NEWS ON POLICY
AND POLITICS |
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The 48th Parliament has adjourned and will formally expire on 6 October. After a bumper session of introductions, readings and urgency motions, the business of the House is substantially done. As the focus of MPs turns to the election campaign, Watching Brief will turn its focus on the parties' key policy planks. We begin this week with infrastructure and resource management under the title "A Matter of Policy". This will be in addition to our usual features. IN POLITICS Godzilla versus the…um…Cockapoo? A MATTER OF POLICY Infrastructure more... Resource Management more... IN THE NEWS Court Of Appeal Decision - Auckland DHBs and Lab Tests Tender more... Regulations Review Committee Decision on Airport Sale more... PROGRESS OF LEGISLATION On Parliament's dissolution any legislation before Select Committees or which otherwise has not progressed through its stages lapses. However, the House can, by resolution, reinstate any outstanding business when it sits again in the new Parliament. In practice this means that the life of any incomplete business will rest with the Government of the day. In the event of a change of Government many aspects of the legislative programme can be expected to lapse entirely. Bills Introduced/Awaiting First Reading more... Bills Referred to Select Committee
Bills Reported Back / Awaiting Second Reading more... Bills Passed Second Reading / Awaiting Third Reading more... Supplementary Order Papers more... Bills Passed Third Reading more... Acts Assented more... Regulations more... IN COMMITTEE more... IN CONSULTATION more...
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Godzilla versus the…um….Cockapoo?The toxicity of the Parliamentary environment before the last week's adjournment was evidently only a foretaste of what the Government intends will be a total war to secure an historic fourth term. Setting John Key firmly in its sights, Labour clearly hopes to use the long campaign to dent Key's credibility sufficiently to give it the 38% support it believes it needs to form a coalition Government in 2009. The 48th Parliament has not even taken its last gasp but already Labour has fingered Key for the collapse of Merrill Lynch and the death of Chinese babies, while the terms "scab" and "rich prick" once again began to do the media rounds. But thus far in the campaign the only real damage Key has suffered has been self-inflicted. Failing to reveal that his family trust held twice the number of shares in Tranz Rail than originally supposed, Key was guilty of a political lapse that gave Cullen the chance to add "liar" to the list of his other supposed deficits. However, the glee with which the Deputy Prime Minister seized on the discrepancy in Key's accounting was itself poorly judged and diluted what otherwise should have been a telling political moment. Rather than raising legitimate questions about Key's political savvy, Cullen made the worst possible attributions, cutting a Gollum-like figure with an audience that these days is more easily repelled than pleased. National in response has been sober to a conspicuous fault. Consciously opting for the non-confrontational, it has reasoned that a public aversion to negative campaigning will play against Labour over the long term. It's the nice guy gambit that more aggressively inclined MPs will find difficult to sustain. Certainly, resting your political appeal on an appearance of being a kicked puppy may not be enough with an electorate that perversely rates a hunger to win and the occasional capacity for ruthlessness that goes with it. Thus far, though, National's strategists seem to have got it right. However, credit must also go to Dr Pita Sharples and his surgically timed claims of heavying by Labour over the censure of Parliamentary bad boy Winston Peters. And for those in National breathing a sigh of relief, it should not be imagined that Labour's arrows are spent. They have campaigned on trust for a reason and National should expect further revelations designed to throw the credibility of National's leadership team into doubt. |
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Infrastructure and the Resource Management Act 1991Whatever Government results from the 8 November election, infrastructure will be high on the legislative agenda. The commitment of both major parties to direct investment in roads, water, energy and transport, balanced by the acknowledgement of the need for sustainable development, will influence growth and innovation and have a significant impact on all New Zealanders, both in the short and long term. InfrastructureWhilst the media have made much of the historic underinvestment in infrastructure, less consideration has been given to what the major parties intend to do to address it. What is unclear, is to what extent any future Labour-led Government's plans will be influenced by their likely dependence on the Greens to hold onto office. This suggests that the current tensions between Environment Minister Trevor Mallard (and his more bullish approach to development) and the Greens will be addressed, but with what result remains to be seen. National for its part has a less compromised picture of what they want to achieve. Key has pledged to fund $5 billion worth of infrastructure spending as part of a 20 year national infrastructure plan. Over this period, the Government will fund roading, public transport, energy, water and broadband. National's plan sets out that this will be funded by increasing the country's debt to GDP target from 20 to 22 percent. In addition, National plans to fund projects by issuing infrastructure bonds. These would essentially be shares in public works such as roads or power stations that could be bought either by institutional investors or individuals. The Resource Management ActLabour This promises to be one of the more significant policy battlegrounds, notwithstanding its relative lack of glamour compared to the hardy election annual of law and order and tax cuts. Despite its misgivings about the capacity of regional government to manage, it considers that the existing legislative framework is fit for purpose. Its proposed focus will be on improved administration, assisted by more rigorous national planning standards and policy statements. This largely status quo approach will maintain the devolved decision making structure and rely on call-in provisions to ensure efficiencies where large-scale projects are involved. Consistent with this, Labour hopes to build Council capacity and then involve Councils in all resource management decisions which affect them. Applicants for resource consents will not be able to bypass local councils by applying directly to the Environment Court ("EC"), and if consents are appealed to the EC, the Court must have regard for the original council decision. Labour will allow the Minister for the Environment to intervene in some resource consent applications in cases where there is widespread public concern or interest, significant use of natural resources, possible significant or irreversible damage to the environment, or where there is limited local capacity to deal with the matter. If intervention is required, it could take the form of a range of options including making Crown submissions, appointing a member to hearings panels, directing councils to consider matters jointly, or "calling in" the application. These options will be decided in consultation with the affected councils. To provide New Zealand-wide consistency in planning and environmental standards Labour has been developing National Policy Statements and/or National Environmental Standards for clean-up of contaminated sites, drinking water sources, fresh water quality and management, urban design, application of bio-solids to land, electricity generation (renewable and non-renewable), and rare and endangered eco-systems. Labour has indicated further interest in Statements or Standards electricity transmission, telecommunications, land transport noise, storm water from roads, and sewage discharges into the coastal marine area. National National for its part is considering more fundamental reform of the RMA to provide greater central government direction on its application. This would be implemented through a two-phase process. The first phase of reform is aimed at streamlining and simplifying the Act. If elected, National will introduce a substantive amendment bill within 100 days and pass it into law within six months. This would make over numerous amendments to the current Act including removing the Ministerial veto on coastal consents, limiting vexatious and frivolous objections, reducing the number of consent categories, stopping competition related objections, and making greater use of national standards. An Environmental Protection Authority ("EPA") will be created out of an expanded Environmental Risk Management Authority, and given responsibility for developing national environmental standards and a new "Priority Consenting" process. Priority Consenting will be the consenting process for major infrastructure projects. These consents will have to be processed by EPA within nine months. References to Treaty principles in the RMA with specific requirements for iwi consultation will be removed. The second phase of reforms will look at bigger policy issues such as:
And the Others Of the minor parties, NZ First has the most developed policy in relation to the RMA. It includes undertaking a thorough revision of the RMA focussing on improving and enhancing the value of the pre-hearing and hearing stages and removing reference to the "principles of the Treaty of Waitangi". The Green Party largely seems to follow Labour's lead and proposes to introduce various National Policy Statements to influence the management of New Zealand's resources. The Māori Party has no developed policy statement on the RMA. |
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Court Of Appeal Decision - Auckland DHBs and Lab Tests TenderLast week the Court of Appeal released its decision in the Auckland DHBs' lab tests tender case. The appeal by Lab Tests Auckland Limited against the High Court's invalidation of the tender process was allowed. The judgment is comprehensive and has potentially far-reaching implications for the future of management of conflicts of interest specifically and judicial review generally. Judicial Review reviewed The Court of Appeal was troubled about the scope for judicial review in cases such as this, finding that "the courts should take a cautious approach to imposing public law procedural obligations of the sort at issue in this case on DHBs [ie commercial decisions]". Their Honours signalled their doubt as to whether the High Court should have considered this particular judicial review in the first place. They confirmed that commercial decisions (such as tender processes) may only be subject to review in limited circumstances, finding that the High Court judge in this particular case had not given proper weight to the commercial context within which the DHBs were operating. Their Honours' comments in respect of judicial review were comprehensive (with Justice Hammond devoting his entire judgment to the subject), signalling a return to a more conservative approach to judicial review proceedings. Conflicts of interest The Court undertook a comprehensive analysis of the facts and found that the High Court judge had taken too broad a view when he found that the person at the centre of the case (Dr Bierre) had one continuous conflict of interest which applied for the entire time that he served as a board member on the Auckland DHB. In contrast, the Court of Appeal found Dr Bierre had two conflicts of interest at two different periods of time: first, in relation to his boutique laboratory proposal (early 2005), and then second, from the time he decided that he would attempt to put together a consortium proposal (end 2005). This finding was significant in relation to the application of the facts to the particular tender process because it meant that the two conflicts of interest were, in fact, dealt with appropriately (the first came to an end and the second was dealt with appropriately when Dr Bierre took his leave of absence from the board). Confidential and insider information The New Zealand Public Health and Disability Act 2000 and Crown Entities Act 2004 provide a specific framework for board members and the use of confidential and 'inside' information. This framework contemplates that board members, many of whom will have conflicts of interest arising, will often receive 'soft' industry information. For there to have been improper use of confidential information in this case, Dr Bierre would have had to receive 'hard' confidential information. The Court found that that did not occur. The Court also found that the other party (Diagnostic Medlab) had not been disadvantaged as a result of Dr Bierre's knowledge of the 'soft' information. Consultation For an obligation to consult to be enforceable by way of judicial review, it is necessary to identify the source and nature of consultation obligations and the way in which they have been breached (ie what is the purpose of consultation in the particular circumstances?). The Court of Appeal found that, in the DHBs' context, a statutory obligation to consult with the relevant PHO/s arises where significant changes are to be made to the services being provided. In this case, the Auckland DHBs were seeking the same service specifications for laboratory testing, but at a different price. The Court of Appeal was not satisfied, therefore, that there was an additional obligation to consult specifically with the relevant PHOs (as found by the High Court judge). Russell McVeagh acted for Lab Tests Auckland Limited in this case. We are planning to run a number of client seminars in Auckland and Wellington in the near future focussing on the Court of Appeal's findings, as well as the recent Hawke's Bay DHB inquiry into the management of conflicts of interest. We will send you more details soon. Regulations Review Committee Decision on Airport SaleParliament's Regulations Review Committee has released its report on changes to the Overseas Investment Regulations that blocked the partial sale of shares in Auckland International Airport to a Canadian pension fund. The Committee said that the Government appeared to use the regulations in an unusual and unexpected way to make changes that should have been dealt with through legislation. The Committee recommended the Government consider whether the Overseas Investment Act should be amended and take steps to ensure legislation does not allow regulations to be made that provide for criteria to be taken into account by Ministers beyond that outlined in the principal legislation.
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PROGRESS OF LEGISLATION |
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| On Parliament's dissolution any legislation before Select Committees or which otherwise has not progressed through its stages lapses. However, the House can, by resolution, reinstate any outstanding business when it sits again in the new Parliament. In practice this means that the life of any incomplete business will rest with the Government of the day. In the event of a change of Government many aspects of the legislative programme can be expected to lapse entirely. Bills Introduced/Awaiting First ReadingCopyright (Commissioning Rule) Amendment Bill The purpose of this Bill is to provide consistency in the default rules for copyright ownership of commissioned works; to facilitate clarity about the rules for both the creator and the commissioner; and to assist creators in retaining copyright in their works so as to expand their ability to create future works, while maintaining the same number of works commissioned. Essentially, the effect of the Bill will be that copyright ownership by default will vest in the creator for all specified types of commissioned works. The ability for parties to contract out of the new default rule will remain. Social Assistance (Payment of New Zealand Superannuation and Veterans Pension Overseas) Amendment Bill This Bill amends the New Zealand Superannuation and Retirement Income Act 2001, and the War Pensions Act 1954 to make it easier for superannuitants and veteran's pensioners to travel or retire overseas. Waikato-Tainui Raupatu Claims (Waikato River) Settlement Bill This Bill gives effect to the deed of settlement and Kiingitanga Accord between the Crown and Waikato-Tainui. Search and Surveillance Powers Bill The Search and Surveillance Powers Bill implements the Government’s decisions on the legislative reform of search and surveillance powers. These decisions were largely based on the Law Commission’s report, Search and Surveillance Powers (NZLC 97). Specifically, this Bill provides legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity. It also aims to address judicial concerns with aspects of the status quo, particularly the quality of applications for search warrants. The Bill provides for the training of issuing officers who issue search warrants, prescribing forms for warrant applications, and imposing reporting requirements. Nga Rohe Moana o Nga Hapu o Ngati Porou Bill The Bill gives effect to a deed of agreement between Ngati Porou and the Crown in respect of the iwi's foreshore interests. Domestic Violence Reform Bill The Bill amends the Domestic Violence Act 1995, the Care of Children Act 2004 and the Sentencing Act 2002, and the Bail Act 2000. It is intended to ensure that Court processes and programmes are more responsive to the victims of domestic violence. Inquiries Bill The Bill is intended to modernise the law relating to Royal Commissions and commissions of inquiry. Bills Referred To Select CommitteeThe Aquaculture Legislation Amendment Bill (No 2) was read for the first time and referred to the Primary Production Committee. Submissions are not called. The Committee is due to report back on 6 October 2008. The Education Amendment Bill (No 3) was read for the first time and referred to the Education and Science Committee. Submissions are not called. The Committee is due to report back on 6 October 2008. The Electricity (Continuance of Supply) Amendment Bill was read for the first time and referred to the Commerce Committee. Submissions close on 6 October 2008. The Committee is due to report back on the same day. The Government Superannuation Fund Amendment Bill was read for the first time and referred to the Finance and Expenditure Committee. Submissions are not called. The Committee is due to report back on 6 October 2008. The Port Nicholson Block (Taranaki Whānui ki Te Upoko o Te Ika) Claims Settlement Bill was read for the first time and referred to the Māori Affairs committee. Submissions are not called. The Committee is due to report back on 6 October 2008. The Settlement Systems Futures, Futures and Emissions Units Bill was read for the first time and referred to the Commerce Committee. Submissions close on 6 October 2008. The Committee is due to report back on the same day. The Waikato-Tainui Raupatu Claims (Waikato River) Settlement Bill was read for the first time and referred to the Māori Affairs committee. Submissions are not called. The Committee is due to report back on 6 October 2008. The Whakarewarewa and Roto-a-Tamaheke Vesting Bill was read for the first time and referred to the Māori Affairs committee. Submissions are not called. The Committee is due to report back on 6 October 2008.
Bills Reported Back / Awaiting Second ReadingAquaculture Legislation Amendment Bill Bills Passed Second Reading / Awaiting Third ReadingCorrections (Mothers with Babies) Amendment Bill Supplementary Order PapersSOP 254 Financial Service Providers (Registration and Dispute Resolution) Bill This SOP amends the Financial Service Providers (Registration and Dispute Resolution) Bill. Key changes include:
SOP253 Financial Advisers Bill This SOP proposes a number of changes to the Financial Advisers Bill, mostly in the nature of minor or technical refinements. However, some are more substantive. These include:
SOP252 Aquaculture Legislation Amendment Bill This SOP divides the Aquaculture Legislation Amendment Bill into the following four Bills:
SOP251 Aquaculture Legislation Amendment Bill This SOP inserts certain new clauses and drafting changes to the Aquaculture Legislation Amendment Bill. The new provisions provide for the chief executive of the Ministry of Fisheries to enter memorials in the appropriate register against all quota for stocks specified in a notice by the chief executive of an aquaculture decision that is a reservation. These new sections take into account amendments to the Resource Management Act 1991. SOP250 Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill This SOP amends the Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill to reflect the addition of a certain areas. New clauses provide for public access, and the grant of a public right of way easement, over licensed land, giving effect to clause 12.38 of the deed of settlement. This SOP also amends certain unintended omissions. Bills Passed Third ReadingAffiliate Te Arawa Iwi and Hapu Claims Settlement Bill Acts AssentedReal Estate Agents Act 2008 RegulationsMarine Safety Charges Amendment Regulations 2008 In CommitteeThe Finance and Expenditure Committee completed its inquiry into the Future Monetary Policy Framework. The Committee also reported on the format of financial information presented in appropriations bills and recommends that the House take note of the report. The Health Committee heard submissions on the petition of Nicola Grace for Health Freedom and 7,000 others. The petition requests that the regulatory regime applicable to natural products is relaxed. The Committee’s report on the petition of the Cancer Society, Heart Foundation, ASH and 20,000 others resulted in the Committee recommending by majority the banning of cigarette and tobacco displays in retail outlets. The National Party issued a minority report in which it said more information was required. The Committee also reported on the petition of Ann Galloway and 33,911 others relating to the pay and conditions of aged-care workers. The Law and Order Committee reported on the Wanganui District Council (Prohibition of Gang Insignia) Bill and recommended unanimously that the Bill pass with amendments. The Local Government and Environment Committee continued hearing submissions on petitions against the construction of mobile phone towers, specifically in Titahi Bay and Atawhai. The Committee continued hearing briefings on the cleanup of the Mapua contaminated site. The Māori Affairs Committee completed its inquiry into Māori participation in Early Childhood Education. The Committee also recommended to the Speaker of the House that consideration is given to an annual exchange programme between the Committee and its counterpart at the Commonwealth Parliament in Australia. The Privileges Committee reported to the House on the question of privilege relating to Rt Hon Winston Peters. The Committee recommended the censuring of Mr Peters by majority and requested that he filed amended returns on pecuniary interests for 2006, 2007 and 2008 by majority. The Committee unanimously recommended the review of the Standing Orders relating to pecuniary interests and the enhancing of support for the Registrar of Pecuniary Interests. The Regulations Review Committee reported on its inquiry into material incorporated into law by reference. The review aims to have standard requirements for such information so that the public has easier access to law. The Social Services Committee reported on its inquiry into the care and rehabilitation of youth sex offenders.
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IN CONSULTATION |
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© Russell McVeagh 2005. All rights reserved.