Points of Order — Presentation of Report of Privileges Committee

I raise a point of order, Mr Speaker. Noting that the Privileges Committee report has now been tabled, and having had a look at it and being aware of its contents, and also being in possession of a fax transmission to you yesterday from Crown Law, in which the Solicitor-General has stated as point 15 that his conclusion—

💬 Mr SPEAKER: I have not received any fax from anyone. I can tell the member that I have not received a fax.

I raise a point of order, Mr Speaker.

💬 Mr SPEAKER: The member is in a point of order.

It is a new point of order. Given your statement that you have not received the fax that was sent yesterday to the Clerk of the House, are you telling us that the Clerk has not passed it on?

💬 Mr SPEAKER: It was sent to him on behalf of the Privileges Committee; it was not sent to me. So would the member please restate what he is saying.

The point is that there is now a Privileges Committee report on the Table. We know that in that report there is a reference to the Solicitor-General’s comment—point 15—that states the conclusion is that section 55(1)(c) of the Electoral Act is unambiguous, and that as a result of Mr Duynhoven filing his completed application on 11 June 2003 it meant that his seat became vacant. Section 129(1) of that Act states that the Speaker must declare the seat vacant as soon as he knows that that is the determination by the relevant authorities. It seems clear that that is what has happened here.

I have looked through Speakers’ Rulings and cannot see a time when any Speaker has ruled that although something is generally known to be a fact by the public, the Speaker himself or herself does not yet know it. We get into a rather difficult situation, particularly if we look at Parliamentary Practice in New Zealand, written by David McGee, which states that the House and its members are subject to the law of the land, as promulgated by Parliament, in the same way as everyone else in the State, and that they must comply with any statute that applies to the House’s proceedings, notwithstanding any Standing Order or practice of the House to the contrary.

I think that today we are straying dangerously into the territory of using the practice of the House to circumvent the law. That is a little bit of a concern. It would be unfortunate if the office of the Speaker were to be in any way drawn into the ambit of what a Government wants and prefers. We have seen the device of the Privileges Committee used for consideration of a matter that really, in many people’s view, should not have gone there in the first place, because it was so patently clear-cut that there had been a breach of the law and there was a vacancy in the seat concerned. Our question is this: when do you intend to declare the seat to be vacant, now that it must be obvious to all of New Zealand that you know that such advice has been tendered?

💬 Mr SPEAKER: When I ruled on this matter on 23 July I said: “I will be guided in my actions under the Electoral Act by the committee’s report and the House’s conclusions on it.” Following the presentation of a report by the Privileges Committee, the report is set down for consideration as general business. This means that the report will be on the Order Paper for debate next sitting day, after questions and any urgent debate. I refer members to Standing Order 63. When that debate has been held, I will take any action that I consider needs to be taken in accordance with the Electoral Act.

I raise a point of order, Mr Speaker. Maybe you can help the House a bit further, in this regard. I read from the Privileges Committee report—thanks to Mr Brownlee, we know that this is the advice of the Solicitor-General—

💬 Mr SPEAKER: We are starting to debate the privileges issue. The report has been tabled, but this has to be a point of order.

The report states that the Hon Harry Duynhoven’s seat became vacant on 11 June 2003, under section 55(1)(c) of the Electoral Act. It seems clear to me that the Privileges Committee has stated that the Hon Harry Duynhoven has gone. My question to you is this: why has he not gone?

💬 Mr SPEAKER: I do not need any assistance, as I said before. I quote what I said on 23 July: “I will be guided in my actions under the Electoral Act by the committee’s report and the House’s conclusions on it.” Committees can make recommendations; the House makes decisions.

I raise a point of order, Mr Speaker. You referred to Standing Order 63, which sets out an order for general business. I note Standing Order 63(1)(6) states “Consideration of reports of the Privileges Committee.”, and Standing Order 63(2) goes on to state “General business is held at 2 p.m. on each sitting day.” But this report was tabled earlier than 2 p.m. So it seems to me that going by Standing Order 63, you are required to deal with it at 2 p.m. today.

💬 Mr SPEAKER: Well, the member does not know the Standing Orders. It is put down on the Order Paper for the following sitting day.

I raise a point of order, Mr Speaker. I think this matter should be cleared up. There seems to be some confusion as to what has happened in terms of the procedure. As I understand it, the matter was referred to the Privileges Committee to hear evidence as to whether the law affects Mr Duynhoven’s right to be here. That is very, very clear. The second thing is that the House has to decide what it makes of the evidence presented to it by the Privileges Committee. That process is yet to be entered into. That being the case, there is the fact that for a brief moment you will have to make a decision before the legislation is, presumably, passed to rectify this matter. I think the points of order thus far raised are erroneous.

💬 Mr SPEAKER: The member is absolutely correct.

I raise a point of order, Mr Speaker. Notwithstanding the contribution from Mr Peters, the first point I make is that the deliberations of the Privileges Committee on this matter are not particularly relevant. The Solicitor-General has made it clear that there was a breach of the Act on 11 June 2003 and the seat became vacant. Are we now saying that the Privileges Committee is a body that can determine whether or not a ruling from the Solicitor-General is reasonable, is fair, and should be acted upon? If we are, we would like you to reconsider a letter that you received from the Hon Nick Smith. Once again, I ask this question: since Parliamentary Practice in New Zealand, by David McGee, makes it very clear that we cannot use the Standing Orders or the practice of Parliament to reach a position that is contrary to the law, how can anyone who is watching this process conclude that we are doing anything other than just that?

Members will have a chance to debate that. The Solicitor-General, however eminent, does not rule Parliament; the Speaker does.

I raise a point of order, Speaker. I thank you for that last point, and I thank my colleague the Rt Hon Winston Peters for his explication of the process, but you are quite right: it is you who decides that a vacancy exists. I am afraid—and I want to put this in as nice a way as I can—that it looks as though the Speaker is waiting for the Government legislation, before he decides whether a vacancy exists. [Interruption]

💬 Mr SPEAKER: I have had two interjections from one member. Yesterday I threw members out for doing precisely that. I warn members that there are to be no interjections during points of order, at all. I want to hear what Mr Hide has to say; he has a perfect right to be heard.

Thank you for that. The situation is that it has been your job—not that of the House—since 2002 to decide whether a vacancy exists. The Solicitor-General has advised that a vacancy has existed since 11 June. The Privileges Committee, to which you referred the matter, has confirmed that view by a majority. It seems to me that it is not the House’s job but yours to decide that, and it seems to us on the Opposition side of the House that you are awaiting legislation before you rule, in order to protect a member from the forces of the law. That has to be wrong, and I ask you when you will decide a vacancy exists, because that is not a matter for the House.

I am waiting for the House to debate the report of the Privileges Committee, which is a perfectly reasonable step and one which I announced on 23 July. When the House comes to a decision, I will then most certainly act.

I raise a point of order, Mr Speaker. I want to raise the issue as to why you would wait for the House to decide that. It is clear from the report that was tabled today that the majority of the members of the Privileges Committee believe that a vacancy has occurred. There could be two reasons to wait for the House to discuss that. One would be that the Government may well scrape up the numbers to overturn the Privileges Committee’s determination. If that is the case, are you telling us that you would be guided by that vote, rather than by the determination of the Privileges Committee? The other reason to wait would be that you—like everybody else here—know the Government will introduce retrospective legislation, so that by the time Privileges Committee’s report comes to be discussed, it will be redundant. If it is the second reason, it starts to look dangerously as though the Speaker is being drawn into the political manoeuvrings of the Cabinet. I think that it is a very bad place for the Speaker, and for this Parliament, to be. You were not required to refer this case to the Privileges Committee. Having done so, and having received its report and made it public, it is beyond comprehension that you would wait and risk being seen to be complicit in Government manoeuvrings.

It is worthwhile to remind ourselves how this issue actually arose. It arose because the Hon Harry Duynhoven wrote to you, Mr Speaker, raising a matter of privilege, and you ruled that a matter of privilege was involved. This House, drawing upon a very long tradition, has always been involved when matters of that sort are raised. That dates back at least to the Wilkes cases of the early 1760s, in terms of Parliament having a right to have a say in its own membership. That is clear. You stated at the time that a matter of privilege was involved, and that you would listen to the advice from the committee and from the House. The committee, of course, is not determinative of the House’s position; only the House can be determinative of that. You have determined that you will wait for that advice, but then the decision is yours and yours alone.

I also recall that I was asked by the Hon Richard Prebble whether the Government would give a guarantee that it would not introduce any legislation until after the Privileges Committee had considered this matter, and I gave that undertaking. I can conclude from that only that Mr Prebble was seeking an assurance that the Government would not legislate until the Privileges Committee had considered the matter, and that it was therefore perfectly appropriate for the Government to do so once the committee had considered the matter, even if one opposed the legislation. I make it quite clear that, had that not been the case, the Government would have legislated last week.

The problem with Mr Prebble’s request to the Government was that he did not ask the Government to give an assurance that it would not legislate before the House had considered the report. I am afraid that that was an omission on his part. But the real issue that concerns me, Mr Speaker, is the suggestion that you should make up your mind according to the Solicitor-General’s legal opinion. I want to give you two reasons that you should not consider that as a final arbiter of the correct course to take. I will give you references to the cases. They are the wine-box case and the Quality Inn affair, in which the Solicitor-General—though he might sit in the Court of Appeal today—was demonstrably wrong.

We have got to the point where I think we are going over the same ground again. The Speaker will always give every leeway to a member before taking the drastic step of declaring a seat to be vacant—no matter who the member is. In a doubtful case, that will involve consideration by the Privileges Committee and by the House. That is what I did on 23 July.

I raise a point of order, Mr Speaker. I have listened to the comments made by a number of members with regard to this issue, and, in particular, to the concern that was expressed by the Hon Roger Sowry and others in respect of the interpretation that may be put upon the fact that we are to debate the report on the next sitting day, and that you will delay your decision in the meantime, until that debate has taken place. Therefore, the possible interpretation by some is that you may be waiting until the Government seeks time to pass legislation to suspend the Electoral Act, in order to change the law in whatever way the Government wishes to in the bill that it will bring in. We have not seen that bill yet. I wonder whether it is appropriate for us, therefore—so that we do not put you in a position where it could be seen that you are perhaps at risk in that regard—to have the debate pretty much immediately, so that the House can debate the report—

💬 Mr SPEAKER: You can seek leave to do that.

I am just about to do so, but I wanted to explain why that is. If we debate the report, that would therefore enable you to make your decision without any bias, and without the complication of any pending legislation. Accordingly, I seek leave for the debate on the Privileges Committee’s report to be held immediately after question time has concluded.

💬 Mr SPEAKER: Leave is sought. Is there any objection? There is. I am getting to the point now where I want to move on. The points of order are becoming repetitious. However, to be fair to Dr Smith, I note that he has not had a point of order. I will allow him one.

I raise a point of order, Mr Speaker. I seek an explanation, in the light of your comments and ruling on this matter that you will treat all members on the same basis.

💬 Mr SPEAKER: Absolutely.

I wrote to you in respect of a question about whether I had broken the law, and asked for a Privileges Committee hearing with regard to the actions of the Solicitor-General. You advised that the Privileges Committee could not hear the matter, because the issue of whether or not I had broken the law was nothing to do with the Privileges Committee. I seek an explanation of why, when it comes to Mr Duynhoven and a suggestion that he has broken the law, suddenly there is a Privileges Committee hearing and we are going down a very different course of action. It seems that there are two different standards for members in this House when it comes to the deliberations of the Privileges Committee and to your rulings.

No, there are not. Mr Duynhoven has not broken any law.

I raise a point of order, Mr Speaker. I seek your indication of exactly what your role will be, following the debate that you wish to have. The indication is that you want to have the benefit of, and be guided by, the report of the committee—

💬 Mr SPEAKER: And the House.

The House debate is hardly likely to add anything more than a series of opinions based on the political interests of those in this House. The Privileges Committee is the most neutral body we have, and even it is not neutral. It has the advice of the highest law officer. I think the House deserves to know whether, if the House did decide one way or another after a debate, you would take the House’s decision as binding; if so, in what way would that relate to the breach of the law that I believe has been established? It is only sophistry that says there is no breach. How can the standing of the Chair as an apolitical figure be maintained in the face of your apparent indication that you want to wait until the House directs by majority?

I have said that I will be guided by what the House says, but in the end I will determine, based on the law, whether a seat has become vacant.

I raise a point of order, Mr Speaker. The House heard you very emphatically state that Mr Duynhoven has not broken the law. The question that arises immediately is why, then, the matter he brought to you was referred to the Privileges Committee, if in fact you are telling us that you are not at the moment moved by its decision, and yet you are so emphatic that he has not broken the law. It seems incongruous that you would think he had not broken the law, but would still send the matter to the Privileges Committee. Secondly, do we take it from that that you have determined that Dr Nick Smith has broken the law, and is therefore not allowed to have his case heard by the Privileges Committee?

No. I said that privilege matters do not necessarily involve a breach of the law.

I raise a point of order, Mr Speaker. That point clearly shows why it is important to have some time between the report being tabled and people attempting to debate it, because if people had actually read the report and read the evidence that was given, from both the Solicitor-General and, indeed—talking to their colleagues the members of the committee—the Clerk of the House, they would know that the situation is whether a vacancy has occurred through an action. The taking of the action itself is not an illegal action. There is no breach of the law if a vacancy occurs, and the member should understand that, if he bothers to read the report properly.

The member is perfectly correct.

I raise a point of order, Mr Speaker. I will be brief, and I assure you that this will be my last point of order.

💬 Rt Hon Winston Peters: Hallelujah!

I remember when I got thrown out for doing that to Mr Peters.

💬 Mr SPEAKER: I want Mr Peters to stand, withdraw, and apologise.

💬 Rt Hon Winston Peters: I apologise to Mr Hide. I am very sorry for doing that.

This is an important issue, and I want to give everyone the opportunity to contribute.

💬 RODNEY HIDE: The member is lucky I am not going to push it—he can stay.

Do not push your luck. Carry on with the point of order.

💬 RODNEY HIDE: The situation is this. I cannot say that I have read the whole report—we got it only at 1 o’clock—but I have read the conclusions and the Solicitor-General’s advice. Mr Duynhoven is in clear breach of the law. The seat became vacant on 11 June. So Mr Duynhoven is outside the law, and we understand that the Government is proposing legislation to put him back inside the law retrospectively. We also understand from the law that since 2002 you have had a statutory duty in such circumstances to declare the seat vacant. My question to you is whether you will not exercise that duty until some legislation has been prepared, and how come you yourself are not following the law in terms of the Electoral Act?

The point is that this is a matter for debate. Consideration of the report is set down for the next sitting day so that members can first read the report. I repeat what I said on 23 July: I will be guided in my actions by the committee’s report and the House’s conclusions on it.

I raise a point of order, Mr Speaker.

💬 Mr SPEAKER: I want to move on now. We have been discussing this for 20 minutes, and I think that is a reasonable go. It must be some new point of order.

It arises directly out of your statements. You said that Mr Duynhoven has not broken the law. The Privileges Committee has stated in a report, which has been tabled today, that, based on the advice of the Solicitor-General, there is a breach of section 55 of the Electoral Act. That is the breach of the law that engages you. The concern is this: your statement gives rise to the view that you do not think that there is a breach of the law—that is, a breach of the Electoral Act by Mr Duynhoven—and we on this side of the House then think that you therefore must have prejudged the situation. I would suggest, Mr Speaker, you need to reassure this side of the House that that has not occurred, given the clear finding of the Privileges Committee.

I want to give the members of this House an absolute assurance that every step I have taken has been after the fullest possible consideration with my adviser, whom I regard as the best of any in the world, and the most unbiased person whom I could ever get reports from. This reference to the Privileges Committee is not based on a breach of the law; it is about whether a seat is vacant. A seat can become vacant without any breach.