinking about how this bill—it has had a long life in this House. The Minister of Transport was right when he said that this is the third time Parliament has been back here to consider how these rules will impact on people and to design a system that can have both community support and is robust and is supported by not only the drivers themselves but also by the police, and, on the other hand, is something which gives enough flexibility to procure a system of testing on the roadside that not only meets international standards and international norms around these things but is also just something that New Zealand can get its hands on.

There have been problems for the select committee working it through, the Transport and Infrastructure Committee. Even though this is the third time, you’d think some of these issues were settled. But the science leads us to ask further questions—things like whether we can and ever will be measuring for impairment, when we know that the tests that are being used here are about measuring the substance in people’s systems and the existence of that substance in someone’s bloodstream, rather than the way it has affected their driving.

I was thinking about this because our democracy does rely on trust. It relies on people’s ability to see that their Government exists by consent. Around the world, the way that democracies are being challenged not only by the fringe on the right and the left but by people’s lack of engagement too—the fact that people aren’t voting and the fact that every year, in major democracies, people turn away from their opportunity to engage with their politicians and do not cast their vote tells me that there is something about Governments now where people don’t see themselves represented. They don’t see themselves listened to. And if we make rules where people don’t feel that they are heard and they don’t feel like their own personal experience is taken into account, then what do we expect?

I think the arbitrariness of laws is something we should always be sceptical about as politicians. Sometimes laws will be arbitrary. Whether you drive on the left-hand or the right-hand side of the road is an arbitrary call, but it’s a call because we need a side of the road to drive on and it needs to be safe, and everyone agrees that there does need to be a rule, even if that rule is neither here nor there about which rule it is. So to have any sort of rule, we have to be able to justify it, and that’s, I think, what the select committee has endeavoured deeply to do.

But, again, it does go to the wider context in which we are introducing this. Speed rules are also arbitrary because there has to be a number. The difference in safety between 50 and 51 or 51 and 52 is difficult to quantify, but there is a difference and someone needs to make a rule. So when we are making all of these rules around road safety, we have to constantly be testing: are these arbitrary? If it is an arbitrary rule, can people see themselves represented in this? Is their experience acknowledged by Government? That’s where we got into some real difficulties and some real testing conversations in the committee.

I think we’ve done that in real good faith and I think that we have landed somewhere in this bill that we can all live with. But there are some remaining challenges, and we want to see the review provisions in this bill used so that we can all be sure that this is a robust rule limit, that it will be enforced in the way that we expect it to, because discretion and fairness matter in this law, and those objective measures are needed to determine whether this is working in the way that we expect it to.

As I said, impairment would be the thing that you would want to test in this. You would want to have alignment with what was being tested at the roadside was how affected a driver was. We heard submission after submission that that was not in fact a perfect correlation, that the science wasn’t there yet. So we hope it will be.

We have designed a rule here which not only gives police quite a lot of flexibility in terms of the kind of procurement and the kind of devices they can use but also we’ve given regulatory flexibility in the secondary legislation to experts to determine, over time, what impairment looks like at a level for certain substances. You need to do that. There’s no way that as a select committee we could have possibly made every regulation for every substance or every family of substances, because the sorts of substances used on our road now will be different to those used in 10 years, will be different to those used in 20. I mean, in the crises of synthetic cannabinoids in New Zealand, when those were widely available on the market, it was changing month to month as the regulations couldn’t keep up. We appreciate that. But we need people to also know that that is why this Parliament hasn’t considered the level of impairment there, because we could not, because the science isn’t there.

We also need our officials to hear us. There have been a number of speeches in this House about what officials could tell the committee and what they couldn’t. There is no intention here that this is a carte blanche licence to use the levels of substance and people systems or the very wide provisions around time and the amount of time that someone can spend on the roadside in a way that would be an incremental erosion of the ordinary rights and freedoms that New Zealanders can expect, because we want them to have faith in this law. We want them to have faith in this system, in this regime, and they all need to buy into it, because it’s not a system which can rely on enforcement. It’s a system which relies on people knowing that drug-driving is not OK, that nobody should be operating a car if they’re under the influence of any sort of drugs, whether it is prescription drugs and they haven’t been taken in accordance with the instructions, and so that person shouldn’t be driving while they’re behind the wheel, or whether it’s illicit drugs and that person should be off the roads and shouldn’t be putting other people in danger.

It also needs to have a practical outcome. So we want to make sure that what we’re designing here is a system which—you know, New Zealanders will have seen in other jurisdictions, where the committee heard that in many jurisdictions in Australia, they’ve also been through a few different rounds of this sort of legislation where they’ve made changes as they go, because you need to get these settings right, because they do get challenged in the courts. So it’s important here that New Zealanders feel like this is something that could change over time.

But we want to design a system that is more similar to roadside alcohol breath testing, and that it’s just a part of being a driver on the road, that you might expect to be pulled over for a short amount of time and be submitting to the swab test. You might need to do two, and you might need to go through that process. We’re not envisioning here a system where you would spend a long amount of time on the roadside. Personally, I think that it would have been a real benefit to this law if we had set some guidelines and some parameters around how long we expect being on the side of the road. But, again, we could not get a good sense from officials about a reasonable amount of time to put in the Act. In other parts of the Act, you’ll find 15 minutes is a useful amount of time to be deterring someone on the side of the road, and I personally think that that would have been a reasonable amount of time to include in this, but that is not what’s included here.

Just to wrap up, I think this is a sensible law. I personally will be watching this progress in our communities and around New Zealand, because I want it to work. I want people to have faith in it. I want people to have faith that the parliamentarians who are making these laws are taking their experiences into account. I don’t want to see people arbitrarily detained, I don’t want to see people spending too long, and I don’t want this having an effect where we’re having people on prescription medications unfairly treated when they’re just trying to get home. This is a reasonable bill, and I commend it.

Thank you, Madam Speaker. For far too long, drugged drivers have put other road users at risk. Well, guess what! Those days are over, and anyone driving while impaired can expect to get caught and face the consequences. Finally, police will have the tools they need to help keep Kiwis safe from drugged drivers. My final thoughts on this bill are, if you’re thinking of driving drugged, don’t—just don’t. I commend this bill to the House.

Tēnā koe e te Pīka. Otirā tēnā tātou. E tū ana ahau ki te waha i ētahi whakaaro hei apiti ki ngā kōrero kua hori nei e ngā mema o te Whare. E tū ana ahau ki te kōrero mō te taha ki te rangatahi Māori me ngā pānga ka ngau kino ki runga ki a rātou, ā, ka tōia te wāhi ki te Māori i roto i ngā kawenga o Te Tāhu o te Ture, tōna katoa.

[Thank you, Madam Speaker. Greetings to all. I stand to deliver some sentiments to add to what has already been said by the members of this House. I stand to speak regarding Māori youth and the impacts that have caused them trauma, and that Māori should have a place in the functions of the Ministry of Justice, completely.]

I rise to present Te Pāti Māori’s views on the bill. Let me just be clear that we do not support driving under any impairment—drugs, alcohol, or any other thing; we’re 100 percent pro safer roads. But what we cannot not address in this House is the Government’s continuation of dismissing the negative impacts on Māori, and in this bill I’m going to speak to the negative impacts on rangatahi Māori.

This is a very, very key piece of the justice pipeline when it comes to Māori in prison, because being in prison—that 54 percent of Māori men in prison starts somewhere; for most young Māori youth, male, rangatahi Māori, it starts with an interaction with the police over driving, or an interaction with police over low-level drug offending. This is how it starts.

Don’t do it.

Oh, “Don’t do it.”, you say. It’s a symptom of poverty. You wouldn’t know about that. You obviously haven’t researched what poverty means either, so don’t do that.

He’s bringing you into disrepute, Madam Speaker.

So this is where it starts for rangatahi Māori, OK?

Bet you did it—did you get pulled over?

This is where it starts for rangatahi Māori, and this is how the system and the laws that are being created ensures that they are delivered—

You’re the only one that’s been—

Can we please not have a barrage in front of the person who’s speaking. It’s OK to interject—

Kia ora. Tēnā koe, Madam Speaker.

—but I don’t want people shouting in front of the speaker.

Let me just get back to the point. I’m talking about young Māori, aged 14, 15, 16, 17 years old. They don’t fairly come into contact with the justice system. It’s not fair. That’s perfectly understood. If you don’t understand that, oh, man, we’re in trouble.

But this is what we’re dealing with and this is what I’m speaking to with regards to this bill. I see our justice Minister is here. Justice, right across its three areas, has three key performance indicators, or goals: one of the big ones is to reduce the overrepresentation of Māori in the justice system. Almost every piece of legislation that’s come through the House does the opposite. This is one of them, and it will exacerbate the presence of rangatahi Māori in the justice system. How can that be the justice Minister’s way forward? How can that be the way forward for a justice system that wants to reduce the overrepresentation of Māori in the system? It can’t be, but it is. So why? Well, I’ll leave the public to work that one out.

To save their lives.

You’re not saving anyone’s lives—the road toll hasn’t come down. OK, so, rangatahi Māori—that’s what we’re talking about. Forty-one percent of minor drug offences: Māori, OK—and similarly for minor traffic offences.

It’s the lowest in a very long time. Look at the stats. The lowest per capita since the 1920s—a hundred years.

I see the ex-mayor of Wellington is talking over there. He might want to think about this—he didn’t do such a great job in Wellington when he was the mayor. So rangatahi Māori entered the system there—many rangatahi Māori. The reason I know this is because many iwi all around the country have tried proactive programmes to counter this phenomenon. So what they do is get early licensing programmes into schools so that their kids have got licences. Then they teach them how to interact with the police when they get pulled up, because police profile rangatahi Māori; that’s why they pulled up more than any other rangatahi group.

Garbage!

Oh, “Garbage!”, she says.

Read the reports!

Yeah, no, she doesn’t like reports. That’s what happens. And these are the proactive steps that te iwi Māori have done to try to circumvent this little circle of delivering our kids into the justice system. Once they get in it, the number of offences quickly racks up for them, OK? It quickly racks up. That’s the beginning of a long delivery line for rangatahi Māori, particularly men, into prison. The Government is happy for that—they’re happy to ignore it. I raise it time and time again and they ignore it time and time again. So I’m putting it here for you, bluntly and point-blank.

All the experts says that the tech doesn’t work, you shouldn’t do it—da, da, da, da. They’ve ignored all of that. And, you know, when it comes down to leaving all of these things to police discretion, well, we currently have a very serious case in te iwi Māori of a young rangatahi Māori who experienced the blunt force of police discretion and brutality and racism and everything that comes with that. Young Kaea Heta, from Hastings, had his jaw broken by police, just recently. OK, that’s the excessive exercise of force, and as you commit to putting more rangatahi Māori into that system, more rangatahi Māori are going to come into contact with that discretion and the excessive force that the police report itself noted. We just can’t commend it, we can’t agree with it, and we can’t possibly let that go through this House. So we do not commend the bill to the House, at all.

Members, the House is in committee on the Sentencing (Reform) Amendment Bill. When we were last debating the bill, on Tuesday, 4 March, we were debating Part 1. This is the debate on clauses 3 to 16 and the Schedule. The question, again, is that Part 1 stand part.

Thank you, Madam Chair. Yeah, I wondered if across the committee, there was going to be a substantive call, but I somehow doubt it.

We were slowly going through the bill and I think, if I remember rightly, we had got to new clause 8. I want to start talking about clause 9, which is about reductions to sentencing. I had previously talked about the views of victims, but what I want to talk about now is the so-called “youth discount”. The bill, as before the committee, proposes—essentially, you only get one crack at a youth discount; that you can’t get a youth discount twice. Now, I can understand—a little bit like the remorse discount that you can also only get once under this bill—the kind of eye roll, if you like, of a judge who has someone who perhaps they’ve seen before coming before them and kind of running out the same old story. But there is actually a reason for the youth discount based in science, and that is about cognitive development. The fact that young people do not have the same decision-making capabilities as people whose brain has properly matured. And I’m concerned that there’ll be a conflation of age with mental development.

So, I guess, my question for the Minister of Justice, and I’ve actually got a tabled amendment on this, in respect of clause 9B is: is he satisfied that a judge can look at a person who is young and say that person has cognitive impairment, perhaps fetal alcohol syndrome—which is a good example where there’s significant cognitive impairment—or even just developmental delay; so they might be 21 years old, but, in fact, for whatever reason, their cognitive development is that of a 16-year-old? Now, is that cognitive delay able to be taken into account, or is that kind of tied up in this youth discount? And if the answer is, “Oh, that’s all part of the youth discount.”, then my amendment comes into play, which would put a new subsection 3 in clause 9B. And that would essentially say—the words I’ve proposed, are: “provided that this does not preclude the court from taking into account the psychological and cognitive development of the offender in the sentencing.”

Because the fact of the matter is that, you know, young people’s cognitive development has been conclusively shown to impair good decision making. I guess the irony of the “no” to two youth discounts is that you don’t stop being young. You don’t magically become more grown up once you’re sentenced and given a youth discount; you’re still suffering from the fact that your brain does not work as good as a mature brain. So my question to the Minister is: how are we going to ensure that judges are still given the ability to take into account the kind of psychological development, the cognitive development, the actual brain growth and physical growth as well as the kind of mental maturity? How are we going to be able to take those things into account when it looks like the youth discount in fact kind of sweeps that away?

I guess, the other thing about this, in terms of the discount and the youth discount, is the need for—because this is about deterrence—the offender to know that they have been given a once-only discount. Now, there is a general rule that you have sentencing notes, but, again, you’ve got a person who might not be particularly literate or particularly well equipped. What steps will be put in place so that when they are actually sentenced, they take away something which says to them, “Here you go, this is a youth discount. You only get it once.”

Of course, in many cases the courts will kind of make a mishmash decision. This requires a slicing off of youth and saying, “This is the discount for youth.” Of course, the other risk is that judges won’t give youth discounts on a first offence for the very reason that it’s a once-only thing. So I’d be interested in that, Minister.

Thank you, Madam Chair. Yes, we have returned to this particular bill. Just so I can kind of keep my thought process and work through this bill systematically as well, the last time we left this bill I was talking about clause 6, which is section 9 amended, around aggravating factors. Also just to signal to you, as well as to the Chair, that I still haven’t received a response from the Minister of Justice regarding my previous question, which is around subclause (1)(cb), including section 66(1)(b), (c), or (d), or (2) of the Crimes Act 1961 around party liability.

I asked two questions at that stage—just also to jog the Minister’s memory. One of them was: how would this work, in reference to the Ahsin v Queen case of 2014, whereby the fact that in Aotearoa currently under the Crimes Act 1961 and particularly section 66, we do not have a complete withdraw possibility when it comes to party liability, which is very clear in that Supreme Court case.

The second part of that would be that when we were looking at party liability as well, considering that we have removed the presumption whereby a person who is married—in most cases, a woman who is married to a husband—commits a crime, that they automatically get the defence of convulsion, to that effect. With that presumption being removed, there is nothing in this bill or under the Crimes Act 1961, section 66, that would allow a defence for someone who has been in long-term abusive relationships and how that would be punished both under section 66 as well as under this new aggravating factor. So just want to get clarity from the Minister on whether that has been taken into consideration when this has been decided.

The next part I want to mention that comes with the aggravating factors is one of the two aggravating factors that has been introduced as a part of this bill. Now, this is clause 6(2)(fc). Understandably, that makes a lot of sense—we’re putting public transport service workers in line with other service workers such as police and emergency and firefighters, etc. I would like to ask the Minister some questions around clause 6(2)(fd). That is to do with when one of the following happens: when the victim is working on their own or when the victim is working in a business that was physically joined to. Now, one of the things that we did explore and did actually came through as part of submissions by others was around the fact that that is already an existing aggravating factor under section 9 of the Sentencing Act. That is, from memory, 9(g), where is says “that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:”, which could extend to knowing the victim was working alone or working in a business.

Now, how would the Minister reconcile with the fact that for something like that, if both aggravating factors are being considered, that would be considered a double jeopardy or a case where a person would be trialled or be punished twice for potentially the same crime? Will the judge have a level of flexibility in that case to determine whether they will apply the aggravating factor in clause 6(2)(fd) or the aggravating factor in section 9G?

So those two questions: one around party liability under section 66 and the other one around the new aggravating factor in clause 6(2)(fd).

Thank you, members, for the questions. In terms of the youth discount, the member referred to fetal alcohol syndrome and so forth, and those matters can be dealt with separately from youth. The youth discount applies to offenders aged 18 and over, and so our point of view is that they should have the potential for a discount for that youth once, not multiple times. We tend to look at it from the point of view of the victims of crime. It doesn’t really sort of matter, if you’re violently assaulted by somebody, what age they are—you are violently assaulted. So we wanted to send a clear message that we’re limiting the amount of discounts that can be applied when it comes to sentencing.

In terms of party liability, my advice is that party liability is determined at the conviction stage, not in sentencing.

I’m going to take a call from Dr Tracey McLellan, but at this point I’m just going to say I’ve still got the notes from when I was in the Chair last time, and we don’t want to be going over things that’ve already been mentioned, so I want new material only at this point in time. Thank you.

Thank you, Madam Chair, but due to the Minister of Justice’s answer right there—I had a different question but given the Minister’s response right there—it has prompted me to ask a further question about this subject—

That’s fine.

—so I’d like a little bit of indulgence and I’ll try not to be too long.

No, that’s fine.

I think the concept of youth discounts as a mitigating factor when sentencing—the age of a person—is actually really important. It’s certainly one of the topics that we’ve, on this side of the Chamber, undoubtedly, received the most feedback on when people try and get their head around what it is this Government’s trying to achieve. Even from a philosophical perspective, when you think about what is the purpose of the law and what is the purpose of sentencing, you’ve got two very opposing—and sometimes in stark contrast—aims. That is, to respect the needs of the victim; as the Minister has just said, if you’re assaulted by someone, regardless of their age, you still feel the need to have that vindication through a legal process. But the other purpose of the law and justice and sentencing is to prevent stuff from happening in the future, to prevent it from feeding into a cycle by taking all the opportunities that you have available to you to try and essentially knock that on the head.

As my colleague the Hon Dr Duncan Webb said, the concept of youth and maturation and development is actually really, really important. I understand that it doesn’t necessarily matter to the person who has a right to feel that they’ve received justice via a sentence or a harsh sentence on the person that perpetrated that crime against them, but it is something that as a society we should be rightly invested in because for no other reason than if we don’t get this right, then we do create a cycle of just more and more offending, which by definition creates more and more victims of the same crimes that we’re trying to lessen the impact on people.

So the question I had specifically for the Minister was something that was raised when we think about maybe or maybe not judges choosing to use the youth factor as a mitigating factor in sentencing. They may not choose to do it in the first instance, given that they know it’s only a one-off—an arbitrarily decided one-off according to this bill, regardless of the science and the sensibilities around that. So has the Minister or has his team looked at what those unintended consequences could be in those circumstances? Because nipping something in the bud at a young person’s first appearance and therefore opportunity to provide some sort of corrective direction via a sentence—if that’s not taken on board and the judge says, “Well, actually, I’ll keep that up the sleeve because there’s a chance that this person may be back before this court in the next year or two and we want to be able to use that factor.”, what sort of work has been done on looking on that?

Also, if we are to consider this strictly—and it’s a long bow—as a signal and as a deterrent, even though we know that most people that commit crimes don’t fully cognitively go into it, weighing up all the consequences of getting caught etc., etc., it’s about addressing the drivers of crime and making a fair and just system so that people don’t feel it’s overly punitive and therefore rebel against the very society that we’re hoping them to be part of. But if we consider this as being a signal and a deterrent I just feel like there’s been very scant information to date about weighing up with metrics and analyses what those impacts could be. I’m sure that the Minister would have gone into more detail and would be privy, probably, to more of that information.

I just think it’s really important, given that this is the stage that this bill is at the Chamber today; that we have an opportunity just to hear a little bit more about this really, really important issue, before we move on. And I understand that we will move on but, as I said, lots of people have provided feedback about this. This is the one thing in this bill that really seems to exercise people because for most humans and for most people therefore but go anybody; we were all young, we all know that silly things can happen, we all know that youth and the maturation of the brain, and the neurocognitive development of people is a real thing, and we just want to know that this Government has taken that into account, rather than potentially making things worse in the years to come because they haven’t sufficiently taken it into account.

I move, That debate on this question now close.

I’ll take a call from the Hon Dr Duncan Webb, but I feel that we have had a fair proportion—not this morning but over time, on this—and I’m ticking off the questions as they’ve been answered. So I’ll give Dr Webb a chance to ask some more relevant questions.

OK, well—and I’m aware that my colleague Ginny Andersen hasn’t had a call today or indeed a great number of calls on this previous—

Just on that point, it makes it difficult when we traverse a committee of the whole House stage over two sitting blocks where we have traversed a lot of conversations, and people who then come into the committee now are sort of in a phase where we’ve got to be careful not to relitigate.

I actually appreciate that.

Great. And so can I ask the Clerk to start Dr Webb’s questions again so that I give you the maximum amount of questions that you can have in this call. Thank you.

OK, thank you for that.

One of the things I’m interested in is the question of prosecutorial conduct, because there can be situations where prosecutors either, in the worst cases, are intentionally late or obstruct the provision of evidence; or, much more likely, unintentionally do that. One of the problems with cap reductions is it reduces the ability to respond to that kind of misconduct.

A tabled amendment I haven’t talked about yet is in respect of new section 9G and it’s really, again, about late pleas. Where there is a late plea—for example, to give you the most concrete kind of example: the police don’t provide a critical document which is incriminating and, perhaps entirely without fault, a witness comes forward at the last minute and says, “Look, I’ve got this document and it is conclusive.” So the plea is essentially a “steps of the court” plea. Now, that is not the defendant’s fault. The defendant and their legal counsel assessed the matter on the basis of the disclosure that was given to them. Now, I accept that the victim has not had the benefit of an early plea—kind of the first opportunity—but I guess the point is this: the first real opportunity, the first informed opportunity, and the first opportunity where the police had presented all of the evidence to be put in court is on the doorstep of the court.

My proposed tabled amendment would add to section 9G a subsection (5) that would read, provided that where any late plea “can be attributed in whole, or part to failures or misconduct”—and I think failures is important—“of the prosecutor or the prosecuting authority, then the judge may impose such maximum reduction as he or she considers appropriate in all of the circumstances not exceeding 25 percent.” I mean, I don’t like that 25 percent, but that’s the maximum cap this legislation imposes. I’m particularly interested in how we factor in these other cases where the lateness of the plea is due to other circumstances. Of course, I’ve previously spoken to extremely complex legal cases—a fraud case where whether something is a fraud or not can be very, very hard to understand. So I’m interested in that.

I guess this relates also to the whole question of manifest injustice, because I think the Minister of Justice, when I’ve raised a different issue, has kind of bashed it away with, “Oh, yes, but manifest injustice sorts that out.” But manifest injustice is actually—you know, manifest injustice is injustice which is really bad. You can have injustice which apparently is not manifest, and my point is with a late plea due to prosecutorial misconduct, that is unjust.

Now, to say that “If it’s a bit unjust, we’ll get away with it” is really bad legislative process. So how are we going to make sure that the sentence imposed on an offender who’s given documents at the last minute is not unjust? And will you adopt that tabled amendment which would make sure that prosecutorial misconduct can be taken into account to get a just outcome?

Thank you, Madam Chair—yes, that was me. Awesome to take just a short call on this, and I don’t want to repeat what anybody else has—taking your point in regard to that. But, Minister Goldsmith, if you can just—the mitigating factors in Part 1 of this particular bill. I’m fathomed, because this is exactly what the cultural reports did for Māori in the system, and we know that Māori are overrepresented in the justice system. We know that we make up 50 percent of the male prison population, 67 percent of the female prison population. We’re five times more likely to be sentenced than Pākehā for the same crime. So the mitigating circumstances for Māori families must be taken into consideration, and I just want to take into consideration as to why the cultural reports were declined by this particular Government, in this particular Parliament—absolutely fathoms me, because it did the same thing, but what it did allow was for lawyers and for judges to make their decisions when it comes to sentencing, based on those cultural reports.

I see this as similar but not the same, right—but not the same. What this tells me is that mitigating circumstances for non-Māori will be a lot easier because there’s no focus on those particular things. We know that Māori youth also have higher—and are more disproportionately targeted in that particular phase.

I just want to pick up on what Dr Duncan talked about not so long ago: the mitigating factors as to why our youth are in that particular predicament in the first place. I look at the complex, interrelated challenges that many of our rangatahi face. Across the Youth Court population, there are higher rates of neurodisabilities, fetal alcohol spectrum disorder, traumatic brain injury, dyslexia, autism spectrum disorder, exposure to family violence, dislocation from schooling, and the history of trauma, and what are these mitigating factors—consider any of those things when sentencing is applied to young Māori, who will then make up the 50 percent of the male prison population or the 67 percent of the female prison population.

So does this bill, in Part 1, ease the pain of Māori making up that particular amount in terms of the population incarcerated by the justice system? Those are the questions I have. Does this bill ease the pain for Māori in those percentages, and does it consider what the cultural reports were there to ensure, which I think you’re trying to do here but it actually doesn’t go that far to ensure that those cultural reports—because that’s the cultural part of it, right? Yes, there are mitigating factors in terms of some of the disabilities that maybe some of these kids and some of their parents and some of their adults have, but what it doesn’t do is actually look at the cultural background, the intergenerational trauma and all those types of things that a cultural report would’ve done. Could you answer those, please, Minister?

In response to the previous speaker, Rawiri Waititi, it is my hope that this bill will ease the pain, particularly for Māori victims of crime. Yes, Māori are overrepresented in the prison population. They are also overrepresented amongst the victims of crime and have a real interest in seeing that justice is done and that part of the justice response is real consequences for crime. Of course, the sentencing framework is only one part of the justice response, and, yes, we’ve got a real focus on rehabilitation and a real focus on dealing with those drivers of crime that the member referred to, like not being in school. So we’ve got a real focus on truancy to help deal with some of those drivers of crime at the same time. So absolutely that is the desire.

In terms of the cultural reports, what this Government did was stop the cottage industry that developed around the writing of those reports but the Sentencing Act still, obviously, provides the opportunity for the background of the offender to be taken into account. What this bill does is put a limit on the total discounts that can be applied.

Finally, in relation to Mr Duncan Webb’s references around prosecutorial misconduct, that is excluded from the 40 percent cap as it’s not a personal factor.

I move, That debate on this question now close.

Now we have quite a number of votes to be taken on Part 1, so I’m just going to give the Clerk the opportunity, as she’s just arrived, to get her paperwork in place.

The question is that Dr Lawrence Xu-Nan’s amendments to Amendment Paper 244 set out on Amendment Paper 250 be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendments to Amendment Paper 244 set out on Amendment Paper 253 be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 244 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 5 be agreed to.

The question is that Helen White’s tabled amendment to clause 5, inserting two new subparagraphs into new section 8(f) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 5A be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendments to clauses 5A and 7 set out on Amendment Paper 249 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new clause 5B and, in clause 7, to delete new sections 9C, 9L, and 9P be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendment to delete clause 6(1) set out on Amendment Paper 252 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 6, deleting new paragraph (cb) in section 9(1), be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendments to clause 6, inserting paragraph (cd) into new section 9(1) and deleting the crossheading above clause 6(1), be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to clause 6, deleting new paragraph (fd) in section 9(1), is ruled out of order as being inconsistent with a previous decision of the committee.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to delete clause 6(2B) be agreed to.

The question is that Dr Tracey McLellan’s tabled amendment to clause 7, inserting subsection (2A) into new section 9B, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, new section 9E, be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to clause 7, deleting new sections 9EA and 9NA, 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 7, inserting subsection (3) into new section 9EA, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendments to clause 7, deleting new sections 9G, 9H, and 9I, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting subsection (1A) into new section 9G, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting subsection (1B) into new section 9G, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting subsection (1C) into new section 9G be agreed to.

The question is that

the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing subsection (4) in new section 18 be agreed to.

The question is that

: The question is that Dr Lawrence Xu-Nan’s tabled amendments to clause 10 be agreed to.

: The question is that Helen White’s tabled amendments to clause 10, new section 80GA, be agreed to.

that the Hon Dr Duncan Webb’s tabled amendment to clause 10 inserting paragraph (d) into new section 80GA(3) be agreed to.

The question is

hat the Hon Dr Duncan Webb’s tabled amendment to clause 10 deleting subsection (4) in new section 80GA be agreed to.

The question is t

that the Hon Dr Duncan Webb’s tabled amendment to clause 11 replacing paragraph (d) in new section 80ZLA be agreed to.

The question is

that the Hon Dr Duncan Webb’s tabled amendment to clause 11 inserting paragraph (e) into new section 80ZLA be agreed to.

The question is

Dr Lawrence Xu-Nan’s amendment to insert new clause 11A set out on Amendment Paper 251 be agreed to.

The question is that

the Hon Dr Duncan Webb’s tabled amendment to clause 13 inserting subsection (2B) into section 106 be agreed to.

The question is that

Members, we now come to Part 2. Part 2 is the debate on clauses 17 and 18, “Amendment to Family Court Rules 2002”. The question is that Part 2 stand part.

Thank you, Madam Chair. I do have some questions about this, and it may seem relatively technical, with clause 18 making what looks like a minor amendment to delegated legislation, namely the Family Court rules. It ties in with section 123B of the Sentencing Act, and that provision in the Sentencing Act 2002 essentially says that if an offender is convicted of a family violence offence and there is not currently in force a protection order, then the court may order a protection order. That makes perfect sense, but this actually does something quite significant in conjunction with clause 14 of the bill. What it does is it extends that power to people who are not convicted of an offence, so the court can put in place a protection order, under this rule change, where the person is either convicted of an offence or has been discharged without conviction for an offence.

Now, don’t get me wrong—there’s a real place for protection orders in the absence of conviction but where violence is proven, but where there’s a discharge without conviction, that discharge may occur for any number of reasons. I’m wondering, Minister, whether this is an acknowledgment that because of these ridiculous sentencing rules that you’re putting in place, judges are going to have to default to discharges without conviction because they’ve got a choice between a sentence that is entirely unfair and providing a discharge without conviction. And that’s a really problematic dilemma for them to be in, because if we’ve got a victim of family violence, we shouldn’t be giving powers to the court to make what are, in a sense, punitive orders where there is a discharge without conviction.

So I have real concerns that you have caused, essentially, a distortion in the law here by saying, “You might get a discharge without conviction but we’re still going to impose an order on you even though you have not been found guilty of that offence”, and the underlying policy reason is that you know that discharges without conviction are going to rise, and there will be situations where under the current law people wouldn’t get a discharge without conviction but in considering a discharge without conviction, the job of the judge, under the Act, is to actually determine whether a conviction would be disproportionately severe. And because you’ve just turned up the temperature on all of these sentences, it’s much more likely that it will be disproportionately severe.

So you’ve got yourself into a pickle because the discharge without conviction will still be there but we know, in fact, that the offence occurred. It’s only the sentence that the judge will be compelled on conviction to impose, which makes it entirely disproportionate to enter that conviction. So we’ve got a real dilemma, and in fact this is the kind of thing that’s going to happen. People are going to be less safe in this kind of situation because of these discharges without conviction. And you’ve now got a situation where you’ve got orders which should follow conviction now following from discharges without conviction.

Now, I’m aware that a discharge without conviction usually requires the offender to accept responsibility for the offending but it is the opposite of a finding of guilt. It’s a finding that says the court is not interested in intervening here. For whatever wider policy and justice reasons, it is going to discharge this matter. It is going to send it away. It’s saying it’s, “not going to make a finding adverse to you. Nor are we going to find you not guilty. We’re simply going to discharge you and bring this matter to an end because in terms of wider policy issues and the justice of this particular case, that’s the right thing to do.”

So you’ve got yourself into a right bind here because that’s going to happen a lot and I’m wondering if that’s really why you’ve done this protection orders.

Well, thank you for the wide speculation by the previous member, the Hon Dr Duncan Webb, on the potential elements of this. This is quite a very tightly detailed piece of the legislation. In terms of protection order, it is important that if a judge considers the conduct warrants a protection order, that they can grant one. That’s what this clause refers to. That prevents victims having to make a separate application for a protection order and saves court time, which is better for the victims of crime.

Thank you, Mr Chair. I just want to follow up on what the Minister of Justice has just said. I do want to check in terms of the policy intent behind clause 18 of Part 2, because, understandably, this has victims of family crime as the focus here. But I do want to specify that section 106 of the Sentencing Act specifically says that when you’re looking at discharge without conviction, it amounts to an acquittal, which then begs the question: if we are giving protection orders to people but without any sort of subsequent guidance, what advice has the Minister received in terms of whether this is something that is actually beneficial to victims of family crime? Because one of the things that we do see when it comes to victims of family crime is the fact that, often, if it is not dealt with carefully in terms of conversations with, or education of, the offender, we do actually see that things could possibly get worse.

I get what the Minister is saying—that he doesn’t mean that the victim needs to make a separate application for protection order. But I wondered if what we’re doing here is very much the last resort, bottom-of-the-cliff kind of approach, whereas what we’re not seeing here is what is actually beneficial for the victims and what are the tools that allow an offender, in those circumstances, to be aware and to be able to change their actions or change their perspective because of the fact that there is a guidance, a kind of an education, following on.

So my question is sort of around the policy intent of this. Again, going through the department report, this is not an area that was discussed in detail, but like the previous speaker, the Hon Duncan Webb, said, it is reasonably significant, because when you are acquitted of a crime, you are supposed to be able to have no potential punishment or repercussions as a result. And there are other factors that will intervene from a New Zealand Bill of Rights Act perspective as well, which also wasn’t something that was explored in the Attorney-General’s report.

So I just want to get some clarity around: if this was supposed to provide support and be beneficial to the victim, what is the evidential basis for that?

Thank you, Mr Chair. So the way I understand this is that for a section 106 discharge without conviction, that means that in instances where there was no consequential sentencing or conviction on the record, you would still be able to have a protection order in place if the court thought so. And I would assume—and the Minister of Justice might want to clarify this because it leads into my question—that the judge would then be determining, on the facts before them, when that would apply in terms of a section 106 discharge. So if the Minister could just give us an indication, because the whole kind of purpose of this bill appears to be to limit or curtail judicial discretion, so I’m just interested to understand why in this particular area he’s OK with judicial discretion.

Because the proposed amendments in the Act and the combination of the implementation of three strikes, which has already been put in place, represents a really significant shift in the willingness of limiting judicial discretion and, effectively, restricting judges and having a prescriptive sentencing framework that makes sentencing less efficient. So I’m interested to note why there’s this carve out here for section 106, “Discharge without conviction”, when the entire kind of ambit, the purpose, of the bill is to strip away the discretion of judges.

I’d like to point out—I think it’s important, and even the regulatory impact statement notes this—the fundamental problem with this approach is it limits the judge’s ability to consider the circumstances particular to the case and to deliver an individualised sentence. Conversely, it really could be argued that a far more prescriptive approach to sentencing might have some benefits—and I’m sure he’ll argue it—but how does he map out section 106 discharges differently to the rest of the bill, which puts significant limitations on judicial discretion? He’s been picked up by the New Zealand Bill of Rights vet in saying that the existing framework has got real issues for when the judges are having the ability to look at what is before them to make an appropriate sentencing and a determination based on the facts before them.

So in a nutshell, my question is: what’s good for the goose should be good for the gander; why is the Minister saying that it’s fine to take power away from judges in one part of the bill, but in this part of the bill you’re saying they’re able to say, “Oh, you still get a protection order in place even if you’ve had a 106 discharge.”? We heard—at the Justice Committee, stakeholders quite clearly advised that limitations on judicial discretion have unintended consequences, and these risks do include legal challenges on procedural grounds for breaches of the New Zealand Bill of Rights. A prescriptive approach can drive significant court delays—and we know the Family Court which this would apply to in this provision, under clause 18 of Part 2, has already got significant delays in the system. So they have complex and big problems long term, and those delays—we know—plague our justice system. Officials have made it clear that they consider it important that judicial discretion is maintained right across the various amendments in the bill, so it is unclear why this this part in Part 2, clause 18, rule 431B is different.

Under this bill, the changes proposed, if implemented, have a really big impact on the ability of judges to weigh up the information before them, take into consideration the victim, the family, what’s happening in these situations, and to be able to use the breadth of their knowledge and understanding of the law to make sure that there’s an outcome that keeps communities safe, that reduces the chances of reoffending, and also gives fairness before the law. So I’m really interested to note why the Minister feels so strongly about curtailing judicial discretion, yet here the Part 2 of the bill there is a specific—it appears to be a carve-out for a section 106 discharge without conviction still being able to have a protection order in place. In this instance, that would be a discretion of the judge to determine when that would apply. So where is it OK for a judge to have some independent consideration and when is it not?

I’ll just respond briefly. This legislation doesn’t change the threshold for the granting of protection orders, and so we’re not dealing with that. All it does is it stops the need for a separate hearing on matters. So that prevents victims having to have a separate application, which saves court time, which I think the member just said she was concerned about—and that is the purpose of this whole bill.

I move, That debate on this question now close.

The question is that Dr Tracey McLellan’s tabled amendment to the Schedule be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendments to the Schedule be agreed to.

The question is that Helen White’s tabled amendment to the Schedule inserting new clause 24A be agreed to.

Members, we now come to our final debate, clauses 1 and 2. This is the debate on clauses 1 and 2, “Title” and “Commencement”.

Thank you, Mr Chair. I wanted to talk, first, about the title. Of course, the idea of the title is that it captures and gives good indication of the content of the bill. There’s one word in there that really shouldn’t be in there, and that’s “Reform”, because what a reform does is it changes things for the better, and, Minister, you have changed things for the worse. I’m not sure what the opposite of “Reform” is. Perhaps “Retrograde” or some such word would be appropriate, but this, certainly, is not a reform bill. We have not reformed sentencing law. What we have done here is we have, essentially, made it substantially worse by reducing—the centrepiece of this bill, across all of its provisions, is to reduce the discretion of the court to impose a sentence which is fair to both the victims and to offenders and answers to the community’s demands in terms of its reprobation, its signalling of the unacceptability of the conduct in question. That’s why I’ve suggested that we should, as in my amendment, just call it the “Increased Sentences Amendment Bill”, because that’s all it is.

Reformity for victims. Reformity for people in South Auckland.

It’s just “What should we do about crime and justice? Increase sentences.” We can hear people harping away, saying that’s a good thing, but the fact of the matter is that all of the work done, so-called work done, in law and order is having no effect. Violent offending is up, and the gangs are doing a thriving trade in meth. And this kind of thing is having no effect. It’s taking us backward. It’s a retrograde, not a reform, bill, and we should call it what it is: the “Increased Sentences for No Particular Purpose Whatsoever Bill”.

As we come to the concluding stages of this bill, it surprises me that you’ve got a bill that you’ve had the audacity to call a reform bill when all of the advice that you’ve got from your officials is “Don’t do it”. The Chief Science Advisor has said it doesn’t work; it doesn’t reduce crime and, in fact, has the opposite effect, because if you’re going to impose penalties which are excessive—and by your own pen, you’ve agreed that, because you’ve only said that there’s an out if it’s manifestly excessive; you’re quite happy with excessive penalties. If I recall rightly, in this Chamber, you actually said words to the effect of, when asked at question time, “That’s the point.”

And so here we are. We’ve got a “Minister of Injustice”, a Minister who is, in fact, intentionally imposing sentences which he knows are excessive. So call it what it is; it’s a rubbish bill. Call it a “Sentencing (Increased Sentences) Amendment Bill”, but don’t call it a reform bill, because it’s not reforming anything. It’s taking New Zealand backwards. The short-term and long-term effect will be more people in our prisons, which is a Petri dish for crime and criminal behaviour and gang membership. Maybe you should call it the “Sentencing (Helping Gangs Recruit New Members) Bill”, because that’s effectively what you’re doing. We will pay the price for this for many years to come. It’s ridiculous to call it the Sentencing (Reform) Amendment Bill because it’s not; it’s doing the opposite. It’s taking us back decades.

When we look back, decades into the future, at the harm that this will be doing through tying the hands of judges so that they can’t do the best for New Zealand in the long term, using the skills and expertise that they have, it’s a sad day for New Zealand law.

Thank you, Mr Chair. I want to start by going to clause 2, “Commencement”, which says, “This Act comes into force 3 months after Royal assent.” I want to check first with the Minister of Justice whether the Minister would consider my amendment that would change “3 months” to “6 months”, which is in line with other bills that we introduce of a similar nature—for example, the review of the three-strikes legislation. The rationale for that is mainly the fact that in Schedule 1—very similar to when we discussed the three-strikes legislation—in subclause (1), what we’re seeing here is a retrospective penalty, and, in this case, it is a retrospective penalty for young people, because, in fact, what you are telling them is that if they have a previous criminal conviction, it means that that would stand and the youth mitigating factor would not apply.

That is a retrospective penalty, and there has been no part of the discussion that we’ve had in this committee stage that has given us any reassurance that either the court or the Minister has had any advice on how they’re going to be able to reach out within the three-month period to those young people who will be told “By the way, if you offend again, you are not going to be entitled to the youth mitigating factor.” That is not being made very clear, so I think that if we are looking at moving it from “3 months” to “6 months”, then it might actually, possibly, give the system just a little bit of extra time for them to contact those people, or even find out who they are, as opposed to saying, when they offend again, “By the way, sorry, you’re no longer eligible.” I think that is a very cruel way of dealing with and a very cruel way of looking at the young people who do offend in our criminal justice system.

But going on to the title of this bill, I wholeheartedly agree with the previous speaker the Hon Dr Duncan Webb in his analysis that this is not a reform. There are many other words that start with the prefix “re” that we should be using. I think that “retrograde” is a good one. “Retrospective” is another good one. “Repugnant”, possibly—because this is what this bill does. This bill, against all the advice from the officials, is not going to actually help reduce our crime.

It is fearmongering and virtue signalling—and, by the way, I would like the Minister to consider that particular amendment to the title. It is a virtue-signalling and fearmongering tactic, and it does not work. We have seen that it does not work. Globally speaking, from an OECD perspective, we, in Aotearoa, have one of the highest incarceration rates in the OECD countries. We have seen punishment and further punishment in the US criminal justice system, but that has not brought down their crime rate.

This particular bill, in terms of the title, is fundamentally against the intention and purpose of this bill. Just on a serious note, I would agree that maybe the Minister should consider something that actually speaks more to the bill itself, which is on one of my amendments, which is the “Sentencing (Discount Path and Other Matters) Amendment Bill”, because, essentially, this is not about a reform. What we’re saying is we are putting in a cap of 40 percent as part of the mitigating factor of discount when we’re looking at sentencing. That was the crux of this bill, and, again, that also goes against all of the advice that we received as part of the select committee process, that goes against the advice that we have heard here in the committee of the whole House, and that goes against the advice of the submitters that we have seen, whether they were lawyers, whether they were from the Law Society, or whether they were from Community Law. So I think—[Interruption]

Point of order, Mr Chairperson. The member across is walking around and yelling, and it’s well out of the Standing Orders to leave your seat and heckle.

That’s right—sorry, my apologies.

Yeah, if the member could be seated, that would be appreciated. Please continue, Dr Lawrence Xu-Nan.

Thank you, Mr Chair. So, for me, I would like to see if the Minister would consider making an amendment to the commencement date from “3 months” to “6 months” to give more time to actually let young people know that there is going to be a retrospective penalty coming their way. I would ask if the Minister would also consider, on a more serious note, I guess, my amendment to the title that is more true to what the bill is about—if that is something that the Minister would consider.

Just briefly in response to the member Lawrence Xu-Nan’s question about if I considered changing the commencement from three months to six months: yes, I have considered it, and I’m not going to do it.

In response to the changes of the names, I think they’re all just cheap, political shots and I won’t be responding.

Thank you very much, Mr Chair. I’d just like to speak in support of the amendment that is being discussed presently, put forward by Lawrence Xu-Nan in terms of extending that commencement date from three to six months, and specifically in relation to the additional training of the judiciary for such a substantive change to the way that our sentencing will occur. I note that the Minister of Justice has just responded by stating he did give consideration to extending the commencement date of this particular piece of legislation but he did not furnish it with any further information as to what he weighed up and how he arrived at his decision not to extend that period. For such a substantive change in terms of how judges will now be operating, once this legislation comes into action, there would need to be significant changes in the way that judges are trained in terms of enabling them sufficient time to be able to provide the warnings, to be able to notify those in front of them.

I would like to understand from the Minister exactly how he’s arrived at not extending this to a significant period, given the extensive change this will make to how judges now operate and how it curtails judicial discretion. There will no doubt be instances coming if this is just steamrollered through and put forward in a three-month period. I think it is incumbent upon the Minister to explain what due process has been undertaken through the Ministry of Justice and also through working closely with the judiciary, to understand if they are fully on board with the changes that have been pushed through with this legislation.

From my understanding and experience, both from working within the Ministry of Justice and also being a Minister, changes like this require a significant change programme in order to have the reassurance that legislation will be able to be rolled out and enforced in a way that makes sure that that it’s working properly, as intended by this House when passing legislation.

We know that in the regulatory impact statement there have been significant concerns raised by officials right through this process, including the select committee process, that it actually impedes judicial discretion and stops judges doing the very job that they are put in there to do. So I think there needs to be some considerable consideration about whether this can be effectively implemented in just a three-month period. There seems to be a recurring theme with this Government that we have officials fronting up at the Justice Committee saying that longer is required to effectively implement legislation and make sure it has the intended consequences.

So there are some quite big concerns at the rate of things being done, simply as a tick-box exercise to demonstrate that this Government has done what it said it would without actually really looking at the detail of how it will be implemented in practice. So I think it is incumbent upon the Minister to give this committee a level of reassurance that there has been a work programme developed, that there has been a level of engagement with the judiciary, and that there is an ongoing understanding of how this legislation will in fact operate in courtrooms once it becomes law.

Stakeholders quite clearly advised the Justice Committee that the limitations on judicial discretion would potentially have unintended consequences. I think it is important that the Minister at least demonstrates to this committee that he is aware of what the potential unintended consequences are of this bill and how he has taken those into consideration when engaging with the judiciary, and whether or not he is fully confident that a three-month implementation period is sufficient to make sure that this bill will actually do what he hopes it will.

I move, That debate on this question now close.

The question is that Dr Tracey McLellan’s tabled amendment to clause 1 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 1, replacing “Sentencing (Reform) Act” with “Sentencing (Discount Cap and Other Matters) Amendment Act”, be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to clause 1, replacing “Sentencing (Reform) Amendment Act” with “Sentencing (Fearmongering and Virtue Signalling) Amendment Act”, is out of order as not being an objective description of the bill.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 2, replacing “3” with “6”, be agreed to.

Madam Speaker, the committee has further considered the Sentencing (Reform) Amendment Bill and reports it with amendment. I move, That the report be adopted.

The bill is set down for third reading immediately.

I present a legislative statement on the Sentencing (Reform) Amendment Bill.

That legislative statement is published under the authority of the House and can be found on the Parliament website.

I move, That the Sentencing (Reform) Amendment Bill be now read a third time.

This bill is a significant piece of legislation that delivers on the coalition Government’s manifesto commitment to restore law and order and to ensure that there are real consequences for crime. It also delivers on a specific promise in the Government’s third-quarter action plan to introduce legislation that ensures real consequences for criminals.

Under the previous administration’s misguided approach to crime, which focused on reducing the prison population by 30 percent regardless of what was going on in our communities, we saw an alarming increase in violent crime, ram raids, and aggravated robberies. Why? Well, in part this was because criminals knew that they would get away with a slap on the wrist and light sentences. We know that the undue leniency has resulted in a loss of public confidence in elements of sentencing and in our justice system as a whole. And we’ve developed, sadly, in this country, a culture of excuses for crime—that ends this week.

The reforms have three key objectives: making sure the punishment fits the crime, restoring the principle of personal responsibility, and better recognising the victims of crime. First and foremost, our reforms today, which will pass, will limit sentence discounts that judges can apply to 40 percent. Kiwis are sick and tired of seeing brazen criminals who have been convicted of serious offences—offences sometimes resulting in the death of fellow New Zealanders, people who are sons or daughters or loved ones of New Zealanders, or injuries that blight their lives for ever. People who have been convicted of these crimes are receiving massively discounted sentences for a whole variety of reasons, sometimes to the extent of not actually being imprisoned. In recent years, we’ve seen serious crime increasingly coming before the courts, but the response has been counterintuitive—a reduction in the use of imprisonment and shorter prison sentences overall—much to the dismay of victims.

Parliament, through this bill, is sending a different message: we’re putting a limit on the overall discounts. There’s been a lot of debate around this: “Oh, is this somehow unconstitutional or unfairly or inappropriately limiting judicial discretion?” Of course, Parliament sets the sentencing framework, and the framework in New Zealand is currently that a maximum sentence is put down in legislation, and there is judicial discretion under that. We could do things in a different way. We could have minimum sentences; we could have mandatory sentences. We haven’t moved to either of those things in relation to this, but we have, through Parliament, sent a clear message that we’re not content with very substantial discounts for a host of reasons, and we want to put a limit on it.

It is disappointing that the Labour Party is opposing this. We heard on a number of occasions after the election—there was a reflection, I remember, from the Leader of the Opposition, Mr Hipkins, saying that perhaps they had been too slow to respond to retail crime and community concerns about these issues. Perhaps they reflected upon that, but they seem to have forgotten that message. They seem to have forgotten and they’ve gone back to their old ways, which is to never support changes that will actually bring real consequences for crime.

Of course, I’m not surprised that the Greens don’t support this and they refer to this as “fearmongering”. If you talk to the victims of crime in our community, if you go down to a main street of Papatoetoe and talk to the retailers who are suffering and living in fear and surrounded by cages in their stores because of the extent of violent crime—if you say that they’re fearmongering, I think you will find you get a very hostile response. What we’re focused on is making some real progress.

Secondly, we’re putting an end to the repeated discounts for youth and remorse. We believe a sentence should primarily respond to a person’s decision to commit a crime, not solely focus on their circumstances and background. It’s particularly frustrating for victims when offenders receive a sentence discount for expressing remorse—not once but in every subsequent instance of reoffending. So we absolutely want to make some allowance when a young person—and when we’re talking about a young person, we’re talking about people typically between the age of 18 and 25; we’re not talking about 12-year-olds: that’s dealt with separately. Yes, you can get a discount for being young and remorseful, but not on multiple occasions—that makes a mockery of the justice system. These reforms will restore the principle of personal responsibility. And we particularly want to condemn certain types of offending, such as where the offender live streams or posts their actions online, or where an adult offender commits, or was party to, an offence committed by a child or a young person. On those occasions, we’re thinking of when you have an adult driving a car with a bunch of teenagers doing a ram raid—well, that adult needs to take greater responsibility because they have led younger people into a crime.

Importantly, this bill will recognise the needs of victims, particularly those who have suffered from years of increased retail crime; encourage the use of cumulative sentencing for offences committed while on bail, in custody, or on parole; amend the principles of the Sentencing Act to have a stronger focus on the victims’ needs and interests; and introduce a suite of new aggravating factors for offenders who are targeting victims working alone—those whose homes or businesses are interconnected—and public transport workers as well. But I particularly think of people working in dairies, for example, where they’re living upstairs and they’ve been subjected to ram raids or violent offending downstairs. That has a horrendous impact on the family due to the fear that is associated with it. I’m frankly amazed and shocked that we’re not getting support across the House for this legislation. Retail crime increased by 85 percent between 2019 and 2023, including a 91 percent increase in victimisations relating to theft. Small-business owners have been left feeling powerless and at the mercy of those who robbed their livelihoods. It’s only right that offending against people who live in fear of theft and assault, often with their families nearby upstairs, result in a tougher sentence.

The sliding scale for guilty pleas will be intimated with a maximum sentence discount of 25 percent if a guilty plea is made at the earliest opportunity. But we’re not going to give 25 percent if it’s on the morning of the trial; only 5 percent is available at the last minute. Earlier guilty pleas will spare more victims from having to prepare for and give evidence at trial, and they will help improve timeliness, so we’re determined to do this.

We also see the opportunity to progress a couple of recommendations from the royal commission of inquiry into abuse in care—specifically, amending the existing aggravating factor that requires the court to consider that particular vulnerability of a victim, by adding in State or faith-based care as an example of vulnerability which may be known to an offender when the offence was committed; secondly, the requirement for the court to consider additional aggravating factors in cases involving violence against, or neglect of, a child under the age of 14, so that they can also apply to cases involving a young person who is under the age of 18. They were recommendations of the royal commission, and we’re happy to progress them in this legislation.

I extend my thanks to the Justice Committee, the Sentencing and Rehabilitation team at justice, and the Parliamentary Counsel Office for their work to help this passage of the bill through the House.

In conclusion, we’ve set two clear targets: ensuring that there are 20,000 fewer victims of violent crime by 2029, and also reducing serious repeat youth offenders by 15 percent. This is a significant milestone in this Government’s mission to restore law and order. It signals to the victims of crime that they deserve justice and, to the wider public, that the Government is committed to ensuring that they feel safe in their homes and in their places of work. I commend this bill to the House.

The question is that the motion be agreed to.

Thank you, Madam Speaker. I mean, criminal justice isn’t simple, and it’s not simplistic, and that’s what this bill is. I’ve found it a little hard to listen to the Minister of Justice talking about how his Government is allegedly making progress on a target to reduce victims of serious crime or violent crime by 20,000 when, in fact, they’ve gone up by 6,000 and the best he can do is find a tweet with some misleading figures to trumpet his Government’s success.

This bill is a knee-jerk reaction. Look, in other areas we are supporting the Government’s work, particularly around the experience of victims in court, and we agree that there’s work to be done and we need to do better in looking after victims. But sentencing, in particular, is a very difficult task. The community does want to see punishment, but the State and the court has a critical role in standing between victim and offender, between the community and the offender, and balancing a whole lot of competing interests. That is why we have judges—judges who can stand back, listen carefully, and balance those competing considerations.

The Minister, straight out of the National Party election playbook, talks about real consequences for crime. But when we look at sentencing, we’ve got to ask: what are the objectives? And they’re, in fact, set out in the Act. And they’re in no particular order, but right up there is to hold the offender accountable, as well as to provide for the interests of the victim of the offence. But equally in there is to assist in rehabilitation and reintegration to protect the community from the offender, if necessary. That’s all in section 7 of the Sentencing Act. If we take that together, criminal justice has a difficult and complex project of not only dealing with this offender but creating a community in the future which is safer than the one we have today.

This doesn’t do that. Most fundamentally, this doesn’t do that because it removes from the judge the ability to weigh up what the best response to offending is. Sometimes the offending is serious and the offender is irredeemable or the crime so vicious and violent that the community needs it to be marked out by a long term of imprisonment. I get that. In other circumstances, that is not the case. The offender and the community—the offender will be better off, the victim’s needs will be better addressed, and the community will be safer if a different sentence is imposed or a shorter period of imprisonment or better reintegration or rehabilitation or home detention or alcohol and drug treatment. There’s a whole world of possible responses out there, but this Government is saying, “No. Just put them in prison for longer.” That is the extent of their thinking around justice policy.

The Justice Committee, as it listened to submitters and looked at evidence, had a stream of thoughtful submitters, coming in and saying, “This is taking the wrong path.” But the Government was not interested in it. And consistent with what it’s done in other areas, it’s just saying, “We’ve said we’re going to do it. We don’t care about the evidence, so we will press on regardless.”

One of the real problems with this is that it will distort judges’ behaviour. The judges, through many years, have a set of guiding principles for sentencing. One of those is assessing a starting point. Looking at the circumstances of offending and saying, “Well, given those circumstances of offending, the starting point for consideration of the sentence is here.” So it might be a serious assault with a 10-year maximum sentence. They’ll look at the overall circumstances and say, “Well, for this kind of offending, I would start at seven years and then apply discounts.” And it’s worked—that process has worked—and aggravating factors as well.

What we now have is a rule that says, “You can get a maximum discount of 40 percent from the starting point.” So if a judge wants to give a lower sentence, what are they going to do? They’re simply going to lower the starting point. There’s no rule against lowering the starting point. They’re going to look at it. They’re going to backwards reason: “That offending deserves imprisonment of three years. To get that within the 40 percent discount rule, I need to lower the starting point accordingly.” So all of a sudden—and this is what fiddling with these kinds of matters does, particularly in reducing discretion—they’ll just get a workaround. That’s one problem.

The other thing that I’m actually more concerned about is discharges without conviction. Now, there’s no particular rule about when or what kind of crime you can get a discharge without conviction for. The question is whether the conviction would be a disproportionate punishment, given the circumstances of the offending and the nature of the offender, and so on and so forth.

Now, if you’re going to make sentencing by definition excessive, by definition unjust, then recourse to discharges without conviction will increase. That’s problematic, because there are circumstances right now where you wouldn’t get a discharge without conviction but tomorrow you will. So you’re having an opposite effect. This is the perversity that happens when you go in with a slogan and make it policy. Slogans make bad policy.

It may well be that there’s work to be done in sentencing. For a long time there has been an argument that sentencing should be removed from the political arena but that judges should be given guidance—that they need a unifying principle. On the other side of the House, they would say that there’s been this tendency to give softer and softer sentences. Well, is that true or false or is it just an impression we have through the media? Well, a sentencing council which looks at sentences—and I know the Minister’s had meetings overseas about the sentencing council. It’s a good idea because we need to depoliticise this, because we’re not making the community safer by just simply having a blanket approach to sentencing. If we are going to say we need better guidance to the judges, then a sentencing council is one way to do it and a very useful way where you have the ability to look over all of the decisions being made, see where there are wrinkles, see where there are inconsistencies, and provide guidance and advice that the judges are expected to pick up. So that’s a further thing that is well worth consideration.

The other thing in here is that there are just some outright injustices. So, for example, the remorse discount—that if you come and you convince the court that you’re genuinely remorseful, the court can take that into account and reduce the sentence imposed. You want to see that it’s real. You don’t want crocodile tears, I get it—absolutely appropriate. But you can’t get it twice. But there’s a carve out. You can get a discount twice if you provide compensation. So the court can take into account compensation to victims—a payment for the harm that’s been caused. So people who can afford to make compensation can, effectively, get remorse discounts every time they pay. But people who can’t afford to make compensation payments can’t get those discounts. That’s just one of the kind of twists and turns of this bill in trying to pander and not taking a careful, considered, evidence-based approach. By not taking the time to develop policy, rather than just implementing slogans, we’ve got a bad piece of legislation.

We all want a safer community. We all want victims to be accorded their rights and treated with respect. We want fewer victims overall. And we do want to set aside serious offending and show the community disgust and distaste for it. But this bill doesn’t do that. It just increases longer sentences.

Thank you, Madam Speaker. I rise on behalf of the Green Party of Aotearoa to oppose this bill strongly. Here we are talking yet again about a bill that does not genuinely serve our communities. This bill, for what it’s worth, is complex, and there will be repercussions from this bill for years and generations to come. Future generations will look at this bill as a repugnant bill that will harm and will not break the vicious cycle that we are seeing in Aotearoa in our criminal justice system.

Let’s start with some of the things we discussed during the committee stage. Fundamentally, we know that one of the fundamental principles of Aotearoa’s constitutional arrangements is the principle of comity, whereby the legislature and the executive are separate and independent from the judiciary and that the court system is allowed to operate independently and fully in its own right. We have heard from submitters that this bill particularly about the limitations—the 40 percent cap on discounts to sentencing—that go against that fundamental principle of our constitutional arrangements.

We have questioned the Minister of Justice during the committee of the whole House stage over and over again, but all we received from the Minister are sound bites and hot takes and not actually evidence-based material. We know that the Minister and the Government are not using evidence when it comes to deciding a bill like this.

We questioned the Minister around our concerns when it comes to party liability. The Minister never once mentioned how the introduction of section 66 of the Crimes Act 1961 on party liability would further harm particularly women in abusive relationships, because if they are an accomplice to a crime, there is no way for them to withdraw from that in our current legal framework, yet they are being punished both under the Crimes Act and now under the Sentencing Act. That is not about victims.

We have seen that by not allowing young people the opportunity—because apparently when you commit a crime, and if you commit a crime again, suddenly you’re not young any more. That fundamentally goes against our agreement under the United Nations Convention on the Rights of the Child and other international legal instruments, not to mention the United Nations Declaration on the Rights of Indigenous Peoples, when we are looking at a bill like this. So, fundamentally, we are going against what we signed up for internationally when we introduce this.

Why? Because of the fact that the Minister and the Government are hearing from people to say that this is what’s been happening; there are victims. Victims are important, but this bill does not address victims. The one section of this bill that does address victims is actually a rewording of an existing section of the Sentencing Act that already exists. There’s nothing in this bill for victims other than the slogan of “tough on crime”, which we know does not work. If we look at any other country that has a tough on crime approach but doesn’t address the social concerns and the social issues that people are experiencing, we know that it does not work.

But let’s talk about victims. I already mentioned that under the new aggravating factor that includes section 66 of the Crimes Act, we are not going to be seeing women, in particular, in abusive relationships being supported by this legislation. We are not seeing how this legislation is going to break the cycle of violence, break the cycle of poverty that we’re seeing in our communities.

The one thing the Minister mentioned was in terms of the fact that, yes, we have taken on the recommendation of the report on State abuse and also faith-based abuse, but then the Minister failed to mention that the one recommendation that will support those victims of the report by allowing a mitigating factor for those victims of State and faith-based abuse has not been taken up by the Government. Why? Apparently it is too hard to manage, yet we have seen new aggravating factors being introduced as a part of this bill.

So what does this bill serve? What we are seeing here is something that will harm our young people, that is anti - Te Tiriti. We reaffirm that this Government’s only housing policy for Māori is by increasing prison beds. That is what we will see as a result of this bill. We will see more young people who will be harmed as a result. We will see that lawyers and judges will find different ways, like the previous speaker the Hon Dr Duncan Webb has mentioned, of being able to balance what they see in front of them.

Let’s be perfectly honest: those of us in this House are not judges, and very few of us are lawyers that have that experience in youth justice, in criminal justice, in Māori justice, in Pasifika justice, in migrant justice. Very few of us can say, hand on heart, that that is our background, that is our experience. So why, then, would we introduce a bill that does not listen to advice from officials, that does not listen to advice from the experts, from our communities? We have heard submissions from the New Zealand Law Society. We have heard submissions from Community Law saying that this is not going to address the levers of crime.

For those of you who have been familiar with some of the earlier work of Plato, in 375 BC when he authored The Republic, he talks about the rise of the demagogue. It talks about how when political leaders take a populist approach to law and legislation and running of city-State and of the country, they then fail to see the common good. That is in the 4th century BC, and we are seeing a repeat of that right now with this Government. We’re seeing people not taking an evidence-based approach to the criminal justice system but a populist approach.

What is justice? What is law? We have heard too many times in this House that if people commit a crime, commit an offence, there should be punishment and there should be repercussions. But who determines that law? We do. So we decide who criminals are in Aotearoa. We decide in this very House who commits crime in Aotearoa. That is not about justice. It reminds us of the obligation and responsibility that we have in this House, that we have to the people of Aotearoa.

If we really want to talk about crime and justice, where is the legislation I’m seeing around white-collar crime? Where is the legislation I’m seeing around tax evasion? If you really want to take a tough on crime approach, where are those who avoid paying tax in Aotearoa? We are not seeing that. Instead, what we are seeing is punishing the beneficiaries. We are punishing those people who are already finding it difficult to put food on the table. That is not justice. That is not just. That is not how we make law. That should not be how we make law in this very House.

To conclude, the Green Party of Aotearoa absolutely will not support this bill because we do not see this bill as being one that will break the cycle of harm and break the cycle of violence in Aotearoa. We see this as a bottom-of-the-cliff approach to crime and justice. What we want to see is everybody having a warm and safe home to live in. What we want to see is having a fair tax system so everyone is able to thrive. This bill does nothing for that.

Thank you, Madam Speaker. I’m very pleased to rise on behalf of ACT to speak on the third reading of the Sentencing (Reform) Amendment Bill. ACT is supporting this bill, and we’re very pleased to do so.

During the election campaign, ACT went up and down the country campaigning, like many members in this House, and we heard from New Zealanders about their concerns around law and order. We know that in the last five years, gangs have recruited a huge number of people into their midst—up by more than 3,000 people. We’ve seen an escalation in violent crime, ram raids, dairy owners being attacked—really unacceptable things in our society. It’s really good to see that the Government has taken a measured approach with a number of different law and order reforms—this being one of them—and I want to thank our partners in National and New Zealand First for picking up some of ACT’s ideas, along with us supporting some of theirs around more police numbers and, obviously, around gang patch bans.

So, you know, ACT has been very pleased to be able to get three strikes back in place. Obviously, we’ve got the serious youth offenders category coming. But in this bill, we’re actually also seeing a couple of things that ACT is very pleased to be able to campaign on and now deliver. And that really is around the aggravating factors for those in particular roles, whether that’s in public transport or sole-charge workers—you know, people living on their premises who are particularly vulnerable to violent crime.

And then what’s also been talked about is limiting the reduction around sentencing and the 40 percent discount. And, again, you know, it’s appropriate. This House actually does provide guidance to judges. That’s why we set sentences in the Crimes Act, and so this is not unorthodox; it’s just a Parliament taking an interest in our justice system and actually what people have told us, and what kinds of sentences the community expects to see for violent offenders.

So it is good to see these changes. We did campaign on them. It doesn’t address all of the issues in our criminal justice system; we’ve never pretended that this bill does. But it is a part of a suite of measures that this Government is taking. So I’m looking forward to having this law in place—actually seeing it flow through to consequences for offences; actually making our community safer, which is what ACT is here for; and making sure victims are actually put first and that there are consequences for serious crimes in our community. So ACT commends this bill to the House.

Thank you, Madam Speaker. I rise on behalf of New Zealand First to support the Sentencing (Reform) Amendment Bill. I was a member of the Justice Committee that heard from a number of submitters, and, I must say, we’ve heard one view from the other side of the House, but there was also a view that this bill is going in the right direction. It restores real consequences for crime. There are three key areas that the Minister of Justice has pointed out: making sure the punishment fits the crime, restoring the principles of personal responsibility, and recognising victims.

We have had for too long, the Opposition, the Labour Party, for instance, being soft on crime. They, under their watch, wanted to reduce the prison population and they actually achieved reducing the prison population by 30 percent, but by reducing the prison population, criminal activity and serious violent crime increased by 33 percent and that was the consequence of their doing. They want to develop a culture of excuses for people that commit crime, and that is wrong and it’s why under their watch criminals kept doing what they were doing—because they could get away with it.

This Government is setting in place consequences for what they are doing. And New Zealand First supports this bill. It’s the Government’s aim to reduce violent crime by 20,000 by 2029. We favour more accountability by the courts and tougher punishment for those who opt for hurting others. And through the speeches so far, isn’t it so often the case that we never hear from the Opposition about the victims, those who are being hurt? The people we should be caring about are the victims, and this is what this piece of legislation does—it puts the victims at the forefront. I commend this bill to the House.

Tākuta Ferris—this is a split call.

Ka pai. Hei aha ngā kōrero o tērā taha. [It’s OK. Never mind what the other side is saying.] E tū ana ahau ki te waha i ngā whakaaro a Te Pāti Māori [I stand to deliver the sentiments of the Māori Party] and I am going to do it in English. I want to start by addressing and dispelling the myth that because Māori are overrepresented as victims of crime, it is OK for the Government to ignore the fact that its own justice system has systematically, structurally, and attitudinally allowed the brutalisation of the Māori people for 171 years, since its inception.

Māori have been the victims of the justice system since it first appeared and began passing laws that systemically strip Māori of their legal rights in our own country, like the suppression of rebellion laws of the 1860s and 70s, like there being no requirement for trial before imprisonment of Māori for two years—laws from the same period. “Let’s not look back.”, they say. Add to that the disposition of land laws—far too extensive to list in a five-minute speech—that stripped Māori of their economic, social, and cultural bases, condemning Māori to the ever-intensifying intergenerational poverty and everything that comes with it.

The Government have another catchcry for justice: take personal responsibility, as we’ve just heard Mr Arbuckle spout. This is their retort to our presenting of historical and current evidence. “Take personal responsibility.”, they say, whilst ignoring the fact that they take no responsibility for the actions of successive Governments in this country that are the root cause of the current poverty and justice settings we are dealing with in this country today. And they do this while ignoring the now exhaustive evidence and datasets, most of which are published by their own agencies. It defies any sensible logic, and this bill is an extension of it.

What it does explain, though, is the Government’s approach to the formulation of justice policy and lawmaking in our country. And that is to study voting trends of the public and then use that as the basis for the formulation of justice policy and lawmaking in our country, while simultaneously ignoring all of the historic and current evidence and data, including their own agencies’ recommendations and advice. I don’t know why they bother to have agencies. There is little hope for te iwi Māori when it comes to justice in Aotearoa. Te Pāti Māori presents information and analysis to improve, to implore the Government to take into account all historic and current evidence when formulating justice policy and law. We are ignored, as is all of the evidence, I might add. Instead, they study voting trends to develop catchcries.

What they should do is study the drivers of poverty and then turn to formulation of justice policy and law. This would ultimately lead them to fulfilling their own overarching departmental slogan for the Department of Justice with the aspiration of lowering the overall representation of Māori in the justice system. Unfortunately, as they are organised now and led, they will never realise this and Māori will bear the brunt of it and will remain perpetually and intergenerationally trapped in the justice system.

Disproportionate exertion of force is experienced by Māori throughout the entire justice system, not just at the sentencing end but right throughout it: the beginning, first point of contact, through the process, sentencing, in prison—the lot. It’s not being disputed; it’s well understood. So this disproportionate exercise of force on Māori is felt at every instance, be it at the initial point of contact, like the experience of the young 15-year-old Heretaunga boy, in the early hours of Sunday, 16 March—yeah, only just a couple of weeks ago, not long ago, not even 10 days—who, in the process of being detained, had his jaw broken and then was denied any medical support for three hours. This is the nature of excessive force for Māori families—injustice: denied any support for three hours until the next shift came along and said, “Hika, you look bad; better get you to hospital.” He had to be flown to Wellington for an emergency surgery. His jaw was broken.

I want the reality of that to sink in for you a bit. This is what we are talking about when we talk about Māori being disproportionately everything in justice; albeit when you’re in prison, when you’re going through the court system, no support for Māori—

The member’s time has expired.

Tēnā koe, Madam Speaker. Ngā mihi. We do not commend the bill.

Well, this is the sad state of this House, that you’ve got a significant bill coming though and you’ve got the Government parties who have led this legislation stand up and give two-minute pathetic speeches. That side of the House is so out of touch with the reality of New Zealand; they get up and they give their stump speeches, give their key lines, and then they sit back down because they don’t have anything valuable to contribute to this discussion. That is a disservice to victims: that the summary of your thoughts and ideas on justice is to spit out some lines that some communications adviser wrote for you. Pathetic.

This sentencing reform bill is going to result in more people being funnelled into our prisons and it does not make our communities any safer. I don’t know what la-la land you might be living in on that side of the House, but if you’d actually set foot in a prison there’s no rehabilitation going on in there. I’ve been to 10 prisons in the last year; there’s no rehabilitation going on at all in there. What do you think people are doing in there? Making better connections; that’s why it’s called “the Ministry of Connections”, not “Corrections”, because that’s not happening in there.

Rehabilitation is virtually non-existent. You’re sending people in there for a longer time to make more friends to be better criminals. Well done, you’ve achieved something today.

Please don’t bring the Speaker into the debate.

OK. We know for a fact that only 7 to 15 percent of rehabilitation programmes in prisons are actually successful, and prisons don’t even have the time to consider what kind of a service they’re offering to people in those prisons because they are so busy trying to accommodate a growing prison population. I don’t know why the other members are looking at me in disgust; that is the consequence of your actions, the Government’s actions. Yes, they are.

Prison capacity is the summary of your justice approach and response. It’s not to address the drivers of crime, it’s not to address poverty or trauma, or mental health issues or drug addiction, which are the reasons why people end up in prison. Your response is to make our prisons larger. You want to make Christchurch prison larger, Auckland prison larger, and continue to build prisons. That is not going to solve anything. I spoke to a corrections officer and he said, “As the muster grows, the quality goes.” That’s what they’re preparing for, and at the moment they are dealing with double-bunk cells, they are at capacity, and this bill will make those prisons even fuller. There are too many people in our prisons.

This bill is particularly disgusting, though, because it attacks our young people, the people who are supposed to be our future. You’re saying that their age should not be taken into account by judges when they’re sentenced. There is a reason that those provisions are in place and it’s because people in their lives, when their brains are developing at a certain age, make decisions differently. They do not weigh up the consequences. They are more susceptible to being peer pressured into doing things that they don’t want to do. But it’s easy for that side of the House to sit there and hand wring and talk about personal responsibility because they’ve had more options in their lives than all of the young people that are in prison. How do I know? Because I talked to them. I went to the youth unit at Mount Eden Prison and asked them why they were in there, and it was because they had no options, because they are disabled, because they are poor, because they come from places not like the ones that this side of the House come from.

Have some compassion and some empathy for the people that you talk about and that you lock up, the human potential that this Government wastes—absolutely wastes it. This bill oversteps judicial discretion. There’s a reason why judges stop sentencing people—because they know that prisons don’t work—and then here comes this ideological Government who has no care in the world for evidence, who continues to do the same thing over and over again, and it does not work. Eight hundred million dollars over five years is going into Corrections. Meanwhile, our hospitals are degraded, our schools are collapsing, our public services are in absolute disarray. You spend $151,000 on locking one person up; $80,000 per person in the Corrections system. You spend $1,000 per person in the health budget; you spend $4,000 per person in the education budget. It’s pathetic, and I know it’s not where taxpayers want their money going.

You guys, this side of the House, needs to buck their ideas up when it comes to justice, because all it is failure after failure. It is ruining lives, it is wasting human potential, and it is not the answer.

Members, before I take the next call, during the committee stage of the Sentencing (Reform) Amendment Bill, the result of the vote on Dr Lawrence Xu-Nan’s tabled amendment to clause 1, replacing “Sentencing (Reform) Amendment Act” with “Sentencing (Discount Cap and other Matters) Amendment Act”, was incorrectly announced as Ayes 58 and Noes 68. The correct result is Ayes 55 and Noes 68. The record will be corrected accordingly.

Thank you, Madam Speaker. Recently, I had the opportunity to attend the ceremony where we recognised the great work of members of the Corrections team across my electorate for the work they do. Particularly, one of my areas is in reform and rehabilitation, and I just want to acknowledge that work as part of the contribution I’m making to this debate this afternoon. Because if they were listening to that contribution that’s just been made, they would think that their contribution to rehabilitation is not appreciated, and I want all of those corrections officers to know that it is, by this Government. I commend this bill to the House.

That was a very short speech. I thought we would have got a bit more from that member, but that’s fine.

This is an interesting debate we have because when we’re talking about being tough on crime, as we’ve heard, and the importance of this bill as a signature piece for the Government to demonstrate their commitment to being tough on crime, it comes in the context of where we’ve seen a 96 percent increase in the use of methamphetamine. So it’s important that if we’re curtailing the independence of the judiciary to impose sentences and saying that that’s tough on crime—but at the same time we have seen a deadly drug that absolutely devastates communities; that drives retail crime up, increases that; that increases violent crime; and it also adds to increased family violence. Business is booming for the gangs right now; they’re doing the best they’ve ever done before because they are selling record levels of methamphetamine in New Zealand.

I find it somewhat two-faced to profess that this Government and this bill are tough on crime when life has never been better for the gangs. The price point of methamphetamine is the lowest it has been in New Zealand’s history, and the purity of methamphetamine is the highest. We have a market that is absolutely flooded with cheap, high-quality methamphetamine, and those profiting from it—those doing well from it—are the gangs. So if this Government is so tough on crime, why is business booming for gangs right now in New Zealand? I’d love to hear from some of the members opposite to their answer to that question.

Because where in this bill lies the answer to curtailing the intricate web of organised criminal activity that peddles misery in our communities and causes increased poverty, increased violence, and increased retail crime within our communities? Because if this Government is, in fact, being tough on crime with this bill, you can ask any police officer, in any given city or area, who their top two or three retail crime offenders are, and you can ask them what is driving that retail crime. Those large-scale operations where you see a trolley full of meat being stolen from Woolworths or Pak’nSave? Those are meth users who are stealing to order, in order to feed their addiction.

Methamphetamine is a significant driver of retail crime in our community. So where is this Government’s answer to being tough on crime when we see gangs doing better than ever before in New Zealand? In fact, during a cost of living crisis—when every other food group has gone through the roof: rates, insurance, everywhere where we see communities, rents are all increasing—the one big price drop we’ve seen in New Zealand under this Government is the cost of a price point of methamphetamine. I think that demonstrates that bills like this one are window dressing. They tick the box of being able to say that they’re tough on crime, but the reality is demonstrated in the 96 percent increase in the use of methamphetamine—

Thanks to Labour. Six years.

—reported last week, done in one year. So in one year—to that member opposite who’s interjecting—from 2023 to 2024—

Six years.

—in one year—

$2.75 million to your friend, Harry. Great guy! Mongrel Mob!

—we have had a 96 percent increase in methamphetamine under their Government’s watch.

Just give him $2.75 million—Harry.

The other bill we’re seeing coming through this House today in terms of not being tough on crime—which undermines the whole purpose of the Sentencing (Reform) Amendment Bill—would be weakening our gun laws. On top of making methamphetamine cheaper than ever—

Thanks to Labour. Friends of gangs. Six years.

—and giving gangs more income than ever before, we’re weakening gun laws and paving—

Point of order, Madam Speaker. Madam Speaker, I’m just sitting here listening to a very excellent speech, but also reflecting on Speakers’ rulings. In 64/3, it clearly states that a “running commentary of interjections is out of order;”. The members on the Government side of the House have plenty of opportunity to take calls. And we—

I understand the point of order. Thank you. Look, I tend to allow quite a free give and take within the House. There have been several interjections from both sides during this debate. It wasn’t rowdy, it wasn’t disruptive, but it was sustained. But I’ll ask the member to continue.

Thank you very much, Madam Speaker. The point I was making was that if this bill is tough on crime, why has methamphetamine use gone up by 96 percent, meaning that business is booming for the gangs?

Secondly, if this bill and this Government propose to be tough on crime, why are they weakening gun laws by passing, under urgency later on today, a bill that will lay the foundations for taking the Firearms Safety Authority away from police, away from their best advice, away from protecting front-line safety; and actually enabling a far less regulated system for firearms ranges and guns and gun safety in New Zealand?

I guess it’s the importance of highlighting that this bill in itself—with its tick-box measure of attempting to show that it’s tough on crime—if we lift the lid, if we lift the hood on this car, then underneath it we see the real picture and we see criminals having, more readily, access to firearms; the easier diversion of firearms into the criminal underworld; and the free-flowing ability of selling and profiting from illicit drugs. Those things are the cycle of crime. If we are serious as a country to get on top of crime, we have to break that cycle. We want to look at where this continues to cause harm in our communities. We want to stop that from causing destruction and hurt in the next generation of New Zealanders.

But this Government has no interest in that. They want to simply demonstrate, over a short term, that they are tough, without actually looking at any clear evidence or actually taking some interest into looking at what works in New Zealand. This bill is a sad bill that will make them attempt to look like they’re doing tough things. But, in fact, it has no impact upon the real damage and harm that continues to be caused in communities. We’re still seeing record levels of retail crime. We’re still seeing those small-business owners being hurt in their businesses, and under the influence of drugs and other influences that come through their businesses, and who are being threatened with weapons in their place of work. Those areas are still a concern, and it is those areas that we need to look at in how we break the cycle of crime.

In terms of what this bill does and why we oppose it, the 40 percent cap on sentence discounts severely restricts judges’ ability to consider the full range of mitigating factors in complex cases. Judges, with their expertise and experience, we think, are the best positioned to weigh all relevant factors and determine appropriate sentences. But this Government thinks they know better—they think they know better and they will impose a regime to impede the discretion of the judiciary. This one-size-fits-all approach may lead to unjust outcomes in cases with unique circumstances. And we heard that very clearly at the Justice Committee.

Restricting discounts for younger offenders may place their rehabilitation in jeopardy. And that’s an interesting point: that if we were serious about breaking the cycle of crime, it is those early on, nipping that behaviour in the bud and making sure there are consequences for those actions and making sure that there is a programme in place that actually makes rehabilitation an attainable goal for young people. But it is under this bill that those young people will be disproportionately impacted, and particularly those from disadvantaged communities.

Interestingly, to that point, is the fact that it is those communities that are also disproportionately impacted by the vast increase of methamphetamine now available in New Zealand communities. That report, released last Friday—late on a Friday; interesting how the Government puts things out late on a Friday when they don’t want to talk about things. But it is interesting from that report that it is parts of the North Island, rural New Zealand that are most significantly impacted. It is those communities that are already suffering under the cost of living crisis that are further impacted upon by the increased availability of methamphetamine use in New Zealand.

The cumulative sentences for offences committed on bail and custody under this legislation and under its changes lead to much longer prison sentences. That’s where they get to tick their box, but it does not solve the problem; it does not break the cycle of crime. There is absolutely no interest in being able to demonstrate what the long-term goal or plan is. I think that is the reason why this Government has no plan on reducing methamphetamine.

To give credit to former National Governments, at least John Key could see that this was damaging our communities. At least he pulled together a group of experts to say, “Let’s get on top of this problem. We can see it’s hurting our people. We can see it’s destroying lives.” But this Government is not interested in a long-term plan. They don’t care about that. They just want to show that they’re tough and they’re going to give criminals tougher sentences. And they think that’s going to fix the problem, but, sadly, it’s not.

This bill will strengthen the consequences of offending and ensure offenders take personal responsibility for the harm they cause. And what did Ginny Andersen in the Labour Party just say? “This is a sad bill.” Do you know what’s sad? For the victims in New Zealand who see the people who commit those crimes being tagged and released under that Labour administration and not serving the time for the crimes they’ve committed. And what are we doing? We’re bringing back real consequences. You commit the crime, and you will be held accountable for your actions. Not you, Madam Speaker, but the victims—[Interruption] Ha, ha! Those in community, the offenders who do the crimes, they will be held accountable for their actions. This side of the House care for victims; that side of the House, they do not care for victims. They simply do not care. We are restoring law and order back here in New Zealand; it’s a great day.

Thank you, Madam Speaker. I would like to take up this debating point, which seems to be that the people in the Opposition don’t care about victims. That is actually something that I would reflect on if I was a member of the Government. Is that a good starting point in any discussion, given that we are all here because we represent our communities and we have seen the harm that crime does in our communities? And so rather than be on a high horse, which actually obscures the view, let’s talk about the reality of people’s lives and the reality of the impact on victims of this particular piece of legislation, because it doesn’t do what it says on the tin.

This might make people feel good for two and a half seconds, but, actually, more people will die as a result of this piece of legislation. More people will be harmed as a result of this legislation, and it won’t fix the problem—and that’s what we’re here to do; we’re here to fix the problem, and it’s a serious problem in our society.

So let’s have a look at this piece of legislation through the eyes of a victim. Let’s talk about what would happen. What I think we also have to acknowledge is that these pieces of legislation don’t work just on their own. They’re part of a net and the net has actually got giant holes in it, in this case, because we have legislation in this House which simply misreads the problem and the solution.

We’ve heard people around this House today talk about things like the inadequacy of our imprisonment system, where we’re just simply not rehabilitating people, where we’re putting people into cells in double-bunking situations. And now we will be adding more youth to those cells and they will make connections in gangs. I can see a colleague across the House shaking his head and I wonder what reason he has for shaking his head, because that is the reality—we are putting more people into a place where they will be double-bunked.

I’m never a fan of double-bunking, where they will be in cells and in communication with people who are much more violent criminals. That will happen and they will learn and grow in those skills, and that’s the opposite from what we want for victims in this country, because those people will come out of prison and they’re much more likely to offend in violent ways, and that will hurt real New Zealanders.

Now, I wanted to talk about another piece of the net here that I think is going in place at the same time, and it’s got the same problem—it’s based on popularism—and that is the issue of citizens arrests. In a place like Sandringham, we’ve had deaths of people when coming out and actually trying to stop somebody who has shoplifted. We’ve had deaths of people, deaths of workers, as a result of that. In fact, what this Government keeps on doing is it keeps on talking about self-responsibility, and it just looks like abandonment. It abandons people through every system. People will be left to try and deal with that situation of an erratic person taking stuff from their shop. They’ll be left on their own to deal with it. And we’ve put it back on the worker and the little shop owner. That’s a shameful thing to do.

But then we promise them that in this bill, we’re going to imprison the person who offends by stabbing that shopkeeper. That’s what we’re promising them. And what are we actually doing? We’re taking a whole lot of people and imprisoning them and schooling them in crime in a way that is just not going to work. It is not going to help them in the slightest, because their loved ones are already going to be harmed from it. And now these people will be released into a situation which is even more harmful.

Now, I am not saying that we have got the system perfect or that we shouldn’t have good methods of dealing with people who are in what are crime waves. I’m not saying that. I think there is a lack of proportion here, and that does not mean that I’m belittling the crimes that are going on. But I’ve raised this before in another speech—I’ve talked about the issue of white-collar crime. I’ve talked about all those people who are causing harm, whom this doesn’t affect at all, and they actually affect our society. There is absolutely no proportionality here.

Finally, what worries me is that we have conceded there is problem here, because we’ve talked about problems where there is a manifest injustice and rectifying that. That means that we know that there’s going to be a lot of injustice in this law.

Finally, we are at the third reading of the Sentencing (Reform) Amendment Bill, and this is absolutely a reformative bill when it comes to victims, because on this side of the House, we actually put victims first—not the Mongrel Mobs of society that received $2.75 million under the last Government; no, we put victims first.

And what’s really sad, actually, is to hear members opposite say that “This is a sad day.” Yes, actually, it’s a sad day for criminals because now they know that there’s actually going to be tougher consequences for their crime. It’s actually a very good day for victims, for victims in South Auckland that even this morning and yesterday were contacting me about when are tougher consequences for crime going to materialise for them? This is a good day for them.

What disgusts me is hearing across the House, “More young people will be harmed.” On 25 July 2024, the New Zealand Herald published an article where the title was: “Timaru teen sex offender Blake Miller avoids jail after 75 percent sentence discount after offences against child”. The child was 11 years old.

This bill that we’re passing today—thank you, God—would have made him go to jail, but he’s on home detention, which is disgusting. Shame on you across the House for saying that this is going to harm young people. I commend this bill to the House.

Thank you, Madam Speaker. It’s an interesting bill, isn’t it, because at the at the heart of almost all of the contributions that we’ve heard, not just today but through this process, has been a couple of key themes, and it’s as if sometimes we talk at cross-purposes. If this was a high school debate where there was some sort of moot and then an opposition, it might seem OK. But this is actually Parliament where people make laws and it’s incumbent upon the Government to try and do a better job and to step up and, and not kind of stoop to that level.

The Government members, the people opposite us in this House, have said several times today that this is about putting victims first, and that’s just vacuous. That’s just an utterly rubbish, vacuous comment that doesn’t make any actual sense. It’s as if you say it out loud and that makes it true. Rima Nakhle can sit there and shake her head but just because she stands up and says this is about making victims’ lives better doesn’t actually make it true. There is nothing in this bill that does that. So it’s lazy, vacuous thinking to think that you have the audacity to come here, wave a piece of paper around in the form of this bill, and say, “Job done, tick that one off, we’ve made things better for victims.”, because that does not work and it has not happened within the confines of this bill.

The Government is proposing this sentencing amendment bill as part of what they keep insisting on as a broad law and order reform package, and we have yet to see anything that’s broad about it. We are yet to see anything that actually tackles law and order. It is virtue signalling, it is lazy, and it is simply saying things. It is push-poll politics. It is push-poll defining of policy and it is lazy and you should know better. It’s no surprise that Labour strongly opposes this bill, and we do so for several reasons—mainly because it doesn’t do what the Government says it’s going to do, so we can chuck that one out, and it actually has some unintended consequences that are dangerous.

So we think that the fundamental objective of this bill is to undermine judicial discretion, which obviously is a bad thing. Arguing that judges don’t know what they’re doing, arguing that individual considerations shouldn’t be taken into account is a slippery slope to creating a system that just creates a revolving door that creates more crime, that creates more victims, and then creates more victims.

The victim was 11 years old.

You can stand up and take a call if you feel so passionate about it, Mr Rutherford. So, several key points to consider here, and one is, as I said, judicial discretion—severely limited. The bill caps total sentence discounts for mitigating factors at 40 percent, regardless of how many personal and situational factors may apply. It also formalises what it describes as a sliding scale of 25 percent for early guilty pleas, and on the surface you may think that there is some merit in that and you can see how that would be. The earlier someone fesses up and does a guilty plea during the process, the more their remorse is likely to be perceived as genuine, the less court expense, the less impact on the judicial system is in place, which, again, could show that their remorse is genuine.

But we didn’t find through the committee of the whole House or at any stage during this process, or the regulatory impact statement or anything else, that there was any robust analysis behind that or anything else that is in this bill. If it was worthwhile doing, we would all be able to sit here and get behind it. If it was actually robust and evidence-driven, we would all be able to go and support this bill because, fundamentally, everybody’s got the same intentions in place, and that is to make New Zealand a better place to live and to make fewer victims.

If this worked, we would support it. You’ve had ample opportunity to prove that it works; you’ve had ample opportunity to show some reasons as to why you shouldn’t have unanimous support around the House—not you, Madam Speaker, obviously; Madam Speaker would have tried—but you haven’t done that. And we’ve been open to that argument. On this side of the House, we would have absolutely been open to a sensible argument if a sensible argument existed. Giving an example, a person who confesses and cooperates extensively with police, shows genuine remorse, and has no prior convictions, may still be unable to receive a sentence reduction that would otherwise fairly reflect their circumstances. This one-size-fits-all is not going to do anything to improve the justice system.

There is one opportunity, often, in a young person’s life to come before the courts to face the circumstances of their offending and to actually turn a corner and to be provided with some societal help to do things differently and to live better and to create a whole new path for themselves. If we chuck away all of those tools that we have at our service, via the judicial process, then we are wasting the opportunity to do just that.

In terms of harms, the rehabilitation of youth and marginalised groups, the bill also prevents the discount for youth and for remorse. If we think about the youth discount in particular, we’ve heard several people talk, through this process and particularly at the committee of the whole House stage, about the fact that you don’t stop being young just because you did a bad thing and now you’ve done a second bad thing a short time afterwards, You’re still young. The fact that young people maturate, that they’re finding their way in the world, that their brain development isn’t going to happen until, you know, their early 20s and sometimes longer, that there can be a whole host of societal, cultural, and lifestyle factors, including poverty and including stigma and all of those other things. It doesn’t stop you being young and it doesn’t stop—and it shouldn’t stop—the discretion of a fully formed judge, of a fully formed judicial process, to be able to take things into account.

You may say, “Well, that’s tough luck.”, and want to take a much more punitive approach, but that young person is going to come back round. That young person is going to react in an equally proportionate way to how they’ve been treated, and that will actually impact how they decide to live the rest of their life. We have limited opportunities to make profound impacts on people, and I think we should leave it in the hands of judges who do this day in, day out and who know much more about it than the people sitting opposite me right now.

We’ve also heard contributions today about the increased prison population and the costs of that and that, as a society, we have a choice about—depending on how you look at it—where we spend our money. The fact is that putting people in prison is incredibly expensive; incredibly expensive. At the moment, we are almost at capacity. The Government is going flat out trying to negotiate with unions to be able to open up more prison beds. It’s flat out trying to invest huge swaths of taxpayer money in building new prisons—mega prisons, in one case, in Waikeria—and that just seems like a very convenient way of locking people up.

They try and balance that with this promise, this golden egg, of being able to provide more rehabilitation, but there’s no more rehabilitation happening. The rehabilitation for remand prisoners is yet to start and yet we’ve heard on the other side of the House several references to that over the last few weeks as being something good that the Government has done. It hasn’t even started. We don’t know how it’s going to work, and it’s, again, ambulance at the bottom of the cliff.

Unnecessary age aggravating factors: as I said, Labour says that many more of these scenarios are already covered in existing law, and we just don’t value the contribution that this bill makes. We’ve called this a political stunt and we believe that that’s exactly what it is. It’s dressed up as reform. It’s not reform as, again, through the committee of the whole House stage, we heard several much more viable suggestions for an appropriate title that would have been a bit more true to form.

We’ve heard about the fact that methamphetamine use is up; it has absolutely skyrocketed—another example of this Government taking the opportunity to say things but not actually doing them. That has a consequence and that consequence is playing out on the streets of this country as we speak. Business is booming for the gangs. Their tough on crime rhetoric hasn’t worked for anything they’ve done to date, and it certainly is not demonstrated in this bill either. So we do not commend this bill to the House.

Thank you, Madam Speaker. Very many statements have been made in this debate, but they’re simply out of scope of this debate. The Sentencing (Reform) Amendment Bill is very specific in its purpose to amend the Sentencing Act of 2002. We in this National Party and this Government strongly support the strengthening of accountability for crimes. It is about consequences, it is about personal responsibility, and being held to account for the damage that crime inflicts on victims. I commend this bill to the House.

I declare the House in committee for consideration of the Customer and Product Data Bill.

Members, the committee is considering the Customer and Product Data Bill. We come first to Part 1. This is the debate on clauses 3 to 13—“Preliminary provisions”—and Schedule 1. The question is that Part 1 stand part.

Thank you, Mr Chair. Notwithstanding that we are going to do this part by part during the committee of the whole House stage, I might make some introductory and overview comments. I’m very pleased to be here today for the committee stage of this Customer and Product Data Bill. Sometimes it has been referred to as an open-banking bill. It is an important bill not only for me as the new Minister of Commerce and Consumer Affairs but also for the Government and for consumers and technology companies that are going to be the ones who benefit most from this legislation once it is passed through this House.

Technology has changed dramatically in recent years, and it will continue to change. So this bill seeks to create a framework that will ensure that current arrangements are up to date and that future arrangements can be accommodated.

At this early stage, I want to, again—as my predecessor had already done but I want to, as the new Minister—thank the Economic Development, Science and Innovation Committee and everyone who made submissions on the bill for their work in getting it to this stage.

Just by way of background, the bill introduces a very long overdue consumer data right regime to New Zealand, to make customer and product data accessible for the benefit of New Zealanders. At present, businesses that hold customer and product data are not incentivised at all to invest in better data sharing or the infrastructure that goes with it, and/or any agreements to the sharing of that data. They hold that data incredibly tightly, and that’s been the historical position.

So this means that, actually, it’s very difficult for technology companies to negotiate contracts with those businesses that hold data, and that, in and of itself, limits innovation in our economy. There is also an area where inefficiencies and security issues with some current methods for sharing customer and product data mean that this is made difficult, and it’s unappealing and it’s risky for companies. Third parties under this legislation—the so-called fintechs—will need to be accredited to register customer data on behalf of a customer, and that will ensure that they have appropriate systems in place and that they’re able to handle data appropriately. The bill includes a range of penalties to deter, penalise, and discourage non-compliance, and it’ll be the Ministry of Business, Innovation and Employment that are the regulatory agency responsible for enforcing breaches, alongside, naturally, the Privacy Commissioner, who will continue to be responsible for breaches of the Privacy Act.

The select committee unanimously reported this bill back to the House, and recommended some amendments to the bill which I support as Minister. Some of the key amendments cover the areas relating to the adequacy of privacy protections, protections from liability, approving persons to develop standards, and accreditation criteria. Other amendments are smaller but important, and improve the bill also. I think the select committee’s made some excellent improvements and some suggestions to the bill, particularly with the removal of requirements around the use, modification, and disclosure of customer data where it has carefully balanced the views of prospective data holders such as banks, prospective accredited requestors such as financial technology companies, and customers.

At the appropriate time, I’d like to speak to the Amendment Paper that I’ve introduced, and I don’t think that’s probably appropriate at this stage, other than to say that the bill, if it’s to work as it’s intended, will, by way of that Amendment Paper, make minor and technical changes to the bill—for example, correcting the definition of a joint customer to refer to two or more customers rather than one. My changes are consistent with the existing policy reflected in the bill.

So, on that note, I’m pleased to put the bill over to the committee of the whole House for wider discussion and participation.

Labour members are very excited to excited to be up to a stage to be able to give this bill a thorough going over in the committee of the whole House stage. It is important that we get that opportunity because this bill has had a long history—a long history of many fathers. Congratulations to the Hon Scott Simpson for not only taking up his role as the Minister of Commerce and Consumer Affairs but also being the next steward of this bill, which, as he says, is incredibly important to enabling not only open banking but also the good use of consumer data within our entire digital economy. This is a cornerstone of New Zealand’s digital economy, and we have an opportunity here to be world leaders, to have the best settings for the use of consumer data, for fintechs, for innovators in this space, and it’s an exciting opportunity for anyone to be able to lead.

But it has that long list of fathers, and I would be remiss not to mention them. This bill was first under development under the Hon Dr David Clark and then the Hon Dr Duncan Webb. I also have the honour of being its only mother as having introduced it as a member’s bill in the 54th Parliament, and there have been some changes since then.

Some of our questions will be designed to draw out the differences between those bills, because a lot of this work has been done and it is cross partisan. It enjoys cross-partisan support now, but there are some differences in this bill compared to the work that was undertaken by the Hon Dr David Clark and some of those things are around penalties and around how we deal with the system when things go wrong. That was quite hard to test out in the Economic Development, Science and Innovation Committee. You don’t get people who show up at the committee and tell you about how the penalties will work, because the regime is not in action and these penalty systems vary greatly around the world and so no one really has had any benefit of seeing how these things play out under our settings. The only place where there has been significant litigation around these rights is in the EU, but they have a very different penalty system than ours, and I will traverse some of that when we get to the right moment.

I also want to thank the officials who have tirelessly worked on this for many years. This is something that sectors, like banking, have pointed to as a real roadblock for their development in their introduction of open banking, so we’re very glad to have it to this place. None of us would be right in saying that it was easy. There have been many iterations of work that has been done on this. Thank you to everyone who has put in the work to make this a workable regime and a world-leading regime.

On Part 1, Labour members have a number of questions, but the first question I want to put to the Minister is around clause 3. Clause 3(1)(a) has a change in the scope of this bill. At various points of working through it and, indeed, through the select committee changes to this bill, there has been a huge amount of focus and attention on whether this should be about customers and, therefore, transactions, or whether it should be about people and the way that people can expect their digital data to be stored and used securely. In a digital economy, this is really important to get right because all of us will have varying degrees of interactions online that are not transactions but are with businesses. And New Zealanders can expect that the Government will play a role in this, whether it is just in the transactions and in the monitoring of the way that those transactions are conducted, or whether it will be in those broader digital interactions that are had for products that they might not perceive as products. The definition here has changed from “individuals” and “organisations”. That’s gone. It’s been replaced with “customers”.

The reframing of this bill as a customer product right from what Labour was developing as a consumer data right is a pretty large change in terms of what the scope of it is and what people can expect the Government to be creating here as a sort of framework going forward. But what does that mean? It means that, in applying it only to customers, it excludes this broader principle of personal data rights. That, I think, is probably a good change, but I want to test out with the Minister—when global best practice for this has been developed in jurisdictions like the EU, where the consumer data rights went hand in hand with development of the law on personal data rights and when the courts, at various levels of the EU system, considered what the personal rights legislative framework should be alongside it, in not stepping into that space and not guaranteeing that individuals have some form of legal recognition in this, are we creating a system where there’s just litigation to go—that we’re making the courts, actually, determine those rights? [Bell rung] Mr Chair?

Arena Williams.

That’s an expensive process. It’s a long process. So I want to be sure with the Minister that when we’re taking out the explicit purpose there of establishing a framework for individuals, we’re not going to see ourselves back here needing to flesh out those rights.

There’s another point under this, at clause (2)(b), where the bill, actually, still has the original framing around “improving access to data about products in those sectors”, and that “about products” has this implicit other side that it’s products for people. Because, if you are using the consumer data, either in an aggregate way—where you might be analysing people’s data to, say, make risk assessments and to then provide better data to other consumers about the range of products that are on offer for them, which is still, you know, explicitly set out in the purpose here—then you are sort of implicitly creating these rights for other people who are not necessarily customers now. They might be prospective customers. They might be people who are engaged in the system in another way.

And I’ll remind the Minister, just before I sit down—I don’t want to extend this call—we’re very excited about the application of this beyond just banking. This was never intended to just be about open banking—and this will be very, very impactful, right now, with the issues of competition in the banking sector—but we cannot forget that this applies to telecommunications, this applies to healthcare, and this applies to energy. There is real opportunity for New Zealand to step out into those sectors, which, frankly, around the world, have not enjoyed the ability to take up consumer data rights, because they have not had the empowering provisions that we do now. So let’s not forget about them. Those are sectors where the customer relationships, the transactional relationships, that banking has are certainly not the same, and they are broader.

Honourable Minister—but, just beforehand, I advise members this is now committee of the whole House. I might be banging my head against the brick wall, but we try to encourage question and answer sessions. I allowed the member to go over into a second session, but it would be easier if we can establish that relationship here, and I will endeavour, while I’m in the Chair, to ensure that members get ample opportunity to keep that discussion going. So, rather than a series of speeches, we can have some discussion, but let’s try it, shall we?

Thank you, Mr Chair, I appreciate your direction. Look, I want to engage positively and spontaneously with members as they ask questions, so I’m looking forward to that conversation.

The member Arena Williams makes a good point about the long gestation period of this piece of legislation. It’s often said that success has a thousand fathers—and sometimes mothers—failure but one, so I’m delighted to hear that the Opposition is still supportive of it, because I think it’s clear that this is going to be a good piece of legislation.

The bill provides a framework. One of the aspects about New Zealand being relatively late to the game in terms of this type of legislation is that we can learn from aspects in other jurisdictions that haven’t worked quite as well, and we can, hopefully, not replicate or repeat those errors, because we do want it to work appropriately here. So this piece of legislation provides a framework. The actual specific detail for individual sectors—the first will be banking, then we’re going to go to electricity, and then there are a range of other sectors that we can consider along the way, but those specifics will come in secondary legislation provided by regulations. Now, those will vary depending on the sector. That flexibility is important. The scope that the member referred to has changed, but I think for good reason, and for those reasons alone, in that it’s designed to be sufficiently robust in terms of its overarching framework to then enable the regulations for each sector to be appropriate and targeted and responsive to that particular sector.

I want to just make a point about clause 3(2)(b) about products, because a central aspect to the bill is about allowing customers, whether they are individuals or businesses, to benefit from the sharing of data. So the wording has been changed, but the purpose of the bill is to establish a framework to realise the value of that data for the benefit of customers, whether they be individuals and/or businesses. So I hope that that goes some way to reassure the member on that question.

Thank you, Mr Chair. Thank you to the Minister of Commerce and Consumer Affairs for that helpful answer. It leads me to my next question, which is: what is the impact on non-customers of the change to clause 3(1)(a), and then no subsequent change to clause 3(2)(a)?

Thank you, Mr Chair. Following on from the great introduction by my colleague Arena Williams—and I hear the Minister of Commerce and Consumer Affairs’ point about establishing a regulatory framework in order to allow businesses that this might be opened up to into the future, which is what, as my colleague’s explained, we’re excited about, beyond the banking sector.

I wonder, then, if that’s the case, with respect to in clause 3(2)(c), where it says there, “requiring certain safeguards, controls, standards, and functionality in connection with those data services.” if it is (1) the intention of the Minister to continually come back and update that regulatory framework through omnibus bills, through further legislation, or whether it’s just simple regulatory change that can be done at another level; or (2) as my colleague’s already mentioned, when we look towards what the penalties will be eventually, whether or not that will continue to need to be updated, reiterated, and of course debated in the House, given the scope of what the Minister’s answer was with respect to opening up to other parts, other sectors, other businesses.

One of the big things that Kiwis know, and, I dare say, people right across the world, is that their data is key—data is everything—and, in particular, their own data. When we look towards how we can secure that data but, more importantly, how we can secure the public’s confidence in the security and the use of that data, I want to make sure that they have that confidence that we have a regulatory framework that is agile enough. So my question directly to the Minister is with respect to subclause (2)(c) in clause 3 there.

Other parts that are always interesting—and when you look through the interpretation clause in this particular bill, as you do at every bill, interpretations are exactly that. You read through them, and some of them are quite straightforward, but my question to the Minister is why we’ve removed “derived data” from there. While it might be quite a technical or straightforward thing, I think, to build the confidence that New Zealanders expect when we use data like this or when people access, use, and share data like this, it would be useful if “derived data” and the explanation of why that’s taken out is explained to the committee. Because, as I flip forward and see where it’s been taken out, and that is clause 33(3), it says, “In this Act, derived data means” this. And I just wonder why it’s been taken out. I think it’s fair, as I say, to talk about the confidence that New Zealanders expect in this exciting and new and timely bill to make sure that we get these things right so that confidence is, of course, in our communities with respect to this now.

Thank you, Mr Chair. I want to continue to focus on the purpose clause in Part 1. I was on the Economic Development, Science and Innovation Committee that considered this, and it’s a very interesting area, but I do worry that the public won’t necessarily have caught up quite yet with the purpose of the bill.

If we have a look at clause 3(1)(b), which talks about the way that the purpose is to promote competition and innovation for the long-term benefit of the customer, I just wondered if you could explain for the benefit of the public what that long-term benefit that they’re missing out on at the moment is and why it would be that something like this would free up innovation and competition. How has it been used uncompetitively to stop competition in the market? I appreciate that we have talked a lot about that in terms of something like banking, and perhaps the public are more familiar—and that’s a good place to start: I’d love to talk about an example like that where people have come across those impediments in an area.

But I also would love to be more specific about some of those areas that you see as the next targets. My friend Arena Williams has talked about the issue over telecoms in healthcare. In an area like that, what would the Minister of Commerce and Consumer Affairs see as being the low-hanging fruit that would come next, and in what areas—in something like healthcare, for example? I don’t think that’s something that the New Zealand public would necessarily look at and see as one that would be impacted by this, so I’d be really grateful for an explanation of where you see the potential growth being.

I’d also just like to pick up on my friend’s question about clause 3(2)(c) and the issues there around the safeguards in place here. That was touched upon a little bit, but what sort of safeguards are there in this legislation, and why is it necessary to have them? What’s the balancing act that’s been brought to bear in this legislation? Thank you, Minister.

Thank you, Mr Chair; some good contributions there from the last three contributors. I’ll work backwards, if I might.

The broader picture that Helen White has just sort of painted for us is really at the nub of what this legislation is all about. It’s the potential opportunities for unexplored, as yet sometimes unimagined, benefits to New Zealand consumers. Because we haven’t had a regime where data is open and available, there are many opportunities that can be explored that most New Zealanders will not even yet have contemplated. And I think that’s the really exciting part about this legislation—the vista that lies before us all.

Just think about, for instance, some of the ability to use personal banking data in a way that means that live real-time on your phone, on your device, information about your personal budgeting information that currently isn’t available other than made by maybe Propellerhead people presenting and creating their own spreadsheet and what have you—some people do that, I know, but most of us don’t. So the ability to actually have access to that I think is phenomenal. But it’s not just in banking; it’s in a whole range of other areas, as the member has indicated, and is limited literally by our own imagination and limited also by the wit, skill, and ability of the enterprises that want to take advantage of it for our benefit.

Now, there are issues, of course, around security. There are issues, of course, around reliability. And there will always be a range of considerations that any consumer has to take into account in terms of what they see as, essentially, features and benefits of what’s on offer to them. So, look, we could go on for a very long period of time, and I’m sure the Chair will lose patience, because he is a man of vast imagination. But I do want to just say that at present—

If little patience, is what you’re saying.

If little patience. But, at present, businesses that hold customer and product data, they’re just simply not incentivised to release that data. Some of us of a certain age think of banks, for instance, that hold information incredibly tightly. Now, that information, that data, is actually my data as a customer of that bank. It’s actually not the bank’s data; it’s my data. And how I choose to use that data in association with another entity is actually something that I think opens up a huge opportunity for us all. So I’m excited by that.

That’s the type of thing that we’re missing out on at the moment. I had an opportunity a week or so ago to go and address a group of fintech operators. They literally speak a different language to most of us, because they operate a version in their technology world that someone of my age and generation finds, frankly, quite hard to comprehend, but a teenager just gets it in a nanosecond.

Stop them lobbying me!

Ha, ha! So there you go on that one.

The Hon Peeni Henare asked whether the legislation will need to be updated as technology and change occurs or whether it will be by the regulation. One of the things that I think we’ve learnt from international experience is actually that it’s the broad framework of the legislation that we want to be stable and secure. It needs to be robust enough to ensure that security and certainty can be provided to consumers and customers, and that data actually does have some protection. But, by the same token, it needs to be flexible, nimble enough, and nuanced enough to enable the regulations to be adjusted should they need to be with the changing of technology. And heaven knows that technology is changing at a pace that means almost certainly that over a period of time those regulations will need to be tweaked. But I think that having that mechanism of framework in the legislation, sector-specific regulation that can—as necessary and required—be adjusted, is very good.

In terms of Arena Williams’ comment, I think I covered that, I thought, pretty well in my first response to her question.

Thank you, Mr Chair. Yeah, I’m following on the conversations on clause 3, on the purpose, but I wanted to connect them to the terms listed in clause 5, “Interpretation”. First of all, can I just say that I really support, and our party supports, the change in subclause (1)(a) of clause 3 to focus on customers rather than individuals. But I think, to me, there’s a couple of words in, particularly, clause 3 that I do want to dig into deeper. First of all, because we do have in clause 5 a list of terms that are kind of considered for interpretation, and in clause 3(1)(a) we have the language “certain data”, I wonder whether the Minister of Commerce and Consumer Affairs thought that that needed to be more granular or sort of not so open-ended, seeing as we do have other language in clause 5 that is up for interpretation.

The second question is on clause 3(1)(b), and I know that other members have touched a bit on the language of competition. I also wondered, in terms of outcomes, and I wanted to raise a question and a bit of a challenge around why it is that particularly that part of the bill doesn’t so much speak about outcomes for consumers, because the language is still about promoting things like competition and innovation, but the bill actually does not guarantee nor promote specific outcomes for customers. That, to me, I guess, makes the assumption that increased competition and innovation will organically lead to better outcomes, but I think, to me, without identifying some of the outcomes that are being promoted in this bill, I can’t see how a customer actually would be reassured that, for example—you know, banking’s been used as an example, and I totally acknowledge the Minister’s words and others that this bill will touch on a range of sectors.

What are the specific outcomes the Minister is seeking as a result of greater competition and innovation, and, if he thinks that there are some specific outcomes that should be part of the purpose of this bill, were these explored in terms of incorporating them in clause 3 and, subsequently, I guess, then being further defined in the interpretations in clause 5. I notice in clause 5, for example, we actually don’t define competition or innovation. I know that perhaps that may feel like those are common-sense words, but, equally, somebody could argue that a lot of the terms in clause 5, like data, may not need to be defined because those are also common terms that we use in an everyday life. I guess, for the clarity of the public and moving forward with this bill, I wonder whether he thought that, actually, the interpretation of innovation—particularly innovation—should actually be better defined, particularly around the outcomes that that may have for consumers.

To recap, I’m particularly focused on clause 3(1)(a) on definition of “certain data” and then clause 3(1)(b) around whether outcomes should have been incorporated. Thank you.

Thank you, Mr Chair. The reason I asked the Minister of Commerce and Consumer Affairs about whether non-customers are covered in the purpose clause of the bill is because, when we get to clause 4(4)—where it’s a really nice plain-language setting out of how the bill fits together—it points straight to the secondary legislation, which will be designed on the back of this bill. If non-customers are not part of the bill and they’re not part of the empowering provisions, then the secondary legislation cannot deal with non-customer data. If you are not a customer of the energy company and the energy company is seeking to offer a range of products to you or about people like you, it cannot be regulated by the secondary legislation that comes out of this bill. That is not the intention that Labour had when Labour designed this legislation to be very broad and empowering. What I want from the Minister is to take us through the change at clause 3 that strikes out “individuals” and strikes out “organisations” and what that will mean for the secondary legislation.

I’m going to come back to that in other parts, particularly penalties, because the penalty regime does seem to envision broader groups of people having access to some form of the information. And the Minister is completely right when he says, “It’s not the bank’s data; it’s my data. I should have the ability to say how that data is used.” He is completely right. That is exactly the regime that we have. And, in New Zealand, we have a really great opportunity to do more than the other countries we compare ourselves to in this space—the EU, the UK, Australia—because we have such broad legislation in some other parts of this. But if it doesn’t let us make secondary legislation about the second layer of this data—if a bank holds pieces of information about you that it uses to make risk assessments based on someone like you, we’re not dealing with that in this legislation as derived data. I think that’s a really good thing. But, then, how will we deal with it? Because the way that this bill was designed in a previous life would have seen that as being dealt with under organisations and individuals, people in the ecosystem who are not customers.

With the risk of running out of time, let me take you to my questions on the interpretation clause: “deception”, here, is a change. It’s been defined using the Crimes Act definition, which is a very, very high standard. We’re talking about false representation via documents or conduct. We’re talking about the intent to deceive, and we’re talking about knowingly not providing material that was key to decisions. This is a really high standard. It is also failing to disclose key information when there was a duty to do so. But while that failure-to-disclose bit in the Crimes Act makes sense in a lot of criminal contexts when there is a duty to disclose, under this legislation there are not necessarily points at which you would disclose. There are no duties along the way. So I want to ask the Minister why that change was necessary and why “deception” has moved up to this “knowingly or recklessly” standard.

I also want to ask him about derived data. Look, we’re going to come back to this. Labour completely supports that. “Go for it!” is the message that people in the industry should be hearing from us. We want really effective use of this, and the strength of this will be industry leadership on this. But the removal of that means that, in other places in the legislation where it’s not dealing with the kind of information that comes from the consumer data, we need other protections in place. And I want the Minister to tell us about that.

I also just want to make the point that when we’re talking about analysis, risk assessments, personalised recommendations, those would have been covered by an idea like derived data. It’s good that it’s not in the legislation. But how does he envision then, say, the penalties applying to people who are using those? And we want them to keep doing that. This is, obviously, a regime that is designed for people to create an extra layer from the data that they derive from consumers, and consumers in most industries will really want that and want to empower that. I also want to ask him how the derived data provision came into the consultation when many in in the industry see that as something which was introduced late in the piece when they were dealing with the Ministry of Business, Innovation and Employment for many years. I just want him to explain that to us.

Thank you, Mr Chair. Again, some good questions. I just want to go back on a couple of matters. There was a question about the definition of “customer” and also “designated customer data”. I want to draw the committee’s attention to my Amendment Paper that is sitting on the Table. The intention in the Amendment Paper is to replace clause 8(1) to redefine a customer so that “Customer means a person that has acquired, acquires, or is seeking to acquire goods or services from a data holder.” I think that’s a tighter, more improved definition. Then in terms of “designated customer data”, the intention in the Amendment Paper is to identify this by replacing clause 8(3) on page 12 with the following: “Designated product data, in relation to a data holder and a provision of this Act, means product data that is specified, or belongs to a class specified, in the data holder’s designation regulations for the purposes of that provision.” So what we are attempting to do here is provide a sufficiently broad definition that, hopefully, will cover most, if not all, cases. Now, that’s a little bit tricky in terms of trying to get that right, but I think that the Amendment Paper redefinition is helpful.

I want to just comment quickly on the question of Ricardo Menéndez March relating to certain data. The intention there is that “certain data”, in inverted commas, covers customer data and product data. So it’s a two-way street. So it’s the product data and the customer data collectively.

There was a question earlier on about safeguards. I neglected to provide the committee with an assurance that one of the key features in terms of safeguards is the accreditation process that exists for the fintech entities. Now, there is an accreditation regime in the legislation. I think that’s a wise and good thing. So only accredited persons making requests will be accredited. Consent must be expressed and informed. So it’s not going to be an entity just sort of telling you what’s going to happen. The individual consumers and customers will have to express informed consent. And then there’s going to have to be some clarification of the application in terms of the Privacy Act. So that’s all part of this legislation and I think that the provisions of the Privacy Act are sufficiently robust to provide the certainty and security that citizens will be looking for.

There have been a couple of questions in relation to derived data. That is an area that occupied concern during the select committee process. There was quite a lot of debate about derived data and the potential that derived data would potentially impede the uptake and add complexity and costs to this new regime. Australia has a derived data process and the experience there we took into account in terms of drafting this legislation. In terms of the Australian experience—and I referred to this earlier on—one of our benefits of coming a little bit late to this legislation process is that it hasn’t worked particularly well in Australia. It’s been a negative experience. So the result at the Economic Development, Science and Innovation Committee, after, I think, careful deliberation and conversation, was that the committee voted unanimously to remove it. So I think that covers that.

I can see Dr Lawrence Xu-Nan is poised, ready for questions. We are getting close, so we’ll take the lunch break now. The House is suspended and will resume after question time.

The House is resumed. Because the chairperson of the Justice Committee is not present in the Chamber, Question No. 1 to members will be set down for next sitting day.

Yesterday, I gave an undertaking to the Hon Kieran McAnulty to come back to him and the House about the use of the word “lie” in the House. My initial response was that no allegation of lying was directed at any particular member. While that was accurate, I wish to reiterate existing Speakers’ rulings that it is not in order to accuse members, specifically or in general, or to imply the motive of lying. It is an offence to the House as a whole—Speaker’s ruling 48/3.

Point of order, Mr Speaker. I seek leave to make a personal statement to the House.

Leave is sought for that purpose. Is there any objection? There appears to be none.

Thank you, Mr Speaker. I acknowledge the report of the Privileges Committee and apologise unreservedly to the House for acting in a disorderly manner that disrupted a vote being taken and impeded the House in its functions.

I declare the House in committee for further consideration of the Customer and Product Data Bill.

Members, the House is in committee on the Customer and Product Data Bill. When we suspended for the lunch break, the committee was considering Part 1. This is the debate on clauses 3 to 13—“Preliminary provisions”—and Schedule 1. The question is that Part 1 stand part.

Thank you, Mr Chair. Before the House broke, we were having a very useful discussion with the Minister of Commerce and Consumer Affairs about the replacement provisions for derived data, which are set out in his Amendment Paper 254.

I want to ask him if he could give the members of the Economic Development, Science and Innovation Committee, who spent quite a long time agreeing in a cross-partisan way to the removal of derived data, some comfort that the new designated customer data provisions really are in the spirit of that cross-partisan agreement. There was agreement all around the table from the ACT Party to the Green Party that derived data, as it was framed in the bill, was not going to be workable, because we wanted the industry to hear from Government to go for it, to go for broke, to build out solutions, and to innovate.

So I want the Minister to step us through how the new provision will mean that industry still has all of the abilities and the empowering provisions in the legislation that they need to get things done and to not be hindered at all by the new provision. I’m thinking here particularly of the major accounting firms. The select committee had a really great submission from Xero about how derived data had just slowed things down in the Australian regime in a way that did not ultimately benefit consumers and certainly did not step out privacy rights.

A really useful part of the discussion was comparing how New Zealand’s privacy rights are really great. They’re a great framework for industry to work with. They’re a good principles basis for Government to also work with, and it means that we have an advantage here. We have an advantage of long-established law and well-understood principles about privacy that we can build from, rather than having to sort of build out two regimes as we go, and confuse the issue of transactional uses of data or the privacy protections that need to be in place for other sorts of uses.

So I’m keen on this idea, and Labour is still in principle supportive of this, but given that we are supportive of it but we’re also supportive of the whole select committee’s view that derived data had no place in this regime, can the Minister assure everyone that that commitment to cross-partisanship here is being honoured and that there won’t be an unnecessary slowing down of creating the useful products that derived data would have otherwise brought in?

I want to ask the Minister just to address the questions about how derived data came into the consultation. Many in the industry felt that it was late in the piece that it was introduced, especially when they’ve been engaging with the officials in good faith for a couple of years before the mention of that. It did really spook the horses; it felt like a new regime being built. So we want to know that this is not that by stealth.

Thank you, Mr Chair. I have a different line of questions for the Minister of Commerce and Consumer Affairs regarding clause 3 of Part 1 of the bill, which is under “Purpose”. I wanted to start with clause 3(1)(b) around “competition and innovation”. Now, going through the regulatory impact statement, we have seen a number of instances where the consultation was done with the Ministry of Business, Innovation and Employment (MBIE), which is understandable. However, what I couldn’t see—and this is a concern—is any consultation that was undertaken with the Ministry of Foreign Affairs and Trade (MFAT). Now, the reason I ask this question is, sure, there’s been a lot of information within the regulatory impact statement around what other countries are doing. We know, for example, the EU is particularly good when it comes to data protection, whereas the US is particularly bad at data protection. However, as we see through a number of our international trade deals—such as the Trans-Pacific Partnership Agreement (TPPA), the NZ-UK Free Trade Agreement, and the NZ-EU Free Trade Agreement (NZ-EU FTA)—each of them will contain a digital economy chapter which, then, pertains to how data can be held accountable within those.

The reason I mention that, in the context of this bill and particularly under the purpose clause, is—and we can go into further details later—around the fact that, for example, under the TPPA, there are specifically clauses about the ability for Governments to be able to challenge or to be able to create that competition under that particular trade agreement. Now, understanding we’re looking at the broader context of trade, in those kinds of cases, we have seen instances where big tech from the US has been able to use free-trade agreements (FTAs)—or particularly digital economy and trade parts of an FTA—as a tool of creating a monopoly or creating uncompetitive behaviour in certain marketplaces.

One of the examples that’s currently happening right now, although it’s not within our Aotearoa context, is the fact that Musk is currently suing the Indian Government for non-competitive behaviour, or for discriminatory behaviour, under certain trade agreements. So my first question is around whether the Minister has any clarity or clarification on whether MFAT has been consulted, in the context of this particular bill, specifically under the digital economy chapters.

Now, following on in the same vein, the question that you mentioned, Minister—and I think it’s a really important question to ask—is: it is my data, therefore I should be able to be able to use it in a way that I want to. However, that data sovereignty also is questionable under international trade deals and agreements, particularly from the perspective that in certain trade deals—and, again, I go back to the TPPA and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, which doesn’t exist, thankfully, under some of the newer ones like the NZ-EU FTA.

For example, in certain trade deals, we are not, under those trade deals, allowed to have that data being held onshore. In fact, there are certain trade agreements where we can’t even hold that data or have a copy of our own data onshore, because there’s no need for there to be an onshore presence. So, in this particular case, when the Minister is talking about onshore data and my data, what reassurances does the Minister have, from various consultations, that the data that we are holding under the requirement of this legislation, indeed, is allowed to be held onshore? Another example is the NZ-EU FTA, which, now, does allow us to hold a copy of that, but, again, there is no specific requirements for the original data centre to be held onshore.

The last question I have for the Minister is around clause 3(2)(c) in terms of “requiring certain safeguards, controls, standards, and functionality”, and I particularly want to hone in on the idea of third parties that are authorised, because, again, we have seen instances where, yes, although the data is being held by a particular company or a particular provider, but the data system itself—for example, let’s say Google or Meta, etc.—the data is not within the jurisdiction of those particular companies. So when we’re looking at creating safeguards, controls, and standards, does that mean that the liability is held within the companies themselves, or, originally, will some of those data collections or those kind of big tech elements ultimately be liable?

Again, in some of our trade agreements, there are certain clauses that mean that big tech companies are not liable for violation by a third party. So those are the three questions I have for the Minister: has there been consultation with MFAT in terms of consistency with our trade agreements? I know it’s quite a big concern in terms of the MBIE-MFAT interaction in this case. When we’re looking at my data, I can choose to use it in my way. What does data sovereignty in the context of this bill mean, and does that, again, come into conflict with some of the issues we see with our trade agreements? And, lastly, when we’re looking at third-party safeguards, controls, and standards, is this to do with the company that holds the data, and what happens if the companies themselves don’t hold the data but the data is being moved to a third-party provider—i.e., a big tech?

Thank you very much, Mr Chair. I want to just cover off on a couple of the questions that have been asked by members who have clearly been giving good and considered thought to this part of the bill.

I just want to go back to the derived data question that Arena Williams raised, because it is interesting. I want to make it very clear that my Amendment Paper actually doesn’t reintroduce derived data into the legislation. The Economic Development, Science and Innovation Committee made it very clear that for a variety of reasons it needed not to be included. But what the Amendment Paper does do is it clarifies the designated customer data as the specific types of data designated through the regulations. Now, what all that means is that the regulations contain the detail, not the legislation. The regulations have yet to be completely drafted, but they will be commenced and put into place before the legislation can be enlivened or switched on, if I can put it that way. We’re hoping to have that process for banking completed well before Christmas this year. So that’s the timetable plan on that. I’d also refer the member, if she wants to go into more detail on that—and I realise that sometimes the vocabulary and the language that is used around this sort of stuff is quite complicated and quite detailed, but the departmental report specifically relates to these issues and specifically paragraphs 73 to 77 of the departmental report refer.

There were also some questions about privacy rights. Well, of course, we have been careful to put into the legislation provisions that ensure that the Privacy Act is maintained and that, I think, provides the safeguards that the member will be looking for.

Lawrence Xu-Nan asked some questions around the role of the Ministry of Foreign Affairs and Trade—had they been consulted. What I can confirm is that the officials working on this bill have consulted very widely indeed and that no issues of the sort that he has questioned have arisen. So I take that to mean that, from an officials’ point of view, no matters have been brought to their attention.

But in making that point—because I think he raises an interesting question about trade agreements and the international scene and so forth—data doesn’t have geographic barriers. Data is data. What the barriers are are technical barriers. They are system barriers rather than lines on a map around the planet. So those are matters that we will have careful consideration of in terms of the regulations, and those will differ depending on which sector is being considered. The whole purpose of this legislation is to create the framework and then have separate regulatory constructs for each of the individual sectors that will then come under the purview of the legislation.

And, of course, in terms of third parties—well, a key feature of this legislation is the accreditation process and that will be watched and monitored very carefully.

Thank you, Mr Chair. I appreciate the Minister of Commerce and Consumer Affairs’ answers to these questions, and I want to pick up exactly where he left off with respect to the third-party matters. As I look at Part 1, clause 5(2), it says in there, “In this Act, a person is involved in a contravention if the person—”, and then it goes on to explain it.

I also recall the comments made by my colleague Arena Williams around the definition of theft—or deceit, was it? I think it was deceit—in the Interpretation, and it’s quite clear because it’s in the Crimes Act and it makes it quite clear. So I wonder, just to be very specific on this one, if a person is involved in a contravention—and, so it says there, “(a) has aided, abetted, counselled”, and we’ve talked about third parties—I wonder, then, if deceit is considered deceit and it’s quite clear in the Crimes Act, whether or not anybody is involved in a contravention, as described here, why that doesn’t fall under what would be considered deceit or, if you’re a third party, as it says there, has aided, abetted, or counselled. Just some clarification on that because this is to the point that we’ve made—and a number of speakers have since we’ve started the committee of the whole House on this bill—around the confidence that the public have on matters of their data.

Before I resume my seat—because that’s the very specific question I have for the Minister—I just want to acknowledge the Minister’s comment about how his data is his personal data. I know that a group called Te Kāhui Raraunga have done a lot of work on data sovereignty, so I’m heartened by those kinds of comments from the Minister to make sure that there is data sovereignty and that that kind of information that is owned by us, by people, by real people. Accepting the Minister’s definition that there aren’t any hardline boundaries on these matters; as he’s also stated, shop fronts, if you will, have changed in ways, shape, form, and nature. Once, you used to have to go to a bank; now, you can do it all online. You used to have to go to a shop; now you’re accessing it through different portals online, etc. So it’s really important to understand, while there might not be those geographic boundaries, if you will, that we do operate in a world, in a time, and in a space that isn’t defined, necessarily, by boundaries. But none the less, these functions of what would be seen as normal purchase, normal involvement in the economy, normal spaces of sharing our data still happens.

I just wanted to make that point but look forward to hearing from the Minister about that particular matter on the involvement in contravention, in particular with his statement around third parties.

Thank you, Mr Chair. I want to go to clause 4 and ask about the overview. What I noticed was, first of all, it’s a very unusual way of laying out a clause, and it seems a very effective way, actually. My understanding is that that’s an attempt at a kind of plain language that’s been adopted from the earlier iterations of the bill and kept because it’s seen as a way of people understanding their obligations very clearly. But it did lead me to ask some questions through it, which I’d just like to go through. I also wanted to go, really, to subclause (6) of that, which says that “This section is only a guide to the general scheme and effect of this Act.” So it’s in a place where we often have interpretations, etc. It doesn’t actually have effect. So I’d like the Minister of Commerce and Consumer Affairs’ comment on what place it has.

Then I’d like to just look at the clause itself in terms of what it’s doing. It’s talking about, in subclause (2), “Services relating to customer data are regulated as follows:”, and you’ve got “If … A person”, “Then …”, “However …”. There is a part of that when I get to “However”, where it says, “Certain protections apply, including duties to—confirm that the customer has authorised the request”. Now, this is that a person using this knows that they should be confirming that the customer has authorised the request. I wondered how long that would be that they had for that issue and then they need to check the identity of the persons who make the requests. Again, how would they do that? How would they check the identity? And how do they check that the customer has authorised the request? What’s driving “has to be made”? They also have to have a complaints process. My question there is: what would this look like, and where would they go to find those kinds of details which are sort of in line with this clause, very much practical ways of complying with the Act? Thank you, Minister.

Thank you, Minister, for your response. Just so I have absolute clarity, can I check with the Minister of Commerce and Consumer Affairs that the Ministry of Foreign Affairs and Trade has been consulted on this particular bill, in relation to the digital chapters of our trade agreements? That would be great.

Just to follow up from that, to give an example, let’s say we look at clause 11(1)(b)—or even indeed clause 11(4)—which talks about, “an overseas agency (B), in relation to any conduct by B in the course of carrying on business in New Zealand”. The issue and some of the challenges that we do see in terms of the way that our trade agreements work and how our data works in this context, is the fact that some of these—particularly when we’re looking at some of the big tech—do not need to have an onshore presence, which means that some of them are not considered as carrying on business in New Zealand, because our domestic law has no jurisdiction over them. This is one of the things which would then lead to—if any issues and complaints, it will go to a supranational court, where people who are judges of that would traditionally be trade, as opposed to data or digital—experts.

Using clause 11(1)(b) as a very tangible example, when we are looking at something like this, and let’s say, for example, in the context of privacy, is the Minister saying that, for anything—because it’s our data, and we do have that data sovereignty—that the privacy of our data, that big tech, even as a third-party provider to some of the companies because they certain technology to store or to use or to process their data, are liable and held accountable under domestic legislation, as suggested in clause 11(1)(b)?

Mr Chair, thank you for an opportunity to ask the Minister of Commerce and Consumer Affairs about the deception provision, which has changed in this bill. I’m nervous that we will not get an opportunity to deal with this definition before we move on to the penalties clauses. I acknowledge that the Minister has given an answer about that change, but the change that I am asking for here is that the criminal definition of deception include a failure to disclose information when there is a duty to disclose. So that’s like a failure by omission that is well established in the criminal law but only applies when there are positive duties.

So my question to him was: are the provisions in this legislation being read as duties on the people who have roles as data providers and data users under this, and therefore there is a deception by omission provision in this law? Because that wasn’t there before. That omissions element is new. The penalties weren’t designed when there was an omissions element, when you could be penalised for not providing something or being silent on the issue or being reckless as to whether you were silent.

The reason I’m pressing this point in that section is because it then goes to all of the ways we might do enforcement around it. No one in the select committee room wanted a penalties regime where small fintechs were being held to standards and penalties if they were reckless as to whether they were silent on it. Absolutely hold them to account if they have had a data breach where they did something to actively provide the data to the wrong person—absolutely. Their security systems are designed for that; that is a really important part of this regime. But where there is an omission, that’s another thing and I just want to make sure that the Minister is comfortable with that. If he’s comfortable with that, then can he give us that indication and then we can deal with it in the penalties provisions, about what has changed since then?

In the EU cases on this—the only jurisdictions that have had any significant litigation on this around the access to data where omissions are concerned—the courts have had a lot of costly litigation on this and they have a mechanism for doing that. It’s by lots of consumers joining up together, whether that’s through class action lawsuits provisions or organisations bringing cases on their behalf. We don’t have that, so if we were needing to develop that through court systems, that would need to be individuals, me and you who use our banking services and might be plugged in to an app or might be getting financial information about our own practices through one of the fintechs or needing to do that law development. So it’s just not really possible in New Zealand. So I just wanted to clarify how that deception rule might be tested if it is a bit fuzzy.

Look, I just sense that we’re getting a little bit repetitive. So I just want to make it very clear that there is a provision at clause 5(2) which defines a terminology, and that says “involved in a contravention”, and I draw members’ attention to that. So, “In this Act, a person is involved in a contravention if the person—(a) has aided, abetted, counselled, or procured the contravention; or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention.” So that’s a very broad and wide catch-all. I think that that is adequate, but I understand that the member may wish to pursue that in another part of the bill when we get to it.

I want to just comment on the question that was raised relating to overseas persons. Clause 11(1)(b) provides that the bill applies to overseas persons “carrying on business in New Zealand”, and subclause (3) clarifies that the person need not have a place of business in New Zealand. So I think that covers that.

In a specific response to Lawrence Xu-Nan’s question about the Ministry of Foreign Affairs and Trade (MFAT), I maybe didn’t make it as clear as I should have done in my previous response, but I’m able to confirm that, absolutely, MFAT was consulted, and no issues were raised about New Zealand’s trade agreements.

Then just in terms of the issue that was raised about overview, this is a bill that is technical in nature. We recognise that; we understand that. So that wording around “overview” attempts to help explain the framework. It’s sort of the written equivalent of a flow chart, if I can put it that way. Yes, it’s an interesting technique, but I think, ultimately, a very helpful one.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 254 be agreed to.