Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
I move, That the Trans-Tasman Proceedings Bill be now read a second time. The bill contains a package of new measures aimed at resolving civil disputes involving both the Australian and New Zealand jurisdictions more effectively and at lower cost. It will also improve regulatory enforcement between New Zealand and Australia to the benefit of both countries. The bill implements the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement, a document signed by the previous Government in 2008. The Australian Parliament passed the equivalent Trans-Tasman Proceedings Act 2010 in March this year. The Australian Act mirrors this bill as introduced except where differences were necessary due to different legal and political contexts. The new regime to be created by the bill and the Australian Act is one of several initiatives that the Government is progressing to help bring about a single economic market between the two countries. As the Prime Minister said in his statement to Parliament in February, the single economic market is to be given a new impetus this year.
I thank the Justice and Electoral Committee for its consideration of the bill, particularly within a shortened time frame. The committee made a number of recommendations to improve the operation of the new regime on both sides of the Tasman and aligned the bill more closely with the Australian Act. For example, proceedings filed but not served before the legislation comes into force will be able to be served on defendants in Australia under the new service arrangements in the bill. However, the bill as introduced meant that those defendants would not have been able to apply for the New Zealand proceedings to be stayed using the new test in the bill. They would also not have been able to appear by video link as of right at a hearing of their application. The committee recommended a change to ensure that all defendants served with proceedings under the bill are able to apply for those proceedings to be stayed under the new arrangements. I expect that the Australian Act will be amended to reflect that change and other changes recommended by the committee where necessary for the two statutes to remain aligned. The committee recommended, for example, that the purpose clause of the bill be changed to mirror the purpose section of the Australian Act. This is important, because purpose sections are used as an aid to interpretation by the courts.
The committee also recommended that a provision be inserted to clarify that the trans-Tasman evidence regime, which is being extended to criminal matters, will operate in parallel with the Mutual Assistance in Criminal Matters Act. There is already an equivalent provision in the Australian Act. The committee also made recommendations to ensure that the bill worked in the New Zealand context. The New Zealand Law Society submitted that it was important that the bill allow rules to be made to implement the new regime not only under the Judicature Act and the District Courts Act but also under the Family Courts Act, because aspects of this bill will apply to many Family Court proceedings. The committee agreed and recommended that the bill allow rules to be made using any power to make procedural rules for a court or tribunal. That raises an important point, namely that the bill is relevant to business and personal civil disputes. Australia is the biggest market for our manufactured products, a crucial source of our foreign investment, an important source of our skills, and a significant source of our tourism earnings, but with more than 460,000 New Zealanders living in Australia, our personal relationships also bridge the Tasman Sea. This bill will span those different spheres by making it easier to resolve disputes that arise with connections to both New Zealand and Australia and will allow a greater range of judgments to be enforced.
The Trans-Tasman Proceedings Bill is an example of the level of integration that can be achieved between these two civil justice systems where both countries share a common legal heritage and each country has sufficient confidence in the other’s judicial and regulatory institutions. I commend the bill to the House.
Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this
My involvement in the Trans-Tasman Proceedings Bill, which we have before the House, dates back to 2003 when I was an Associate Minister of Justice and was instrumental in establishing the Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement. That is where the whole process began. It is therefore particularly satisfying that I am able to contribute to the final set of legislative steps that need to be taken for it to be enacted.
There obviously has been a lot of water under the bridge since 2003. It was just a matter of luck or chance that I was able to step in for the Attorney-General at the time and sign the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement. I have even brought a copy of it down to the House, because it does have my signature on it—and I am kind of proud of that—on behalf of the Government of New Zealand. The Attorney-General of Australia at the time, Robert McClelland, signed for the Government of Australia.
Hon LIANNE DALZIEL Link to this
He still is the Attorney-General at this stage.
The reason I mention that is that I had the wonderful opportunity of being at the signing ceremony, which was conducted at the High Court in Christchurch, which of course is my home town. There are not going to be many opportunities in my life to sit on the bench of the High Court, but I had the opportunity on that occasion, and it was a great honour to be able to do that.
I think it is worthwhile reading out the preamble to the agreement that we signed that day, because the preamble encapsulates the essence of the legislation that we have before the House and that will conclude its stages while the House is in urgency. “The Government of New Zealand and the Government of Australia … Conscious of their long-standing friendship and close historic, political and economic relationship; Recognising the development of that relationship through the framework established by the Australia New Zealand Closer Economic Relations Trade Agreement done at Canberra on 28 March 1983, and subsequent arrangements and agreements developed within that framework of which this Agreement forms a part; Acknowledging each Party’s confidence in the judicial and regulatory institutions of the other Party; Affirming their shared commitment to appropriate and effective resolution of trans-Tasman civil disputes and increased regulatory cooperation; Desiring therefore to establish a new trans-Tasman regime, building on the existing cooperative regime covering the taking of evidence and associated court procedures, to further streamline aspects of civil court proceedings and regulatory enforcement and reduce unnecessary procedural and regulatory barriers to the conduct of litigation; Have agreed as follows:”. And there follow the pages of the agreement, including the articles that have now been translated into the legislative form before the House.
What we have seen happen over the period I have mentioned, from 2003 to 2010, has been a significant step, because there has been willingness on both sides of the Tasman to place trust in each other’s judicial and regulatory processes. I think that is absolutely fundamental to the development of the single economic market that the Attorney-General spoke about. The proposals in that agreement took the innovation and cooperation that had already existed with the CER to a new level, and I think it has established itself as a very important fundamental from a civil justice perspective, as it will improve the resolution of legal disputes that involve parties and/or assets on either side of the Tasman.
Looking at the magnitude of the problem, I reflect back on the regulatory impact statement. Tragically, in a way, this was one of the last pieces of legislation to be tabled in this House that had the regulatory impact statement included in the explanatory note. The useful thing about having this information at hand when we are debating legislation is that it states the problem that the legislation is designed to address. I think it is instructive to look at what that actually means in the context of this legislation. Here we have a statement of the magnitude of the increase in the movement of people, assets, and services between New Zealand and Australia, and I think those figures are worth recalling for the record. In 2006 over 900,000 Australians visited New Zealand and well over 1 million New Zealanders visited Australia, almost 450,000 New Zealanders live in Australia, and around 60,000 Australians live in New Zealand. In the year ended June 2006—it is a little out of date now—goods exported from Australia to New Zealand came to NZ$7.641 million and goods exported from New Zealand to Australia came to NZ$6.806 million. In the year ended September 2006 New Zealand exports of services to Australia came to NZ$2.387 million, and Australian exports to New Zealand came to NZ$3.588 million. As at 31 March 2006 total Australian investment in New Zealand was in the region of NZ$68 billion, and total New Zealand investment in Australia was in the region of NZ$25 billion.
The point is made in the regulatory impact statement that “This leads inevitably to a greater number of disputes involving individuals or businesses with a cross-border element. Under the Australia New Zealand Closer Economic Relations Agreement (CER) and the work around achieving a Single Economic Market with Australia (SEM), each country also has a significant interest in the effectiveness of existing regulatory regimes, such as the Commerce and Securities Acts and their Australian equivalents, to ensure that limits to the reach of each country’s regulatory system are not exploited and that consumers have effective redress.” I think the fact that the regulatory impact statement actually mentions the importance of ensuring that the reach of each country’s regulatory system is not exploited points out the reality of the situation. We have to rely on one or the other, because there can be an element of regulatory arbitrage to avoid the enforcement of proceedings in one jurisdiction by simply removing oneself to the other and expecting the matter to be addressed in that context.
When I signed the agreement on behalf of the New Zealand Government I commented that in my role as Minister of Commerce I could see some very broad benefits in the approach that was being adopted. As well as facilitating the effective resolution of legal disputes, the arrangements for regulatory enforcement are very important in that CER context, and will certainly support the then recently implemented arrangements for trans-Tasman securities offerings, the operation of the Trans-Tasman Mutual Recognition Arrangement, and future coordination initiatives. So the agreement not only deals with current situations in terms of proceedings on both sides of the Tasman but is a good platform for other initiatives taken under the umbrella of the CER and single economic market agenda.
The last thing I will mention is that although I did not sit on the Justice and Electoral Committee that considered the bill, it is clear from the report back from the select committee that it undertook quite detailed analysis of the legislation, picked up some of the issues that the Attorney-General mentioned in his comments in the House, and considerably improved aspects of the bill in order to address concerns raised in submissions. One of the concerns, which had been previously raised by way of public comment on the legislation, was about the proposed recognition and enforcement of regulatory sanctions. They had been identified as potentially the most controversial part of the regime. The argument was that they partially displaced the longstanding rule that domestic courts do not enforce penal as opposed to compensatory laws of foreign States, because to do so is contrary to the principles of independent sovereignty. But given that that is rather a big issue I might leave it to the Committee stage.
CHESTER BORROWS (National—Whanganui) Link to this
The Trans-Tasman Proceedings Bill is a product of the highly efficient Justice and Electoral Committee—a committee that does all its work in good faith and with esprit de corps, apart from the days when we do not get on and give each other a slap. But there have been no toys on the floor or anything else of late.
The bill, a key priority for the National-led Government, will enable New Zealand to work with Australia to create a single economic market to provide a seamless operating environment for business. Enhancing international legal cooperation is also a vital part of this Government’s broader economic reform agenda, reducing the costs of doing business in the international market place. Our wonderful Prime Minister, John Key, emphasised the importance of the single economic market when he outlined the Government’s programme for the year in February, saying that we were giving the single economic market new impetus.
The Trans-Tasman Proceedings Bill reflects the commitment both the New Zealand and Australian Governments have made to enhance the operation of the single economic market. Australia is often the first stop for New Zealand businesses looking to expand into an overseas market, but getting to grips with different federal and state regulations can sometimes be a challenge for us all. The single economic market is about aligning the regulatory environment in New Zealand and Australia so that a New Zealand company can do business in Palmerston, Northern Territory, as easily as it can in Palmerston North, New Zealand. I commend this bill to the House.
CHARLES CHAUVEL (Labour) Link to this
It is a pleasure to rise today to speak on the Trans-Tasman Proceedings Bill and also to have heard what members so far have had to say about this legislation, in particular the Attorney-General on behalf of the Minister of Justice, and my colleague Lianne Dalziel. I mean no disrespect to the chair of the Justice and Electoral Committee, but his was a brief contribution.
I think the praise that the legislation has had from both sides of the House is testament to the hard work started by Helen Clark and Lianne Dalziel in 2003 and the agreement worked on by Lianne Dalziel in 2008, which resulted in the bill that we are debating today. Good on the Government for progressing it! It is an important piece of legislation. It is a shame that it is being progressed under urgency; there is no particular requirement that it should be. None the less, we are where we are.
In 2003, as we heard from Lianne Dalziel, Helen Clark and Australia’s then Prime Minister, John Howard—my, how time flies—signed off on the Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement. That group reported back in 2006. There were a range of recommendations in the report back, such as increasing the use of new video technologies and increasing the types of judgments that can be enforced in both Australia and New Zealand, including civil pecuniary penalties and criminal fines.
As Lianne Dalziel told the House, an agreement reached with Australian legislators in 2008 under her guidance saw this bill drafted. I note with interest that some of the changes in it have been praised by David Goddard QC, one of our leading litigators, as the furthest-reaching proposals between any two sovereign States with separate legal systems. Those in the House who know the barrister whom I have just quoted will know that he has a particular interest in comparative law. If he said that that is the case as far as mutual commercial arrangements are concerned, then there is a very good chance that he is right. So it is interesting to look at the scope of the arrangements that are in contemplation by the House. Achieving a change this significant really is something quite noteworthy. I say that it is as a testament to the work that Lianne Dalziel did when she was a Minister.
It is also worthwhile to look at the work that the Law and Order Committee did. It concluded that the recommendations of Lianne Dalziel’s agreement, as set out in the bill, will make trans-Tasman proceedings simpler and more affordable for businesses and individuals. They will support a successful trade relationship between New Zealand and Australia. They will expand the range of enforceable judgments. Very importantly, they will avoid any incentive for people to move, along with their assets, to one country or the other in order to try to evade the execution or the commencement of legal proceedings in the other jurisdiction. Well, that is the background to how the bill originated.
I will give a brief description of some of the comments that we have had from the select committee, as well as look at some of the changes that have been recommended by it, along with Supplementary Order Paper 160, which the Minister plans to move during the Committee stage. The committee’s changes are largely minor and technical in nature. For example, there is to be a new clause 22(1A) inserted to make sure that a person served in Australia in respect of New Zealand proceedings can apply for a stay of proceedings if the person wants to argue that the matter would be better dealt with, or more conveniently dealt with, in an Australian court. There is clarification of regulation-making powers to provide sufficient rule-making ability so that the courts can ensure that the bill can be implemented properly.
The committee has also recommended that there should be an ambiguity removed. When somebody in New Zealand appears by an audiovisual link in Australian proceedings, Australian law applies to the remote appearance. The committee has also recommended minor tweaks to ensure that the bill is consistent with the relevant Australian legislation relating to contempt of courts and tribunals and to ensure consistency between the purpose of the bill, as set out in its third clause, and that of the agreement between Australia and New Zealand. The Courts (Remote Participation) Act is a recent law. The committee has taken care to recommend that its provisions will not apply to remote appearances made under this bill and that the trans-Tasman evidence regime will operate in parallel with, and not override or be subject to, mutual assistance in criminal matters legislation. Overall, these amendments appear sensible. I think members on this side of the House intend to express their support for them. They are technical changes that largely leave intact the hard work done by the previous Minister of Justice and the previous Labour Government.
The technical amendments that the Minister will move in Supplementary Order Paper 160 at the Committee stage are, again, ones that seem worthy of support because of their technical nature. Clause 26 is to be amended to align its wording with that of clause 24. Clauses 31(2) and (3) are to be omitted by the Supplementary Order Paper because they are unnecessary in a trans-Tasman context and may discourage New Zealand courts from giving interim relief and support of proceedings in Australian courts. Clearly that would not be desirable in the sort of regime that we are trying to set up here. Finally new clause 33A, clauses 39, 40, 54, and schedule 2 are amended to correct errors.
This is a good bill. As I said earlier I am pleased that the present Government is adopting and expediting the good work that was done by Lianne Dalziel as an Associate Minster of Justice. The bill recognises our increasing closeness with Australia, and it eases economic interaction as well as interaction between our justice systems. This is sensible, given the close relationship between our people and given the fact that the legal system that we currently have originated as part of the jurisdiction of New South Wales back in 1840 and has diverged since. In a sense we are correcting some of that divergence through this legislation, hopefully for the benefit of ordinary New Zealand citizens, taxpayers, and business people.
If someone sells their house in New Zealand and moves to Australia and there is a problem with the house or the settlement, later court proceedings will take place in New Zealand. But if a judgment is made and fines imposed, the person in Australia will not simply be able to ignore those with ease under this legislation. Under the new regime proposed in this bill, an Australian court will be able to enforce the judgment made in New Zealand. That is a sensible thing. It is actually a shame that we have not done this before.
The bill is a good step along the way to creating a single economic market. There is much more that we need to do as a Parliament if we are serious about this relationship. Even if David Goddard is right and this is the most ambitious alignment of legal systems between two sovereign States, there is so much more we could do to make business easier between the two countries. I lived and worked in Sydney for a couple of years when I was a partner in my old law firm and I know there were real frustrations that business people and travellers between the Tasman experienced. One cannot get a single mobile phone account or a single bank account. Those are the sorts of things that we absolutely need to correct if we are serious about the single economic market. Members on this side of the House certainly are, and we have a very ambitious set of plans for advancing the agenda. I hope the fact that the Government is advancing this bill indicates that it is similarly ambitious, although I have to say the evidence in respect of that is so far lacking.
This bill does work to make our changing situations in Australia and New Zealand easier for everyone, so I do look forward to hearing further debate on the bill in the Committee stage. I commend the bill to the House.
KEITH LOCKE (Green) Link to this
The Green Party will be supporting the Trans-Tasman Proceedings Bill as a way of improving the trans-Tasman cooperation on civil proceedings and on business proceedings. It builds on some of the existing trans-Tasman legislation. As Charles Chauvel has said, it makes some of the procedures simpler and more affordable. As Charles Chauvel said, it will enable people to choose the most appropriate jurisdiction in certain circumstances—Australian or New Zealand—and expand the range of practical and enforceable judgments. I will be interested to listen to Lianne Dalziel’s comments on the use of penal sanctions across the two countries and who can apply what. It is not a straightforward issue. There are questions of basic sovereignty, as well. There is often a bit of conflict between the sovereignty issues and practical issues in order for us to conduct trans-Tasman business in the best possible way and avoid people escaping civil jurisdiction by running across the Tasman in either direction.
There is a lot going for this bill, but, that being said, there is another side to it that Kennedy Graham referred to in his first reading speech. There can be upsides and downsides in the single economic market, as has been referred to by previous speakers. It can work two ways. As Charles Chauvel said, if there are similar jurisdictions on both sides of the Tasman, then people will not necessarily lift their assets from one country and take them to the other country, thus disrupting the economies of one or both countries.
But, on the other hand, what we have seen with the development of the single economic market is, in some ways, a greater domination of New Zealand by the Australian banks and the Australian-owned supermarkets. Many head offices disappear to Sydney or Melbourne, and more and more the Auckland, Wellington, and Christchurch offices become branch offices of trans-Tasman companies. That has its upsides but there can be downsides. Sometimes the Australian-owned supermarkets that are part of a trans-Tasman operation will source from Australian producers and leave the New Zealand producers aside, not because the New Zealand producers are necessarily less efficient, but because of economies of scale they deal with just Australian producers for their supermarkets on both sides of the Tasman.
There are problems like that, and we have had problems linking up other regulations in relation to food standards and therapeutic products, which are still a matter of ongoing dispute between Australia and New Zealand. Often we have somewhat different interests, so we have to be a bit careful, when we adopt common procedures, that we do not do so in a way that disadvantages New Zealand as the smaller player.
When we talk about a single economic market it can mean various levels of integration, and we have to be careful that we do not just slip into a common currency or a common Reserve Bank, which in some ways is a logical consequence of a single economic market. When we get down to that level we are getting into problems of economic sovereignty and problems of different dynamics operating in the economies between the two countries. The Australian economy is governed particularly by the cycles of prices for minerals—the stuff they get out of the ground—whereas the New Zealand economy is, to a significant extent, governed by the prices we get for our dairy products. Those cycles may not synchronise exactly, and we have seen the problems Europe has. I am not necessarily against the euro, but we can see that certain problems have developed with the application of the euro in Europe with different dynamics in relation to interest rates and the operation of the euro, which have meant that what is happening to the euro might suit Germany but may not necessarily suit Greece. That is a problem with a common currency before one goes to some greater political or economic unification.
As we make these changes to improve our relations across the Tasman and our trans-Tasman coordination of law we have to look at whether we are giving up too much sovereignty. Of course, in some trans-Tasman areas we have been successful. We now have sporting teams competing in virtually every Australian sport, from netball to rugby, to rugby league, to soccer; you name it, we are in an Australian competition. New Zealand teams such as the local team here in Wellington, the Phoenix, are doing quite well in those competitions. The Warriors might get in the top eight in the NRL and perhaps go further. There is a lot of trans-Tasman activity that is very useful. I can see from looking at other MPs that they are very intrigued by this ending to my speech, but I indicate that the Green Party will be supporting this bill.
SIMON BRIDGES (National—Tauranga) Link to this
The Trans-Tasman Proceedings Bill is part of a much broader picture. We have very, very close relations with our Australian cousins.
This morning on television, and it might also have been in the newspaper, there was some navel gazing about whether Tony Abbott or Julia Gillard would be better for our country and our economic relationships. Well, that just shows insecurity, because the reality is that we have a very close relationship at all levels.
To answer David Parker’s interjection, we stand to benefit the better Australia does, and vice versa, because we are so close. In recent times we have economically become ever-closer in terms of the movement of peoples and the interaction of peoples, and in terms of assets and services. Charles Chauvel talked about the ever-increasing number of property deals, purchases, and so on that go on across the Tasman, not to mention matrimonial issues and the like. That is really where this bill comes into play. It is about making sure that the court processes in each country, as we work together, keep up with those ever-increasing relationships and interactions. Australia, of course, will be passing a near-identical bill to this one, so that our two court systems, as far as this bill goes, will be in sync.
I will quickly read from the bill’s explanatory note: “The objectives of the Agreement are to streamline and simplify the process for resolving civil proceedings with a trans-Tasman element to reduce costs and improve efficiency; and minimise existing impediments to enforcing certain judgments and regulatory sanctions.” For example, the issuing of proceedings, the enforceability of judgments and the like will be streamlined—made better—between the two countries.
This bill is an important step towards closer integration between the justice systems of Australia and New Zealand, and it is another marker of a very close, very secure relationship between our nations.
Hon DAVID PARKER (Labour) Link to this
As Lianne Dalziel and Charles Chauvel have both said, Labour will be supporting the Trans-Tasman Proceedings Bill at this reading, as we did in the earlier reading. Just following on from the previous speaker, Simon Bridges, in respect of how close things have become between New Zealand and Australia, I say there is, of course, a notable exception to that, which relates to the ever-increasing wage gap between New Zealand and Australia. Important though this bill is in making court proceedings easier in each country, it is not as important as closing that wage gap.
Of course, at the last election National promised that it would close the wage gap with Australia. But the problem is that it said it would do that by 2025, and we cannot get any particularity from the Government as to an intermediate milestone. We might say that that does not matter very much, because as long as we are going in the right direction, we will get there eventually. But the reality is that we are not going in the right direction, and the wage gap is growing ever wider. Unfortunately, the National Government does not understand that, because it had Gerry Brownlee in the House trying to palaver that the gap was growing narrower, and John Key was doing the same thing, only to be called “slippery” by TV3. It is a terrible thing when our Prime Minister so misrepresents statistics that he is called “slippery”.
This bill will not make a difference to the gap between wages in Australia and New Zealand—
Well, they might let Gerry Brownlee speak on this bill, but they have not let him answer questions on the more important issue about what is happening to that wage gap. The National members have not given us any milestone that New Zealanders can judge their performance against between now and 2025, and we all know that 2025 is a decade and a half away. Most of the National people who are currently here will be superannuitants by that time, unless of course they change the qualifying age for superannuation by that time.
The Trans-Tasman Proceedings Bill, which simplifies—
Look, sartorial elegance is obviously something that would be new to Tauranga, but we celebrate it on this side of the Chamber occasionally.
This bill essentially makes it easier to carry out civil proceedings in Australia or New Zealand. A number of changes are made. For example, we are making it easier to serve documents in Australia in respect of a proceeding that has been initiated in New Zealand, and the quid pro quo for that is that if a civil proceeding is appropriately commenced in Australia, we are making it easier to serve those documents in New Zealand on New Zealand - based parties to that litigation. Equivalent provisions are in the comparable legislation that is being passed in Australia. In addition to that, provisions in the legislation on both sides of the Tasman say that if a proceeding is inappropriately started in one country, then a stay of proceedings can be applied for in that country while the people involved go to the other country and initiate proceedings there. That guards against people picking what might be the most convenient jurisdiction for them in which to start their proceedings. It might be convenient for them, but it might be inappropriate in the context of the case. So a party can then go to the court, seek a stay of proceedings—
Hon Tau HenareCutler, a good brand. Let us return to the more important issue, which is when we are to get some milestones from the Government on which it can be held accountable for real progress in closing the gap with Australian wages. That was the foundation principle on which National fought the last election. The National members told New Zealanders that they should be jealous of the position of Australians, and that they would fix that problem. They said they would fix it by closing the wage gap, but it is now going in the opposite direction. We have asked National time and again for milestones, but it has declined to provide them. The latest two iterations of economic policy that we have seen from National were dated 1 August this year and the one that predated it, a February iteration of the same document. There was no reference to this bill in either of them, because of course it is peripheral only to economic performance. But in the February document the Government said it would cause a step change in the economy. It was going to open up further areas, like schedule 4 areas, for mining, and it was going to have a financial services hub. None of those plans—
David GarrettI raise a point of order, Mr Speaker. I am not entirely comfortable with raising this point, but it is the second time I have done so regarding the Opposition. David Parker appears to be dressed in some kind of safari jacket. I notice that the Standing Orders require members to wear business attire. I personally would welcome a ruling that did not require us to wear these silly things around our necks. But I invite you, Mr Deputy Speaker, to make a ruling on what is appropriate. I certainly do not see that what Mr Parker is wearing right now is business attire.
Mr DEPUTY SPEAKER Link to this
Order! [ Interruption] A point of order is being considered. I thank the member for that. In terms of wearing ties, our Standing Orders require business attire to be worn, and that is what we have to comply with. That is the standard set in this House. In terms of the jacket that the Hon David Parker is wearing, in my view that fills the bill as business attire. I am quite comfortable with his wearing that jacket. That is acceptable.
Thank you, Mr Deputy Speaker—a man of discerning taste, unlike the member for Tauranga.
The bill makes a very small contribution to the efficiency of the New Zealand and Australian economies. It will help the New Zealand economy to catch up with Australia’s by a very, very small amount, but no meaningful step has been taken by this Government in terms of bridging that gap. Indeed, the New Zealand Herald has stated, in respect of the Government’s economic policy, that it has not done much more than some “tinkering with the Resource Management Act and suchlike.” Those were the words, I think—“tinkering with the Resource Management Act and suchlike.” It also said that if small steps are taken, then only small progress is made and things can go backwards. That is what is happening under this Government. The economic performance of this country relative to that of Australia is worsening. The wage gap is getting bigger. This bill will not be the answer, because it does not have much of an effect on the economic performance of New Zealand. Although the bill is a good one, it goes to issues of legal process rather than to the economic performance of this country.
I hope that subsequent speakers from National will get up and tell the country what milestones those members are willing to set that would allow them to be judged on whether they are achieving the step change in the economy that they promised everyone even as recently as February this year that they would achieve—but the phrase “step change” has dropped out of their current rhetoric—and tell us what they are doing to bridge the wage gap with Australia. I am afraid that I am not willing to wait until 2025 to judge whether they are succeeding in delivering on that promise, and I do not think that most New Zealanders are, either.
The other changes made in the select committee in respect of this legislation were largely technical. We approached the Australian legislature to see whether we could have the wording of some of its legislation changed, as well. As a consequence, there is a better alignment of both bills on each side of the Tasman. I commend this bill to the House.
KANWALJIT SINGH BAKSHI (National) Link to this
I am pleased to take a call on the Trans-Tasman Proceedings Bill, which focuses on New Zealand’s very special relationship with Australia. With Australia being our biggest trade partner, it is very important for us to build cordial relations with that country. The bill will confirm the strong relationship between our two countries. This bill will ensure that disputes can be resolved through a cheaper, faster, and more efficient process.
The National-led Government, under the able leadership of the Rt Hon John Key, is working hard with Australia to create a single economic market that will provide a seamless operating environment for businesses and individuals. New Zealand and Australia have mutual interests in the efficient working of each other’s regulatory regimes, particularly those that move towards our having a single economy. This bill will make it easier to resolve civil disputes between parties with connections on both sides of the Tasman. It will benefit both individuals and businesses. Just as with earlier bills, it will allow court appearances by audiovisual link, and it will also allow for better enforcement of the regulatory regime.
I join with others in commending this bill to the House on its second reading.
RAYMOND HUO (Labour) Link to this
I will follow the Leader of the House’s spirit and say: “Let’s dig it up.”
Let us dig it up. The Trans-Tasman Proceedings Bill, together with the equivalent Australian legislation, will integrate the New Zealand and Australian civil justice systems and simplify the resolution of legal disputes with a trans-Tasman aspect. The bill simplifies the trans-Tasman service of court proceedings and the enforcement of judgments. It expands the range of enforceable judgments and improves regulatory enforcement of civil pecuniary penalties and certain criminal regulatory fines.
The Hon Lianne Dalziel, when signing the treaty in July 2008 on which this bill is based, called it “an unprecedented level of cooperation between Australia and New Zealand in civil court proceedings.” Indeed, without those initiatives, the civil pecuniary penalties that are imposed on one country are not enforceable on the other. Nor are criminal fines imposed in one country enforceable in the other, due to obvious sovereignty concerns. Interim relief such as freezing assets can be obtained in one country in support of proceedings in the other.
This bill results from a work programme started by the Rt Hon Helen Clark in 2003. The Trans-Tasman Working Group on Court Proceedings and Regulatory Enforcement was established to examine the relevant issues. It recommended that a simpler, more efficient trans-Tasman regime would significantly benefit both countries. As a result, both the Trans-Tasman Proceedings Bill and the Australian Trans-Tasman Proceedings Bill were introduced in November 2009. The measures introduced were to enhance the efficiency and efficacy of commercial litigation in respect of parties, services of proceedings, witnesses, assets, and events concerning both jurisdictions. The regime is modelled on Australian law, namely the Commonwealth Service and Execution of Process Act 1992, which regulates legal proceedings between Australian states and territories.
There has been a significant increase in the movement of people, assets, and services between New Zealand and Australia. Consequently, there is naturally an increasing number of disputes involving individuals or businesses with cross-border elements. In the year to June 2010 nearly 1.2 million Australians visited New Zealand, and the number of New Zealanders who visited Australia was well in excess of that. Australia has remained our largest trading partner.
The main features of the bill are reflected in five aspects. Firstly, the bill allows initiating documents to be served in Australia in the same form as is required in New Zealand. Therefore, service of civil proceedings between trans-Tasman parties is more efficient under the bill. However, a party served in Australia will be able to make an application to stay the New Zealand proceedings if the party considers it more appropriate for an Australian court to hear the dispute. It is proposed that New Zealand and Australian courts apply a common test when considering whether they have jurisdiction to hear a dispute.
Secondly, the bill encourages greater use of video and audio facilities, allowing parties and counsel to appear remotely in proceedings with the leave of the court. Thirdly, the bill enables parties to seek interim relief from a New Zealand court in support of an Australian proceeding with the leave of the court. Fourthly, trans-Tasman subpoenas will be able to be issued by judges of lower courts, and similar subpoenas may be issued for some tribunals by the District Court. Subpoenas in criminal proceedings will also be able to be served with the leave of the court.
Lastly—and this is perhaps the most important feature of the bill—a broader range of Australian judgments are able to be enforced in New Zealand if registered in a New Zealand court. Currently, final money judgments are enforceable. This bill will extend the coverage to include final non-money judgments. The provision will only be applicable where the Australian judgment is final and conclusive. Some types of Australian judgment will not be enforceable—for example, if the judgment involves a civil pecuniary penalty, if it is an order under the proceeds of crime legislation, or if it relates to a guardianship or property protection order. In a similar vein, the regime will also make it easier for Australian parties to commence proceedings against New Zealand parties in Australia, and allow Australian parties to enforce a large range of Australian judgments against New Zealand parties.
An interesting point is worth noting. Chapman Tripp lawyers questioned, in their witty opinion, the wisdom of the difference between the two approaches. Under the bill, sanctions framed as civil pecuniary penalties will be directly enforceable unless specifically excluded by Order in Council—namely, a negative list approach. Sanctions framed as regulatory regime criminal fines will be directly enforceable only if declared to be so by Order in Council—namely, a positive-list approach. “The net effect”—according to Mr Daniel Kalderimis—“is that regulatory regimes based around civil penalties will achieve instant cross-border reach unless expressly excluded, whereas regulatory regimes based around criminal penalties will retain a domestic ambit unless expressly included.” Mr Kalderimis concludes by stating: “It is not obvious that this difference in treatment is warranted … civil penalties are penalties nonetheless, and in many commercial cases the distinction between civil and criminal penalties may be little more than nomenclature.” He cites, as an example, the fact that a fine under section 40 of the Fair Trading Act 1986 is a criminal penalty, but a fine under section 80 of the Commerce Act 1986 is a civil penalty.
To conclude, this bill seeks to streamline the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs, improve efficiency, and minimise existing impediments to enforcing certain judgments and regulatory sanctions. I commend the bill to the House.