Electoral (Vacancies) Amendment Bill

I move, That the Electoral (Vacancies) Amendment Bill be now read a second time. I take the opportunity to remind the House of the principle behind this bill. It is quite sound. This bill suspends the operation of section 55(1)(b) and (c) for this Parliament. It does so because those provisions have inappropriate consequences.

I want to take up the point that has been raised by the National Party on a number of occasions, and that is why the bill is restricted to this Parliament. There is a very good reason for that. I said in my first reading speech that I will be writing to the Justice and Electoral Committee to raise this issue with it, and to invite it to report back to Parliament, as it will do, on the electoral law as it applied to the last election. It is customary in this House to have a bill, after each election and before the next, to tidy up any areas in which there are deficiencies or imperfections. This matter will be one of them.

The law as it stands does have some unusual consequences. It is extraordinary that someone can come to this House holding dual citizenship, and can renounce his or her New Zealand citizenship with no effect, but, on the other hand, a person who is entitled by law and by birth to dual citizenship who comes to this House as a New Zealand citizen, but who signs some paperwork to confirm his or her entitlement to citizenship of another country, then has to resign. I do not think anybody would say that is a sensible thing.

Some speakers, and others outside the House, have commented that the actions of Mr Duynhoven were unlawful, but his actions were not unlawful at all. They were no more unlawful than someone signing a letter of resignation.

This bill properly confers entitlements on all members of this forty-seventh Parliament. It will not go beyond that because, prior to this Parliament coming to an end, this Parliament will hear a report from the Justice and Electoral Committee and will debate the law properly.

It has been widely accepted in this country that people can have dual citizenship. There has never been any doubt about that, and, personally, I think it is a good thing. It is not to be confused with the situation of Mr Duynhoven taking out what is his by right of birth and by the retrospective action of Dutch law. I commend the bill to the House for its second reading.

The National Party is opposed to this legislation for two reasons. One, the law itself is clear, and, two, the principle of retrospective legislation is fundamentally wrong in this instance. I will firstly deal with the issues of law that came up, in part, through the point of order but also, obviously in a more general sense, through the Privileges Committee. It is about the application of section 55. I find it extraordinary that we can have the Solicitor-General and the Clerk of the House saying the law is clear and unambiguous, and we can have that consented and agreed to by the majority of the Privileges Committee, but who dissents? It is all the Labour members.

I will single out a particular individual for saying that the law was ambiguous, and that is the Attorney-General. She is a former professor of law. Her chief adviser is the Solicitor-General. Is she now saying to the country that she does not have confidence in—there really can be no other interpretation—her chief legal adviser? The Solicitor-General, after all, said that the law was unambiguous, and that the seat is vacant. We have yet to hear the Attorney-General speak in this Parliament on this matter. When the Attorney-General concludes, against the advice of the Clerk and the Solicitor-General, that the law is in fact ambiguous and uncertain, and therefore the seat is vacant, at the very least one would expect the Attorney-General to be participating in the debate. How can the country have confidence in the judgments of the Attorney-General when she disbelieves categorically the views of her chief legal adviser?

Section 55 is clear. The situation that Government members have raised, about dual nationality and so forth, is irrelevant. There is a different set of rules relating to members of Parliament. Those people in our community who seek to represent the nation and to pass laws have additional duties placed upon them, and that is right and proper because we are making laws for New Zealanders. Parliamentarians and Cabinet Ministers, of which Mr Duynhoven is one—or, at least, was one—make public policy for this nation. That is why there is a higher burden on us than there is on general members of the public. We are all here voluntarily. None of us had to come here. We chose to do so because of our views on what we think is right for our country. It is therefore proper that we should have one loyalty, and one alone.

I will now turn to the application of section 129, and the role of the Speaker. I know, Mr Speaker, that you are going to reconsider that properly, but I ask for your consideration on this—and I am sure you will be taking advice from the Clerk. The Privileges Committee, by majority, said that the seat became vacant on 11 June, so the question then becomes whether Mr Duynhoven is a member of Parliament now, or whether his actions as at 11 June created a vacancy at that point in time. The question then becomes how does section 129 apply: is it the Speaker making a decision, or is it the Speaker implementing the reality of the vacancy, which in fact occurred on 11 June 2003, as reported in page 13 of the Privileges Committee report? That is an important issue, and I know that the Speaker will be considering it seriously. If the situation is that the Speaker is simply making a declaratory act based on the Privileges Committee report, then the seat is already vacant, and Mr Duynhoven is no longer a member of Parliament.

I guess that, in some respects, was almost recognised by the Government in the last vote, when the Government did not cast a vote for Mr Duynhoven. It recognised the risk of Mr Duynhoven even casting a vote, because he may not actually be a member of Parliament at all. He is not sitting in the House. We heard him say on television that he should not be here. Again, that raises the presupposition that he is no longer a member of Parliament.

This matter then turns to the role of retrospective legislation. As a matter of constitutional law, this Parliament is supreme. It seems to me that what the Government is doing right now is actually saying that a person who is no longer a member of Parliament can be a member of Parliament—that Parliament itself, by a statute, is effectively electing a member of Parliament. Maybe that is what the Government should be doing, though most people would recognise it as a constitutional travesty. Although Parliament conceivably does have that power, surely we should not go around passing laws that say: “Joe Bloggs, who is not a member of Parliament, is now a member of Parliament.” Obviously, when put like that, it sounds like the absurdity it is, but it seems to me that is precisely what Parliament is seeking to do in this situation.

That is why National is so insistent on the by-election. We heard the absurd situations raised by Mr Donald about why a by-election was a bad idea, and they were all about the electoral result. They had nothing to do with principles or the law itself. We had the same situation from the Government, which should know better than to say: “Well, Harry will win, anyway. Why put people to the bother?”. In that case, why even have elections at all? Why not just go by opinion polls? Whenever the opinion polls changed we would just change the Government. It is self-evident that that is an absurd proposition. The decision as to who belongs in this Parliament and who does not belongs to the people, and all of us have to take the consequences of that decision on board, irrespective of the outcome.

It might well be that Mr Duynhoven, standing again—and no one has suggested that he cannot stand again—would be re-elected. Would I be amazed and surprised if that was the outcome? I suspect not. Would his majority go up? Who knows? Would it go down? Quite probably. That is irrelevant; it is completely beside the point. There is a proper procedure here, and that is a by-election. Is it an extraordinary event? No. Has this country had by-elections before?

💬 Shane Ardern: Yes.

I see Mr Ardern nodding his head. Yes, the country has had by-elections before. It is a reasonable thing to do. When a situation arises in Australia, that is always the result. No one in Australia would even conceive of putting legislation into the House to declare a person who is no longer a member of Parliament to be a member of Parliament. The result is clear, unambiguous, and obvious: there is a by-election, and the results of that by-election are whatever they are. That is how a democracy works.

So when you, Mr Speaker, take the advice of the Clerk and consider the application of section 129, it is obvious what the result should be: the seat is vacant, there should be a by-election, and the consequences of that are whatever they are. That is how a democracy works. Nothing could be plainer than that.

I am pleased to rise briefly in support of this legislation. I find it astonishing, as will most of the listeners in this country, to have heard the sanctimonious, self-serving claptrap we have heard from the Opposition this morning. I cannot help but think that the National Party and ACT party are the parties that, in the case of ACT, have Donna Awatere Huata, the imaginary member, for the sake of the money she generates for the party’s funding, and, in the case of the National Party, have Maurice Williams, the man whom it suspends but whose vote it continues to cast. So those parties should not talk to us about smell. They should have a look in their own rubbish tins before standing up and embarrassing and disgracing themselves with that nonsense.

It is hard to believe that someone with some brief experience in local government, who has now been in the House for a few years, could get up and make such an appallingly hopeless, incompetent, unfocused speech, then sit down and think he has done his duty by his taxpayers, by the people who elected him, and, might I say, by his party. That was a disgraceful intervention by that member, David Benson-Pope, and he should be thoroughly ashamed of himself. Could he address this most fundamental issue: why is the Labour Party not prepared to say that all its members, with the exception of Harry Duynhoven, are not in breach of section 51 of the Electoral Act? [Interruption] Of course the member, as the senior whip for the Labour Party, has had the opportunity. He has had the opportunity for the last 4 weeks, ever since this subject was known. He has had the opportunity for the last 48 hours, ever since some of his colleagues would have informed him of the outcome of the Privilege Committee’s deliberations.

For here is the real point: a majority of the Privileges Committee of this House finds that, inadvertently or otherwise, Harry Duynhoven breached section 51 of the Act. That means—if those members of the select committee were reflecting the position that their colleagues would take in the House—that a majority of this House now finds Mr Duynhoven in breach of the Electoral Act. That being the case, of course, and if that is the way the vote is cast, the Speaker is put in a very difficult position at that point in time, because he will have heard the House and he will have heard the select committee.

I think it is entirely appropriate that this matter went to the select committee, because it meant we were able to hear evidence from a range of submitters, including Mr Duynhoven’s counsel, the Solicitor-General, and also the Clerk of the House. In fact, I believed at the time that the defence put up by Geoffrey Palmer was simply likely never to succeed, because it minimised the importance of electoral law and the choice of a Government in any democracy, particularly a democracy with a British constitutional background.

What was amazing was this: on the select committee we had some lawyers—well, legally trained people—like the former Dean of the University of Waikato School of Law, Margaret Wilson. One has to wonder how someone with that supposedly expert background in academia, or so they say, could find that the law was unclear and ambiguous. The Solicitor-General did not see it that way.

💬 Dr Wayne Mapp: Chief legal adviser.

Yes, the chief legal adviser. The Clerk of the House did not see it that way. In fact, if we read very carefully Geoffrey Palmer’s submissions, we see he knew it was not going to be seen that way, and that is why he had secondary pleadings all lined up to throw his client upon the mercy of his colleagues in this House. So how on earth could the Attorney-General, a former Dean of the University of Waikato School of Law, find that the law was unclear and ambiguous? And that tells us volumes, because the Waikato law school is all about Treaty of Waitangi stuff. It is not about law; it is about touchy-touchy, feely-feely Treaty of Waitangi stuff, so any issue of great constitutional moment is not likely to be carefully entertained by that faculty. That is the reason so many of its students in their last year shoot through to the law faculties in Auckland, Wellington, or Dunedin, to get a respectable closing part of their degree.

But I come back to my point. Lianne Dalziel, the Minister of Immigration, is also someone with legal training, we are told, and a staunch advocate of trade union laws. She also found the law—surprise, surprise—ambiguous and not clear.

💬 Dr Wayne Mapp: She’s a lawyer?

She is a lawyer.

💬 Hon Murray McCully: They found in unison.

It was sort of like pure intellectual serendipity. There was no combination, or covert, behind-the-scenes collusion, on how they might make up their minds; they just found in unison alongside Dr Cullen. We can forgive Dr Cullen, because, after all, he is a historian, and the big picture is what historians are interested in, not the finite detail or the humdrum of the ordinary existence of normal human beings like us. They are interested in the grand, huge picture and in the end justifying the means; that is what left-wing historians are all about. I can forgive Dr Cullen because of his propensity to come to that sort of conclusion, but it is very hard to forgive two so-called lawyers, unless, of course, one makes the usual compensation for where they last practised their trade.

That said, let me make this point very clear: we in New Zealand First are extraordinarily disappointed about this issue, because we do think that Harry Duynhoven, though he broke the law, did not breach the spirit of the law, and that in all the circumstances, as so often exercised in British and New Zealand justice, a way can be found around his paying the price for such a mistake. It is not a matter of protecting one of our own but of doing the right and fair thing. It is easier to do justice, in some ways—and this is what I would say to the National Party—but often the greater calling in Parliament is to do what is right, and in Harry Duynhoven’s case we in New Zealand First believe he should not suffer the ultimate punishment of losing his salary from 11 June, of losing his superannuation benefits.

And the effects are extraordinarily serious. Have members fought a by-election? Let me tell members, as someone who knows this personally, that if he was put to a by-election he would lose his benefits. He would come back having lost the same career opportunities as others who came in with him. I personally know that that stinks and is unfair, but as a matter of principle it had to be done. In Harry Duynhoven’s case it is just not right when we can avoid it, and I am prepared to defend that in front of any taxpayers all around this country. They are often not aware of the facts when they come to their talkback-show decisions.

But, my having said that, our commitment was to a person who owned up, whom we believed was telling the truth, and who had been through a significant agonising period whilst trying to wrestle with this present problem. We never made a commitment to have a blanket suspension of this important part of our law for the whole term. We are not going back on our word, but, sadly, this Government, a minority Government as it is, will not accept our amendment that the change be confined to Harry Duynhoven alone, and that its ambit cease the day after it is applied to him so that his situation is dealt with. In that circumstance, we have to oppose this legislation.

We ask at the end of our contribution to the second reading this very simple question: why can the Labour Party not face up to the fact that it is the only party not prepared to place its cards on the table? Who is the member or members it is trying to shield here now? Government members are abusing Harry Duynhoven as much as anyone else is. They have misused their colleague, they have misused his background, and they have misused his record of integrity, for their own deceitful ends. It is despicable. [Interruption] David Benson-Pope had a chance to make a full speech, but he could not. Even he could not defend his actions, and he seeks to make a speech now by way of intervention. Who are the people—is it the man from Christchurch?

💬 Dr Wayne Mapp: Which man?

Tim Barnett—is he the one who is carrying two or three passports?

💬 Hon Richard Prebble: Is it the Prime Minister?

Is it the Prime Minister? Is it Mr Goff? It has to be someone, because why would a political party in such a precarious situation, where Harry Duynhoven is concerned, go to these extraordinary lengths to offend the rest of the House and Parliament, and our constitution, were it not that there was something very serious not known to us, and that its members cannot have known because they will be embarrassed? Why do they not come clean?

💬 Dail Jones: Is it a list MP?

Is it a list MP?

💬 David Benson-Pope: It’s a conspiracy!

Oh, Mr Benson-Pope, a conspiracy—yes, it is a conspiracy. Why do we need a blanket suspension?

I think it is important in this debate, which members have quite rightly said is an important debate in this House, to remind ourselves that it is not just about a parliamentary colleague, Harry Duynhoven. Certainly the events that surrounded Mr Duynhoven have been what has triggered us as members of this House, and specifically also the Speaker, to look at the precise effect of section 55(1)(c) of the Electoral Act, which is the subject of the bill that is before us. As one of the preceding speakers noted, when the Privileges Committee came to look at this matter it became, in effect, a matter of statutory interpretation as to the approach that would be taken on the basis of the facts that were presented before us. Those facts were that a member had reactivated what he thought was already his—that is, his Dutch nationality by birth. It was the act of filling out a form that was considered, by the majority and by the Solicitor-General, to bring him within the context of this legislation.

Some of us who have been looking at and teaching statutory interpretation, and who have made reference to the Legislation Advisory Committee’s report on the preferred approach to how one should interpret legislation, point out the importance of always looking at a single section, and particularly a part of a section, within the context of the overall intention and purpose of that particular part, as well as of the legislation in its totality. That was the basis upon which I approached this matter. It became apparent from the discussion in the committee that an event that could trigger that section, or that could be considered to be an act for the purposes of that section, could be merely making an inquiry—in the street, maybe—as to whether citizenship was a possibility, or having a conversation with someone in authority from the embassy of another country and saying that one may wish to pursue one’s right to a passport or to dual citizenship. That seemed to me to verge upon the ludicrous. That matter was raised by the honourable member Mr Prebble. Others thought—including the Clerk—that that would be a long bow to draw.

The point to be made, however, is that all those points had to be considered in the context of the purpose of the legislation. That was the basis upon which I believed and came to the judgment that if members looked at the total context, and did not take a strict interpretation—which members are not required to do in this legislation—then to argue that there was ambiguity in this particular factual situation when section 55 was applied to it was a valid, if somewhat courageous, position to take in the face of political prejudice.

What then emerged, of course, when we heard the testimony was that we were dealing with a situation that had absolutely no malice or ill will in it, at all. An individual had committed an act, for the purposes of this legislation, of the sort that any number of members could have committed, and probably did commit, in the past, and probably could have committed in the future if this event had not triggered debate about the issue. The event that was at risk here was, of course, the question of dual nationality. There is nothing unlawful or wrong about New Zealand citizens holding joint nationality. In fact, many of my profession have argued for it, because they were prevented on occasion from being able to practice in law because that sort of rather narrow interpretation was given.

There is a legitimate debate to be had on whether, in order to be able to be a New Zealand citizen, one can be only a New Zealand citizen and cannot hold dual nationality. In this age of globalisation, many countries have been reconsidering their approach to that. As we have heard, Australia, which is perhaps among the more chauvinistic of countries, has now decided to acknowledge that there can be dual nationality. It seemed to me that the event we were talking about, and the facts and the circumstances that arose from it, were those where an entirely innocent mistake was made, if one wants to put it like that—I do not even call it a mistake, but an event—to pursue what is a legitimate right in any other context except for the very narrow one of section 55 of the Act. In that context, then, we had to go on and consider, given that the majority of the committee had held that, yes, there was a technical breach of the Act—and I think everyone acknowledged that it was technical in that sense—the appropriate response. There was a division of opinion as to that.

We have heard much in this House about members being above the law and making laws for their own purpose, etc. I think it is important to remind the House that in other circumstances when a citizen breaches the law, the matter would not normally come to this Parliament but would go to the courts. In much the same way, this debate is, in effect, the equivalent of a court, in terms of determining the appropriate remedy in this particular situation. We all know that when citizens have broken the law, particularly when they have done so inadvertently, if they come forward, declare that there has been an error, and hide nothing, the court does not award the maximum penalty in those circumstances. Yet that, in effect, is what the Opposition is arguing for in the case of Mr Duynhoven.

This is essentially a technical breach, without ill will. When someone comes forward, owns up, and subjects himself to the judgment of the appropriate peers here, in much the same way as one does in court proceedings, then I think it is entirely appropriate to say that, no, the maximum penalty will not be awarded in those circumstances—the vacating of the seat—but it is appropriate that Parliament takes upon itself the responsibility to try to redress the anomaly that has been exposed in the legislation.

There has also been some discussion as to why the amendment is drafted to include the whole period of this Parliament. For me, the Opposition has presented an influential argument on that. I think there would have been some merit in taking the amendment just up to the present date, but we have the publicly declared position of a member of this House holding an honorary consulship. We have heard that nothing in the mere holding of that appointment would offend against section 55 of the Act. That member has not had Mr Duynhoven’s courage and has not subjected himself to the judgment of this House. So we have not heard whether he is in breach of that provision not by the mere holding of that appointment, but, as one sees if one goes on to read the provision, in terms of whether he does anything in that relationship that could be seen to offend against that provision. I, for one, will be seeking for that member, if we do not pass the amendment set out in this bill for the whole of this Parliament, to bring himself before the judgment of the Privileges Committee, so that we can look to see precisely the full nature of what he does and how he does it.

It seems to me it is only fair, if there is to be one form of citizenship, for everyone to put himself or herself within the possibility and the scope of it. The issue may appear to be simple on the surface, but I have no doubt that in the action—in the day-to-day working within that role—one could make a case that allegiance is being given to another country. We should have the opportunity to debate that in this House, and we should not see it hidden away. We are told we have to accept the word of the Opposition on that issue. We are told things are all right, and we must accept that. Certainly not! We have to have one standard for everyone, and everyone should subject himself or herself to it. The Government can see the nonsense of the Opposition’s position in terms of bringing this House into disrepute, which is why we have recommended that we address the fundamental issue.

Section 55 of the Act is a nonsense. It is a stupid provision, and we have to ensure it is made right. In order that in the future this House is not brought into disrepute by the speeches that we have been subjected to in defence or in support of this particular bill, we must go the heart of the matter and cure what is wrong in the legislation, and we must do so in the interests of all members of this House.

In Britain the Attorney-General is not a member of the Cabinet, in order to make sure that he or she does not give party partisan advice. After listening to that contribution made by the Hon Margaret Wilson I think we ought to look at that, too. We have a bill to, in effect, elect a member of Parliament. It is a change to our constitution. We heard an extraordinarily partisan speech from the Attorney-General. Either she believes what she said, in which case the courts in New Zealand have a terrible Attorney-General, or, worse still, she does not believe it. I think that she does not believe it, because she had a go about honorary consulship.

Margaret Wilson voted for a section of the Privileges Committee’s report that stated that section 55 of the Act is not triggered by “appointment as an honorary consul or the acceptance of a foreign award or honour, nor to owing a ‘local allegiance’ which arises by virtue of temporarily residing in a foreign country.” She voted for that, and then she decided to make a cheap political point—not one that an Attorney-General should make, and certainly not with regard to a section as serious as that one. This bill is damaging a lot of reputations. It is damaging Parliament’s reputation, because for the first time ever we have decided to elect a member, rather than leaving that to the people of this country.

I want to address some remarks to Mr Duynhoven, and I hope he is listening to this debate. I have known him for a long time, and I do not think I have ever given him—consciously, anyway—bad advice. I believe that he has been given some appalling advice. This process is shredding his reputation. Mr Duynhoven is very proud of the fact that he has a majority of 14,000, or something like that. He is the highest of the high. I have had the position of having the biggest majority in Parliament. As MPs, we all know that it is a great feeling. Mr Duynhoven is proud of his majority, and he worked hard to get it. Yet by tonight he will have a majority of 21. He will be able to name every one of them. Some of the people whom he would not cross the road to support will put him in Parliament. He will have a majority of 21; he will be the lowest of the low.

That is Harry Duynhoven’s choice. He does not have to do that. The correct advice, in terms of the Westminster system, to have given to him was that he should resign. Harry Duynhoven can still do that. He can save his reputation by going from wherever he is and handing in his resignation. Why should he do that? We are told by his colleagues that if he puts his case in front of the people of New Plymouth he would be re-elected, and I think that if he trusted them he would be, too. He would be able to walk back into this House after being elected by the people of New Plymouth, rather than after being elected by MPs. Mr Duynhoven should ask himself whether he really wants to be elected by members of Parliament. That is the advice he should have received from everyone. The Lord only knows why he decided to go to see Sir Geoffrey Palmer for advice. If he had gone to see David Caygill, he would have said the seat was vacant and the honourable course of action was to resign. But instead, Mr Duynhoven went to see Sir Geoffrey Palmer.

I say to Sir Geoffrey Palmer that it is a matter of great shame that a former Prime Minister of New Zealand seems to think that the worst aspects of Washington lobbying firms and law firms are what he wants to spend his time engaged in. No doubt he is happy with his Mercedes-Benz. However, Sir Geoffrey Palmer should be more concerned about his reputation. The committee was shocked by the representations made to it. If members would like to read the section of the report on the de minimis non curat lex principle, they will see we decided to strengthen it when we rejected those representations, by stating we “unanimously rejected” Sir Geoffrey Palmer’s advice. I do not believe any member of the committee thought that Sir Geoffrey Palmer believed a single word that he said to us. He should be somewhat concerned about his reputation.

Sir Geoffrey Palmer actually said to us that Dutch law should apply in New Zealand. I thought he made the case as to why a member of Parliament should not pledge allegiance to a foreign State. Who would think that Dutch law should apply in New Zealand, were it not for the fact that an MP had pledged allegiance to a foreign State? New Zealand law should apply here. The moment that Sir Geoffrey Palmer walked out of the room, not one single member thought that Dutch law should decide who is elected in this Parliament. None of us supported the arguments he put forward.

We had a bit of a debate about whether Sir Geoffrey Palmer has ever won a court case. I live in west Auckland, where we are sprayed because of the painted apple moth. The people who live in the area around me are not wealthy, and they have asked me whether Parliament would change that programme. I have said that it would not do that. So they went to see Sir Geoffrey Palmer, who took a huge fee off them and said that he could fight it. Yet they are still being sprayed. The only case I know of that has ever been lost before the Waitangi Tribunal is the case where Sir Geoffrey Palmer told a group of poor Māoris that the kiwifruit was a taonga. Even the Waitangi Tribunal thought that that was a stretch. I say to Sir Geoffrey Palmer that the money is not worth it, and that he should think about his reputation.

Let me go on to see who else is being shredded. Our Prime Minister, who has been very silent today, learnt about this matter on 4 July. How long did she take to decide that she needed to act? That day—4 July—Mr Duynhoven’s warrant was suspended. We have known about the issue for a considerable period. The law states the Speaker must act “without delay”. The Prime Minister acted without delay, in taking 12 hours to suspend Mr Duynhoven’s warrant. Have we taken 12 hours? No, we have not. We all know that the seat was vacated on 11 June, and here we are on 7 August. Our reputations as parliamentarians are being shredded, because nobody believes that we are acting without delay.

But I want to go further than that, and say Mr Duynhoven has put the Speaker in an impossible position. When Mr Duynhoven’s colleagues said we should have a bill, were they actually trying to help him? Of course they were not. They know that he would have won a by-election. The reason that his colleagues are getting this bill through is to protect some MPs who were not prepared to be upfront and go to see the Speaker. Why is Mr Duynhoven lending his name to that? He should not do that. He should resign.

But I will go further than that, and say to Mr Duynhoven that, much as I like him, he was not as upfront as he has tried to pretend to be. When he turned up to the committee, I asked him for a copy of the application. He said he had it. Although I asked him for it, it has not arrived. I asked him when he really applied for the first time, but we have not had an answer from him. It turns out that Mr Duynhoven had a number of attempts to get Dutch citizenship, and one of them became lost in transit. The fact of the law is that the moment Mr Duynhoven filled out that form and sent it off, it triggered the application of section 55 of the Act. If he did do it earlier than he has said, his obligation to resign becomes greater.

Let us consider other matters. The most controversial bill this year—the prostitution bill—went through on Mr Duynhoven’s vote, and he was not validly a member of Parliament at the time. That ought to concern him, as well.

I say to the House that here is a member of Parliament who has said that he did not give the matter a moment’s thought. I accept his word on that. But do I think that is the right thing for a Minister to say? Of course he should have thought that citizenship was worth a moment’s thought. He did actually know it was important, because, an hour after he sent the form off, he thought perhaps he should tell the Prime Minister about it. If he had gone to see the Prime Minister an hour earlier, he would not be in this position. I say to Mr Duynhoven that we should not be in this position, either. He should tender his resignation today.

I had the privilege of being part of the Privileges Committee on the evening of 30 July, in the absence of Peter Dunne, and during that evening the committee received evidence from Terence Arnold QC—our Solicitor-General—on section 55(1)(c) of the Electoral Act, which is at the heart of this debate. Today I would like to talk about the background to that section, and the way in which it has been interpreted during periods of time over the years.

First of all, as we know, that section of the Act had its origins in 1852—151 years ago. The first point I make is that it absolutely beggars belief that over those 151 years this is the first time that section 55(1)(c) has been breached. Countless parliamentarians have gone through this Parliament since 1852. Many of them would have had dual nationality. In order to get dual nationality they would have had to apply, for example, for a British passport. Under section 55 of the Act, immediately they took that action—“immediately”, as Richard Prebble correctly says—their seat would have become vacant under the law. It is very, very clear that literally hundreds of MPs may well have breached the law over the last 151 years. Is it not remarkable that after all that time the first MP in history to put his hand up and say he thinks he may have broken that law is Harry Duynhoven? For the first time, someone has put his hand up.

By the way, the law was strengthened from 1975 onwards. From that time, people have not been able to become members of Parliament without having New Zealand citizenship. So there has been, shall we say, a higher responsibility on MPs since 1975, if they breach this law, to put up their hand and say so. We then go through the procedure that we face for the first time here today.

I would like to make the point, too, that the minority report of the Privileges Committee lays some weight on the fact that a select committee had another look at this law in 1993. If that is true, I can only say the select committee in 1993 did a very, very poor job of work, indeed. As I will mention in a moment, I believe the policy intent of this law has a loophole in it that is big enough to drive a bulldozer through. If any self-respecting lawyer had been in the House in 1993 and thought about the policy intent of section 55(1)(c) of the Act—which I am about to talk about—that lawyer would quite clearly have seen that the section is quite ridiculous.

I turn now to the policy intent of section 55(1)(c), which was explained by the Solicitor-General, Terence Arnold, to the committee. He said that the policy intent was to prevent a member of the New Zealand Parliament from having dual allegiance—that is, an allegiance to New Zealand and the possibility of allegiance to another foreign jurisdiction. That seems to me to be quite a reasonable point. Any member of this Parliament needs to give allegiance solely to New Zealand, and to no other foreign nation. Perhaps I can illustrate the issue by giving this example. Let us suppose an American member of the Senate becomes the honorary consul for the nation of New Zealand and continues to sit in the US Senate. Probably no one would be very concerned about that. But let us suppose a citizen of the US, who is a senator, is also the honorary consul for North Korea. In today’s environment, one would think that the US Senate could regard that as unpatriotic and as illustrating a divided allegiance—in that case, against what is, at this moment, one of the US’s prime enemies. Terence Arnold explained that that was the kind of situation that section 55(1)(c) anticipated. He gave the illustration of the Second World War. If, during that war, a member of this Parliament had applied to become a citizen of Germany, that would have been evidence of swapping allegiance from New Zealand over to a country that was, in those days, our enemy. The point I make is that if that is the policy intent of section 55(1)(c), then there is a great loophole.

Right here and now, and during the last election, any citizen of New Zealand who is also a citizen of any other nation has dual citizenship. I imagine that many of the MPs who contested the last election are in that position of having dual citizenship—of also being citizens of other countries. I myself, for example, am eligible for both an Irish passport and a British passport. I have not activated that, but my father was born in Northern Ireland, a jurisdiction that is recognised by both Ireland and the United Kingdom. So I am eligible for three citizenships, here and now. I could easily have activated that before the last election. Had I done so, I would be in Parliament owing allegiance, from that point of view, to three different nations, but I would not have broken any law. There would be no basis on which anybody could ask me to vacate my seat in Parliament.

That is the huge loophole in this whole thing. [Interruption] Mr Prebble is trying to interject, but he has had his say, and I want to have mine. The Solicitor-General, in response to my specific question, said that what I have said is exactly right. We all know it is right. We can be elected as members of this Parliament if we hold dual citizenship. There is nothing to stop it, and we are not obliged to reveal that to the electorate. The Solicitor-General said that maybe a person in that situation could tell the electorate. For example, in Harry Duynhoven’s case, if he had taken this action before the last election, he could have told the electorate that he had Dutch citizenship in addition to New Zealand citizenship. That was actually the fact of the case. Harry Duynhoven, in effect, was a citizen of the Netherlands at the time of the last election—and he broke no law. On that basis, we have no justification for asking him to vacate his seat in the House. Therefore, that is a considerable loophole.

Let us look at the issue in another context. Let us suppose that, at the time of the Second World War, a person was elected to this Parliament who was a citizen both of New Zealand and Germany, and that person had a malicious intent in entering Parliament. Therefore, the member did not reveal during the election campaign his or her dual nationality, and nobody knew about it, because the member did not bother to tell anybody about it. It is not as though we have a police force that goes around looking for these offences, because this is the first time there has been a so-called offence in 151 years, despite it being obvious to me that the provisions of this law have been broken time after time. The individual whose situation I have outlined would have been perfectly validly elected to the Parliament of New Zealand. He or she could have served in it while giving his or her allegiance in various ways to the nation of Germany during the Second World War, and, in terms of this particular section, there would have been no grounds whatever for asking that member to vacate his or her seat in Parliament. I think that is a major contradiction in this law. I think that this law, in both its policy intent and its legal interpretation, is obscure.

There is one thing that I am very, very satisfied about, and it is this. Harry Duynhoven has not broken the spirit of the law or of section 55(1)(c) of the Act—he has not broken the spirit of that. In fact, he has done the honourable thing for the first time in 151 years, put his hand up, said he may have broken the law, and asked for it to be looked at. I think we should praise him for that, and in no way criticise him.

At the Committee stage of this bill Peter Dunne will move an amendment to limit the exemption we are making to the law to the period from 14 August 2002 to 6 August 2003. That is designed to ensure, obviously, that Harry Duynhoven retains his seat in this Parliament—and that is, obviously, the intent of the bill that we are looking at and also of Peter Dunne’s amendment. But it does mean that between today and the next election, if anybody else in this House wants to renew a passport, get another nationality, or become a consul or whatever else for a foreign power, he or she will have to come back to the Privileges Committee, just as Harry Duynhoven did.

First, I want to say that I am a member of the Privileges Committee and had the advantage of hearing all of the evidence and submissions surrounding this matter, and the different legal views of Sir Geoffrey Palmer and the Solicitor-General. The discussion in the committee was certainly rigorous. In the end the Greens were part of the majority that agreed that Mr Duynhoven’s action has led to the vacancy of his seat. There is no doubt that the law, as it is written, applied in this case, and that Mr Duynhoven’s actions triggered it. But equally, the Greens were part of the majority that agreed that the law needed to be changed because the public policy behind it is flawed. The law does not cure the mischief it was designed to cure, and the consequences are disproportionate to the action. The Green Party supports this bill and will do so through to the final reading.

The Greens accept that Mr Duynhoven, whose actions have brought this issue to the fore, has done nothing illegal or wrong. He has not breached or offended any law. His actions of confirming his entitlement to Dutch citizenship have simply triggered an automatic legislative consequence. For Mr Duynhoven this is a serious issue about the affirmation of his heritage and his genealogy, and his obligation to protect that heritage for his descendants. We have every sympathy for that personal desire and we would staunchly defend his and anyone else’s right to protect that heritage.

With this particular circumstance Mr Duynhoven had only a small window of opportunity to reaffirm his citizenship, between April of this year and March of 2005. That period sits fully within the parliamentary term. In effect this provision requires Mr Duynhoven to choose between his job and his heritage. In our view that is an unacceptable consequence of this provision.

I strongly believe that because of the citizenship laws in this country that allow for dual citizenship for individuals, and that MPs are able to stand for re-election and election while holding dual citizenship, this archaic provision does not, in effect, prevent the mischief it was originally designed to cure. It is a stupid law, and like other stupid laws it should be changed.

In the New Zealand context this provision dates back to 1852 but, in fact, is sourced in very old law, well before the unjust colonisation of this country. The primary purpose of the provision is to protect against an MP making an allegiance with a country with which New Zealand is at war. The MP’s seat becomes vacant but the MP can stand again immediately so that the electorate can reassess the importance of an MP’s acquired allegiance and choose whether to reaffirm his or her representation.

This raises two concerns for me. It is only an electorate MP who can stand again to seek another mandate. In an MMP environment, list MPs will lose their seats permanently and be replaced by the next person on the list. While the position of list MPs is different from electorate MPs, and the list process does have its own peculiarities, it must be remembered that we are talking about a very serious consequence—losing one’s job permanently and with no recourse to resume one’s seat. I believe that a party’s list vote is indicative of both support for the party policy and support for the list candidate as representatives of a community of interest rather than a locality. The community of interest that supports that party and those representatives should not, in my view, be accorded a lesser status. This provision does not take into account the specific needs of an MMP environment.

The second concern is the implication that a simple affirmation of citizenship or nationality to another country, which does not require the abrogation of New Zealand citizenship, presumes that a person is inherently untrustworthy or suspicious. One reason given for the provision was that, for example, in 1940 we would not have wanted an MP who affirmed his or her citizenship to Germany. I am not compelled by that reasoning, and I believe that it has some serious negative implications. In particular, as I say, I am very concerned that circumstances may arise where an MP is presumed a potential threat to the nation, simply because of his or her citizenship and not as a result of his or her actions.

New Zealand law has taken a very liberal approach to dual citizenship, particularly since 1977. Section 16 of the Citizenship Act says that a person may be deprived of his or her New Zealand citizenship where the person has, first, acquired the citizenship of another country and, second, acted in a manner contrary to the interests of New Zealand. That second part of the test is open to very wide interpretation, but it is at least predicated on some overt act by which a person may be judged, and not simply the fact that a person has, or acts on, his or her dual citizenship. The Citizenship Act has moved this country away from the paranoia and prejudice of the past and into an area where a person is entitled to acquire and exercise dual citizenship so long as he or she does not do anything contrary to New Zealand’s interests. Section 55(1)(b) and (c) is inconsistent with that approach and should be reviewed, which is one of the opportunities that this bill makes way for. The Greens have no problem supporting the changing of a stupid law that is not effective in preventing the harm it is designed to cure and has unjust and disproportionate consequences that far outweigh the harm caused.

I want to make a plea to the members of this House who support the legislation, because of harsh and unjust consequences, and ask that they take the words of the Leader of the House to heart that when the law is an ass the law should be changed. That same principle must apply to the laws that affect the New Zealand public. The public are quite right in questioning why it is that a law that is unjust and disproportionate and affects, at most, only 120 MPs can be quickly changed, but similar laws that are manifestly unjust and cause massive, disproportionate harm to thousands of New Zealanders are not accorded the same priority—like, for example, the cannabis prohibition law whereby 22,000 New Zealanders every year are arrested and convicted, simply because they smoke a joint or two. The law is applied unfairly.

💬 Gordon Copeland: I raise a point of order, Mr Speaker.

💬 Mr SPEAKER: The member can make a point, and she related it to the bill, but now she is to come back to the bill. I presume that that was the point of order that was being raised.

There are, as I have just explained, examples of laws in this country, which affect thousands of people in this nation, that are similarly applied unfairly and where the law is similarly proven to fail to cure the mischief it was designed to cure. In my view, any MP who does not apply the principle, that an unjust and unworkable law should be undone, to other laws such as cannabis prohibition is rightly subject to public criticism of duplicity and self-interest.

The Greens take a consistent and rational analysis of the efficacy of the laws in this country—an analysis based on what is just, appropriate, and right. That is why we work for the review of cannabis laws, and why we support the repeal of section 59 so that adults can no longer beat children legally. We support this bill simply because—

💬 Gordon Copeland: I raise a point of order, Mr Speaker.

💬 Mr SPEAKER: The member had just returned to the bill in the sentence she was developing. I am allowing her to carry on.

💬 Hon Richard Prebble: I raise a point of order, Mr Speaker. I want to support the member. She is explaining why the Green Party is voting as it is. Just because the rest of us might not think that that is logical, it is not a reason for her not to be able to do that. We have not stopped any other member giving his or her views. I am actually interested to know how the Greens have reached their conclusion. I think the member should be allowed to give her speech. If she can see a connection between the Electoral Act and marijuana, I totally accept her word.

The Greens support this bill as simply dealing with one unworkable and unjust law on a spectrum of unworkable and unjust laws that must be changed. It is clear that until we as parliamentarians deal with other irrational, inconsistent laws, we will be accused only of self-interest at the expense of the rest of the community.

Sometimes some of the most amazing things that have happened around this place have been when parties that are in trouble on a range of issues—particularly legislative issues—try to deflect attention away from themselves, because the ice they are skating on is very, very thin. They are spreading the net, looking at who they can blame and attack so that they can deflect attention away from themselves, and that, most certainly, is happening in this case. This is a very important and very interesting debate. I suggest that we move on and get on with passing it through the House.

This is a very important and very interesting debate. It has been brought about by the actions of a member of the Labour Party who, according to the advice given to the Privileges Committee, and therefore this House, by the Solicitor-General, has done, concurred in, or adopted an act whereby he became a subject or citizen of a foreign State or power, or became entitled to rights, privileges, or immunities of a subject or citizen of any foreign State or power. That is the clear advice of the Solicitor-General, who analysed the position, as outlined on the facts of Mr Duynhoven’s case and based on the facts supplied by Mr Duynhoven. Page 2 of his report states, and I quote: “Applying the analysis just outlined to the facts of Mr Duynhoven’s case, the position is as follows: 1. Mr Duynhoven was not a Dutch national when he was elected to Parliament in 2002. 2. In order to become a Dutch national, Mr Duynhoven had to take certain actions within a defined time frame. If he did not take that action Mr Duynhoven would have lost the opportunity to acquire Dutch nationality. 3. After, and because Mr Duynhoven took the necessary action—that is, filing this completed application on 11 June 2003—he became a Dutch national with retrospective effect.” Paragraph 5 states: “On this analysis, it seems clear that Mr Duynhoven’s act of filling his completed application created a vacancy within the terms of section 55(1)(c).” That is an unequivocal, clear statement, with no ambiguity about it, on the facts supplied by Mr Duynhoven.

On the face of it, looking again at section 129 of the Act, one would say that there were clear grounds for a decision being made without delay, but that is not a matter for me to decide, and I leave it at that point.

The Solicitor-General advised us, and New Zealand First does not hold the views of the Solicitor-General very strongly, and that point has been made by the leader of this party. However, the statement has been made, and it has been accepted by the select committee, and I believe that those views have been accepted unanimously, and that includes New Zealand First in the final analysis.

In this case New Zealand First had offered the Labour Party its support in allowing Harry Duynhoven to retain his seat on a retrospective legislation basis. We said to the New Zealand Labour Party that Harry was a good bloke and we were pretty sure he would have done this absolutely without any malice, by accident, and in a blameless way. It is clear that all those views apply to Harry Duynhoven. We were, and still are, ready to support an Act that will reinstate Harry Duynhoven to this Parliament and apply to section 55(1)(c). However, in front of us is a breach of that offer made by New Zealand First to the minority Labour Government. We gave it an inch and it took a yard. We offered to help it. It has thrown back our offer in our face, slapped us in the face and said “You can offer these things, but we’ll do what we like, and you don’t count.” We made the offer, and obviously it has not been accepted, and the Government is now saying that the Act should apply not only to Harry Duynhoven but to anybody else who may have come within the sphere of section 55(1)(c).

Furthermore—and this does not even apply to Harry Duynhoven, because he did not swear allegiance to another power; he only filled out an application form to have his Dutch citizenship restored—the Government is saying that despite the fact that Harry Duynhoven did not swear allegiance to anybody else, it will amend section 55(1)(b) of the Act as well. That section states that the seat of any member of Parliament shall become vacant “If he or she takes any oath or makes any declaration or acknowledgment of allegiance or adherence to any foreign Prince or Power;”. The Labour Party is saying that despite the fact that Harry Duynhoven did not do that, it will amend the legislation for this term of Parliament so that it applies not only to Harry Duynhoven, but to anyone else who may have applied for Dutch or British citizenship—not even Dutch citizenship, because usually to get citizenship one has to swear allegiance. Harry Duynhoven just filled out a form. But in addition to those just filling out a form, this legislation will apply to people who have sworn an oath or allegiance to another foreign power.

💬 Brent Catchpole: Why would they want to do that?

Exactly. One does have to ask, why go beyond what Harry Duynhoven has done? I am a lawyer. I am automatically suspicious. I get paid for being suspicious. I have won many, many court cases—unlike, I am told, Sir Geoffrey Palmer, with whom I was compared. There is no comparison between me and Sir Geoffrey Palmer. I win court cases. I am told that Sir Geoffrey Palmer only loses them. That is why I was able to continue—

💬 Hon Richard Prebble: But he charges a lot more.

He does charge a lot more. That is why he is probably the better lawyer as far as the public is concerned. As far as this particular case is concerned, who in the Labour Party is being protected here? No one in New Zealand First is being protected by this legislation. I have spoken to members and I have looked at passports to see whether they have been renewed.

💬 Hon Chris Carter: Check the American Embassy.

I have looked at the passport. Members know that when a passport is renewed, the top right-hand corner is ripped off. I have seen the passport. That has not been done, so no passport has been renewed. Mr Carter can try. I am concerned about Mr Carter’s comment, when he asked whether I had rung the American Embassy. I am concerned about whether the Labour Party has been colluding with the United States Government to find out the allegiances of New Zealand members of Parliament. Mr Carter laughs and says they are his friends. Has the American Ambassador been contacted by the New Zealand Labour Party to find out whether New Zealand members of Parliament have been taking any actions? I find that to be a gross abuse of the Government’s power. I believe that it is a breach of the Privacy Act at the very least. I ask the American Ambassador, in this House, to report to New Zealand First, and perhaps even Mr Speaker, on what collusion there is between this Labour Government and the American Ambassador. That point has been put to me not just by Mr Carter but also by Mr Cullen, making accusations about a New Zealand First member of Parliament on the basis of having been in collusion with the American Government and the American Embassy. I am sure that the American Ambassador will reply, having made an investigation in his department on what collusion there is between Labour Ministers, the American Ambassador, and his staff. As a Parliament we need to know what is happening.

A lot has been said about how far this legislation goes back, and Dr Cullen jumped up and down about it going back to 1701. Really, if we want to take this legislation back to its source, we might even go back to 1215, because this legislation is all about our countrymen judging us, and our countrymen being the people who should be in Parliament with us. As we know, the Magna Carta was all about being judged by one’s peers. This legislation is all about being judged by one’s peers and being governed by one’s peers. That is what the Magna Carta was about. I think it is a real red-herring smokescreen to go back to 1852, 1701, the peninsula war in the late 18th, early 19th centuries—we could go back to the Magna Carta if we liked. We could probably go back to Roman law if we wished.

The point is that this Act was considered in 1981. I understand that this Act was considered as recently as 10, if not 3 years ago. This Act is relatively new on our statute book. It is relatively new legislation, and Harry Duynhoven broke it. New Zealand First is most concerned that the Labour Party has slapped us in the face. I tell the people of New Plymouth that New Zealand First thanks them for all the party votes it got in the last election. We did extremely well in New Plymouth at the last election. We are only too pleased to help Harry Duynhoven. He has done a good job in New Plymouth and we do not want the taxpayer to go to the expense of a by-election. But if this minority Labour Government is not interested in taking up New Zealand First’s genuine offer, well, then, I am sorry but what else can we do but take the view that the Labour Party is hiding someone, and we want to know just who the guilty person is.

I will take a brief call, really to say only this: it is disappointing to hear some of the churlish remarks that have come from around the House. It is the right of members to say how they feel about this matter, but perhaps members might like to think for one moment that there but for the grace of God go I, as that could be applicable to a number of members who are sitting in this House. Section 55 as it is currently drafted has inappropriate, surprising, and unexpected consequences. A member in Mr Duynhoven’s situation should not lose his seat. Dual citizenship is not unusual in New Zealand. There is no reason to believe that members of Parliament with dual citizenship cannot put New Zealand’s interests foremost. I commend this bill to the House, and I hope it progresses swiftly.

I am pleased the member made that contribution, because that is exactly the point that needs to be clarified. She talked about dual citizenship; this issue is not about dual citizenship—that is not the issue. It seems that she and the Labour Party are confused now about what we are debating.

The point is that members of Parliament are elected by people who vote for them on the basis of what they are. Some candidates will stand as citizens of New Zealand. Some will stand as dual citizens, being citizens of New Zealand who have the right to hold an English or an Irish passport, or a European or an American passport. The people have the right to know what allegiance a candidate has; then it is up to the people to chose whether they want to support that person. In my case, I have New Zealand citizenship and a New Zealand passport only—that is all I have. Other people in this Parliament have New Zealand citizenship and New Zealand passports, and have British or other passports. The people have a right to know that. The people decide whether they think it is appropriate that such a person should be elected to Parliament—it is one of the many factors they will take into account. When those people have made that decision on the basis of that person’s allegiance to whomever he or she has sworn allegiance to, that is fine—the public have decided. That is democracy.

The issue here is that if a member of Parliament, having been elected to Parliament, decides to change his or her status, decides not only to retain allegiance to New Zealand but also to offer allegiance to another body, a foreign body, then the public have a right to know, and the public who voted for that person should have the right to decide whether, given that extra allegiance that the member has now given to some foreign body, they want that person to continue to represent them. That is the issue. Harry Duynhoven, having got New Zealand citizenship—in fact, he was born in New Zealand and has it as of right—also was eligible, because of his parentage, to apply to another foreign body to get the passport, nationality, and privileges of that country, and, in doing so, gave allegiance to that country. That is not the issue; the issue is that he now has changed his status, and the public have a right to know that his allegiance now is not only to New Zealand but to some other country, and therefore they have a right to decide whether they still wish him to represent them. That is the issue here. Harry Duynhoven, by taking the course of action he did—by applying for Dutch nationality—changed his status, and the public in New Plymouth then have a right to make a decision as to whether they think he is the appropriate person to represent them. That is democracy. Today we are debating the issue of democracy in this Parliament.

A point that has been made before, but is well worth making again, is that it is very likely that if a vacancy were created and Harry Duynhoven stood, he would be re-elected. We do not know. We will never know that now, because the Government has taken away from the people of New Plymouth that democratic right to decide. The Government has decided that 120 people will cast their votes for or against Harry Duynhoven. We are going to end up with a situation whereby it is not the good people of New Plymouth who make a decision as to who is to represent them; instead, 118 or 117 people in New Zealand will decide whether Harry Duynhoven is the appropriate person to represent New Plymouth. I say that we have an absolute, fundamental breach of our constitution. This issue is all about democracy. Why should just a handful of people make a decision on behalf of the people of New Plymouth, and take away their democratic right to make that choice? In doing so, the Government is absolutely trampling right across democracy in this country. I say, as I said earlier, that that is absolutely appalling.

Of course, the Government will say that the reason it does not want a by-election is that it costs too much money. It is estimated that it might cost $200,000, $300,000, or $400,000 to hold a by-election. I ask the House to reflect on the fact that we are going to be debating this bill for 9 or 10 hours today, and the likely cost of that to the taxpayer is somewhere between $2 million and $4 million. That is what it will cost to pass this legislation to save Harry Duynhoven, as opposed to a by-election cost of $300,000 to $400,000. I wonder whether taxpayers think that is good use of their money. I doubt it. I would love to be on a stage with a Labour member of Parliament, and to ask that member to justify why it is better to spend $2 million to $4 million, rather than to spend $300,000 to $400,000 and, on the way through, let the people of New Plymouth have their say.

That is the first issue. The second issue is that this whole debate is about Harry Duynhoven and the fact that he took an action that caused him to vacate his seat. On the way through, there are issues around whether, given that he has vacated his seat, he should have received the remuneration he has accepted, which is probably about 20 grand, but that is a bit irrelevant. The issue is this: why is the bill so broad? That is the issue that is now of concern in this Parliament. If this bill is about Harry Duynhoven, why does the bill not focus only on him? If the majority of the people in this House decide that he should retain his seat, then why does the bill not focus only on Harry Duynhoven? Why is the bill not worded so that it saves just Harry Duynhoven in his seat of New Plymouth. [Interruption] That is the point. Winston Peters is asking who else is guilty on that side of the House. We do not know.

What is worse is we, the Opposition collectively, have been asking who the person or people in Labour are who have the problem. At least Harry Duynhoven had the decency and the honesty to put his hand up and say he had a bit of a problem. What the Government is doing now is sheltering somebody or some people in its caucus who are hiding behind Harry Duynhoven. That is a disgrace. Mr Duynhoven should be embarrassed by that. He should be saying: “Hang on a minute. I don’t want to have to carry the full weight of this and cover up for somebody else.” Why does the Labour Party not come clean? Is it the Prime Minister who has a problem? Is it the Minister of Foreign Affairs and Trade? We do not know. Somebody over there is hiding behind Harry Duynhoven. I do not like that, Parliament does not like it, and I bet that Harry Duynhoven does not like it. The whole country should be asking why the Government is trying to cover up for somebody. Is it Chris Carter?

It could be me; that’s right.

I do not think so, but I will ask him. I wonder whether he will stand up on a point of order and say that it is not him, so that we can cross one off. I do not think he will. He is sitting there smiling. The point is—

💬 Hon Richard Prebble: He actually said it could be him.

If it is him, he should be honest enough to stand up and say that it is, and then we would know what Labour is covering up.

I qualify for a Dutch passport, too.

That is true; we do not expect that from Chris Carter, but the fact is there may be others in the House who need to stand up and declare themselves. We challenge them today. Indeed, I challenge the senior Labour whip to stand up and come clean. He had a chance to do that not so long ago. He took a call, made a poor contribution, and never once said that, by the way, he had checked the members of the Labour caucus and they were all clean.

💬 Hon Richard Prebble: Of course he has checked.

Richard Prebble makes that point quite rightly; the whip has checked and found something, and now is not saying. That is the problem. He has the opportunity to tell us; even now, he could do it by taking a point of order. He could stand up and say: “I raise a point of order, Mr Speaker. We’re clean now.” It would be outside the Standing Orders, but at least it would solve the problem, and we could get on with this bill. But the fact is the Labour members will not do it, and they cannot do it, because they know they are covering up for someone. The public of New Zealand have a right to know that this Government is prepared to spend up to $4 million of their taxpayer dollars to cover up for someone who will not come clean. That is an absolute disgrace, and this is a black day for Parliament.

I promised the House that I would report back to it on two points raised with me at the commencement of the second reading debate.

The first relates to those provisions of the Electoral Act that require a 75 percent majority before they can be amended. These provisions are identified in section 268 of the Act. Section 55, which is amended by this bill, is not one of the reserved provisions. The 75 percent majority requirement therefore has no application to this bill.

The second point is a more complex issue, and it is right that I should give a full response to it. The Electoral Amendment Act 2002 has reposed a duty on the Speaker, when the Speaker is satisfied that a vacancy exists, to notify that vacancy in the Gazette without delay. I do take Dr Mapp’s point that the Speaker is not necessarily the person who decides that a vacancy actually exists. Rather, the Speaker is taking the consequential action to fill a vacancy that has already occurred, and that could be established as a matter of law independently of any action of the Speaker. After all, the Speaker is not given a role under section 55, the vacancy provision. The Speaker is given a role under section 129, the by-election provision.

It is clear that the Speaker could take a decision to call a by-election without consulting the House at all. This would be contrary to all precedent but it is legally possible. I do not think for one moment that members would feel that any Speaker should act without consulting them, if there was a real doubt about whether a vacancy actually existed. I ask members to reflect on whether they would be comfortable about a Speaker doing that. After receiving advice that I should consult the House first before arriving at a decision, this was the course that I took. I think that it is reasonable on a Speaker’s behalf for me to defer taking action under section 129 for a short period, to hear what the House has to say on such a critical issue as a member’s right to sit in this House. I believe that in doing so I am acting completely within the scope of the duty cast on me by the statute.

Of course, the Privileges Committee inquiry is the most detailed examination of this issue. But select committees report to the House. They are not independent decision-making bodies. My consultation with the House will involve the House’s consideration of the committee’s report. I made this point in my ruling on 23 July, and I note that it was endorsed in the committee’s report when it stated on page 5: “... it is still appropriate for the Speaker to refer a question to the Privileges Committee and for the House to consider the committee’s report, if there is a real doubt as to whether a vacancy has occurred. The Speaker then makes a judgment that is informed by that parliamentary consideration.” The House’s Standing Orders do give priority to consideration of a Privileges Committee report, unlike all other reports, and in these circumstances I do not consider that it is unreasonable for me to wait for that consideration to occur before I take action.

Mr Prebble argues that the House’s consideration of this bill provides sufficient feedback for me to act. Other members have warned that the Speaker should not defer a decision so as to give the Government time to bring in legislation to avoid the consequences of the vacancy. I agree with this latter point. I will not delay for that purpose. But I point out that it has been open to the Government to bring forward this legislation at any time since Mr Duynhoven’s situation became known. There is nothing that peculiarly permits such legislation only now. My actions have proceeded quite independently of the Government’s legislative plans.

I do not accept Mr Prebble’s suggestion that a debate on this bill substitutes for the House’s consideration of the Privileges Committee’s report, especially where that report is guaranteed priority for debate at the House’s next sitting. I have consistently said that it is at that point that I will decide under section 129 whether a vacancy has arisen. I have never hidden this from the House, and intend to maintain that course.

In view of the fact that this is a lengthy ruling, I am ensuring that a copy of it will be placed in every member’s bill box, and members might like to study it carefully.

I raise a point of order, Mr Speaker. I thank you for the ruling. I want to raise one issue from the ruling you have given. You made the point that you asked members to reflect upon whether they would be comfortable with the Speaker making a decision as to whether a vacancy had occurred, without consultation with the House. I put it to you that the law was changed exactly for that purpose; that members decided that it was not appropriate that the majority in the House determined whether there was a vacancy. We see the exact reasons for that decision occurring here today, where the Privileges Committee has made a decision that there is a vacancy, where the Clerk of the House has given his advice to the committee that there is a vacancy, and where the Solicitor-General has given clear and unambiguous advice that there is a vacancy.

For you then to say that members should reflect on whether they are comfortable that you make a decision on that rather than wait for the House to make its decision is, I put it to you, stretching beyond the point where the House wanted you to be. The House, in its decision to legislate to give the Speaker the power to make the decision, was sending the Speaker a signal that it did not believe that a Government using its majority in the House should be able to subvert Parliament and, in fact, make a decision that there was not such a vacancy. That is not what MPs expected, and that is what we are now seeing occur. For the very reasons that we are seeing now, Parliament gave the Speaker the power to determine independently whether there was a vacancy.

The fact that you choose not to use that power—and that is your choice—is certainly of concern, and I want to take you up on the point you made about members reflecting on whether they would be comfortable about your making that decision. I say to you that, yes, we are comfortable about your making the decision, and it should be made, rather than your letting a Government use the weight of its majority to subvert the whole process.

No, the Speaker was made the decision maker. Nothing precludes consultation. This is dealt with in the report and in my ruling. Independence does not mean no consultation.