Privilege — Electoral Act—Hon Harry Duynhoven

I move, That the House take note of the report of the Privileges Committee on the question of privilege referred on 23 July 2003. I am pleased to report to the House, as chair of the Privileges Committee, on the matter referred by Mr Speaker to that committee, and about which, of course, a large amount of debate occurred last week, resulting in legislation to amend the Electoral Act. The question was referred to the committee because a matter of privilege, as Mr Speaker ruled, was raised by the fact that the Hon Harry Duynhoven was possibly in breach of section 55(1)(c) of the Electoral Act. The matter concerned his Dutch citizenship and the effect that its restoration had on his right to sit in this House.

First of all, I assure members that the Privileges Committee, acting on behalf of the House in this matter, took the issue extremely seriously. Of course, as is shown in the report that has been tabled, a number of views came out of the committee’s deliberation. But those views—first of all, on the question of whether the seat of Mr Duynhoven was vacant, and then on the question of a recommendation to the House on what action should, or should not, be taken—reflected the complex matters before the committee. It was not necessarily the case that there was a right or wrong answer to each and every question that we considered, but it was a matter of ensuring that, when coming to particular conclusions, members paid attention to the evidence before them—the sets of facts that were agreed to—and then drew their conclusions.

The Privileges Committee is not a judicial body in the sense that a court is, but it is charged with paying accord to the law and also with acting in terms of natural justice. Natural justice, in particular, is important when any member of the House or the public is requested to appear before the committee, requests to appear before the committee, or, in some cases—which was not the case here—is summonsed to appear before the committee.

The background to the case is set out in the report. I want to say at this point that the question of breaking the law, which has been alleged and spoken of many times in this House in relation to this matter, was not an issue. Mr Duynhoven applied for the restoration of his Dutch citizenship, and that was a legal right. He breached no law in doing that, and no member of the committee said that he did. It is a fact that he did not breach the law. The question of whether the action that he took then made the seat vacant is also not a question of a breach of the law. The question for the committee, for the House, and, of course, for Mr Speaker, who makes the final determination under the law, was whether that action of Mr Duynhoven’s, once established, made the seat vacant. That, in particular, was the major question of interpretation before us in relation to the Act.

The committee spent some time in debating that. We heard evidence directly from Mr Duynhoven, and that was extremely useful in the sense of establishing a chain of events. We also heard from his counsel, Sir Geoffrey Palmer, on his interpretation of the law in relation to the taking of Dutch citizenship. We ourselves, as a committee, had the benefit of the evidence of the Solicitor-General and also of advice from the Clerk of the House. Added to that was other material that came to the committee—for example, the views of Professor Joseph of Canterbury University. [Interruption] The point I make is that we had written comment by Professor Joseph; I give that by way of an example. So the committee drew on a number of sources, plus direct evidence from Mr Duynhoven.

Then the committee deliberated on whether a vacancy existed. On that question, as members will know from the report, there was a division within the committee over the question of interpretation. In my view as the chair of the committee, the seven members who decided there was a vacancy because of the actions taken by Mr Duynhoven interpreted the law much along the lines of the advice of the Solicitor-General. But the right to make a decision means one does not necessarily have to follow the advice of one person or another, but one has to listen carefully to the advice that people put forward. Three members of the committee quite properly used their right to say they had arrived at another interpretation.

For the record, I say to the House this law is ambiguous in terms of its interpretation. As with the interpretation of any Act, there is a right—in fact, a legal duty—to consider whether it requires a fair, large, or liberal interpretation. The majority view was that the Act triggered a vacancy in the seat, and a minority said that they disagreed with that. From those positions that members had come to—which were still only advice to the Speaker of the House—the committee then looked at its recommendations. A majority was in favour of some legislation. Members can read the committee’s report and understand from it the basis of the views of those who favoured passing legislation.

Within the majority of the committee that favoured passing legislation, there was a majority and a minority position. The majority position within that majority was that the legislation should be for the term of this Parliament, and should cover all members who were either dual citizens or faced actions flowing from having dual citizenship, so that they would not make their seats vacant or, in the case of lists member, they would not have to resign and the next person on the list come in. A minority within that position, Winston Peters and Peter Dunne, held that while there should be legislation, it should be much narrower and take account only of the position of Mr Duynhoven. If I can summarise their position fairly, they accepted his position was one where the consequences flowing from his action—which I stress was not a breach of the law; it was not an illegal act—were out of proportion to what was fair and right.

The minority on the committee took the view that there should not be any legislation, and that the seat was vacant. They made it quite clear that they attributed no ill will to Harry Duynhoven in relation to the act he had taken, but they believed that the law should follow its course and the seat should be declared vacant. In summary, the findings of the committee on that point of recommendation to the House was a split one, with the majority being in favour of some form of legislative action, and a minority saying that, no, we should not enact legislation.

In conclusion, the Privileges Committee took the issue very seriously and went through its deliberations carefully. There was pressure from outside to reach a decision earlier than we did. The reason that we could not do so was that every member was going through the issues in a painstaking way in order to arrive, in my opinion, at a conclusion that they felt comfortable with, in terms of both the facts of the case and the law. Lastly, I believe that a service has been done to this House, because the debate on this case has opened up an area of law to public discussion with regard to what our policy should be on dual citizenship, what that means in terms of sitting in this House, and what we consider to be allegiance to New Zealand or to a foreign power. In my opinion, the Privileges Committee did a good job in advising the House. It is up to the House, or rather to the Speaker, of course, to make the decision. But the Privileges Committee, in terms of the reform of the Act, has now left that in the hands of a select committee, which now will be able to look closely at the Act and to consider what is good law in relation to election to the Parliament of New Zealand.

That chairman of the Privileges Committee will find himself quoted for decades to come as overseeing a charade. The Privileges Committee has gone to great efforts to give a cloak of credibility to the most obscene obstruction of the privileges of this House that I have come across since I have been in Parliament, and I believe that it is without precedent.

Mr Speaker, you will be listening very carefully to this debate, because it is the one you wanted to have before you executed your statutory duty. This is the debate we were meant to have before the Speaker made the decision about whether there was a vacancy. Of course, he knows that this debate is a total waste of time. He knows that the time he took to make the decision about the vacancy allowed the Government to pass legislation that made the Speaker look irrelevant, and made this Speaker, whose job is to defend the privileges of this House, look like he has less credibility than any Speaker before him.

Everybody knew that the Government was proposing legislation, so I have gone back and looked at the legislation. The Privileges Committee report stated: “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,”. So far, so good—apparently, but I will come back to that point. If there is real doubt as to whether a vacancy has occurred, Mr Speaker, you owe this Parliament an explanation as to the source of your doubt about the vacancy. That is the explanation members want to hear from you today, because the facts of the matter are plain. On 11 June Harry Duynhoven disqualified himself from this Parliament—on 11 June. On 12 June you knew. Within days you knew the Government would bring in legislation, if it had time to do it, before a vacancy was declared.

So I went back and looked at what the law states. Well, section 129(1) does not state what the Privileges Committee implies—that the matter has to go to the Privileges Committee—it just states this: “If the Speaker is satisfied that the seat of a member elected to represent an electoral district has become vacant, the Speaker must, without delay, publish a notice of the vacancy”. What do members think Parliament meant by this piece of legislation? Did it mean that the Speaker should take a month? Did it mean that the Privileges Committee has to sit? No, it meant that if the Speaker is satisfied that the seat is vacant, he must, without delay, publish a notice of the vacancy.

Well, Mr Speaker, what advice did you have from anyone, apart from the lawyer acting for Harry Duynhoven, that there was any doubt at all about the vacancy? You had no such advice. You owe this Parliament an explanation as to why you did not declare a vacancy, because there is one privilege that the members of this House do have that no other New Zealand citizen has, and it is not the privilege to be absolved from the consequences of breaking the law; the one privilege members have is to sit in this House. It is a privilege because it matters to the course of the law and the Government of New Zealand. It is the job of the Speaker to defend that privilege before any other.

Our constitution depends on voluntary self-restraint. There is nothing to prevent Helen Clark from doing what she has done. The person who can command a parliamentary majority in this Parliament can do whatever he or she likes, and in that respect we are almost unique in world democracy. She can do whatever she likes, including what we have just done, last week—pass a piece of legislation to elect a person to Parliament. That is what we did. We passed a piece of legislation to elect someone to this Parliament. That is why voluntary self-restraint is so important. It is why the conventions and integrity of this House are so important.

I have no doubt at all that Helen Clark got on the phone to Geoffrey Palmer and they jacked up some half-cooked, half-baked ideas to try to get a delay, to try to get this matter to the Privileges Committee, which, of course, would take some time to consider it. That would mean that the Speaker was not in a position where he absolutely had to declare a vacancy, even though he should have declared a vacancy. I have no doubt that is what happened, because Helen Clark feared a by-election in New Plymouth. It was not because she thought she would lose Harry Duynhoven—who knows—but because New Plymouth is a town on the beach, built on an industry that takes energy out of the seabed. Who would want to go up there and spend 3 weeks defending the Government position on who owns the beaches and the foreshore? Not Helen Clark, because she will not even do it in here. She certainly does not want to do it in the public eye, under media scrutiny, with the whole country listening to the trail of dishonesty and confusion she has tried to sow around that issue. [Interruption]

I raise a point of order, Mr Speaker. I have had almost consistent, uninterrupted interjection throughout my speech, and I now ask to be heard in silence.

💬 Mr SPEAKER: The member has asked to be heard in silence. He can do that.

Mr Speaker, we want an explanation. I suppose we will go through the charade of your declaring there is no vacancy, I suppose that is what will happen, but I believe that you owe Parliament more than that, because decisions were made where timing was absolutely crucial. Decisions have been made that determine whether someone is qualified to sit in this House, a privilege that I as the Leader of the Opposition and as a parliamentarian regard with deep respect. I have seen that privilege subordinated to partisan interests. That is what I have seen.

I would like to hope that the office of the Speaker was no part of it. That is why I want to hear the explanation. So here are the questions. Why did you not, without delay, declare the vacancy? Share with the House what advice you had from the Clerk and the Solicitor-General that gave you any reason to believe that Harry Duynhoven might not be disqualified. If that was not the case, then this matter should not have gone to the Privileges Committee. It was quite clear that Harry Duynhoven was disqualified. We want to know about that. Parliament wants to know whether there were any conversations, phone calls, notes, or meetings with senior members of the Government with regard to the timing of the decisions. There is absolutely nothing in the law or this report that dispels my understanding that the Speaker could have rolled out of bed the day after he knew about this situation and declared a vacancy. He could have done that. In the interests of the honour of this institution and the constitutional self-restraint that is so important to New Zealand, in my view that is what he should have done.

The report of the Privileges Committee is nothing more than an attempt to give a cloak of credibility to disgraceful episodes such as Margaret Wilson, the Attorney-General, taking a completely opposite view to that of her main legal adviser, the Solicitor-General. What does that say about the trust and confidence between New Zealand’s two senior legal officers? I will tell the House the truth: she knew he was right, but she had been told by the Prime Minister that the Privileges Committee had better deliver a confused report, if not a majority against any action that would lead to a by-election. That is what she did—the Attorney-General, the senior legal officer of New Zealand, who is there to defend the law and to make sure that no New Zealand citizen is put above it. But this Parliament put Harry Duynhoven above it, and the Speaker has to answer the questions.

I want to make a brief contribution to the debate on the Privileges Committee report relating to the application of section 55(1)(c) of the Electoral Act to the Hon Harry Duynhoven. I point out to the Leader of the Opposition that the Speaker of this House cannot be called into a debate to answer questions from him or anyone else.

I refer the member to the Privileges Committee report. His party was represented by very good members who made very good contributions to the debate. The report states: “Traditionally, the House has, as an aspect of its privileges, determined whether a person has incurred a disqualification from remaining as a member. Where a serious question of disqualification or of a member otherwise losing his or her seat has arisen, the matter has been referred to the Privileges Committee for consideration.” We have heard the most incredible amount of sophistry from somebody who has not bothered to read the report, and who has not bothered to be briefed by anyone who knows anything about the subject.

A significant point that I want to make is that Harry Duynhoven did not break any law. The act of his seeking to have his Dutch nationality restored is not a crime and it is not a breach of any law in this country. It does not offend a single law in this country. It is no wonder that some people wanted to put in an apologetic response to the Dutch community in case they were outed for showing that all they really cared about was making political points out of something that is a serious matter. The majority of the Privileges Committee, of which I am a member, determined that Harry Duynhoven’s action led to his seat becoming vacant by operation of the law. That is not breaking the law or committing a crime; it is simply the operation of the law on a certain action taking place. There are other actions that MPs can take whereby their seats become vacant. Being absent from this place for a significant period of time is not breaking the law, but it certainly does vacate the seat.

That advice was supported by the Solicitor-General. I did not agree with that advice, and I do not agree with the majority position in the report.

💬 Dr Wayne Mapp: Under whose direction?

That member is calling across the House, asking me whose direction I was operating under. I take incredible offence that that member should suggest that I have taken any direction from anyone on this matter. The Privileges Committee is unlike other select committees; it operates on the basis of individuals sitting round the table to try to reach the best possible result. My track record on the Privileges Committee, which is a heck of a lot longer than that member’s, will show that I have not always supported my colleagues on my side of that table when matters have gone to consideration of a position.

I preferred an interpretation of section 55(1)(c) that did not produce an absurd result. That is the key point here. The operation of section 55(1)(c) chosen by some people in respect of their interpretation produced an absurd result. The absurdity is that someone who can stand for Parliament three times with Dutch nationality and twice without, without even knowing that he had had it and had lost it, has somehow offended the democratic traditions of this Parliament. This Parliament states that people can stand for Parliament if they have dual nationality. If people carry two passports they can stand for Parliament. People need only have New Zealand citizenship.

Bill English said that Parliament elected Harry Duynhoven to the seat by passing the law that suspended the operation of two paragraphs of section 55(1) of the Electoral Act. That is absolute nonsense. We have given ourselves some time to do some real work on the legislation, so that we can make it mean what it should mean and what we intend it to mean. I do not believe that any Parliament intended someone like Harry Duynhoven to lose his seat in this House because he sought to have his Dutch citizenship restored. Harry Duynhoven was born with dual nationality. He was born a New Zealander and he was born Dutch. That is his status today. Nothing has changed. The only thing that happened in the interim is that he lost his Dutch nationality in 1995 when a law change in Holland took effect, and he then regained it after seeking to have it restored. It was restored to the position he has always held.

Harry Duynhoven gave evidence in the committee, and I believed him. He has never applied for a Dutch passport. I have read media reports stating that he has applied for a Dutch passport. He never has! He is a proud Kiwi with a Dutch tradition that he is equally proud of. [Interruption] I say to that member who is interjecting from across there that the point is that I have heard Opposition members make statements that are simply incorrect.

It is ironic that the law apparently does not treat Richard Worth the same way. This is a man who has agreed to represent Monaco’s interests in New Zealand as an honorary consul. National Party members say it is OK for him to do that. How on earth can Harry Duynhoven’s action in restoring something he held from birth attract a more serious consequence than the action of someone who represents another country’s interests inside New Zealand? Even when he is here in Parliament he is thinking of the interests of Monaco. Members opposite are engaging in what I could only describe as sophistry in saying that Harry Duynhoven is entitled to suffer a more serious consequence than Richard Worth, who has not even bothered to put his particular matter before the Speaker for a judgment call on whether he has vacated his seat. He has never done it.

Finally, what of the absurdities! If I had dual citizenship I could repudiate New Zealand citizenship after an election and not vacate my seat. We questioned the Solicitor-General on that, and he confirmed that that was the absurdity of the current law. The law states that if I had dual citizenship, and I repudiated my New Zealand citizenship after the election, then that would not mean I had vacated my seat. How on earth could Parliament have intended that? If I applied for British citizenship—I have a Scottish grandad, and my husband has dual nationality—even though the Queen of England is the Queen of New Zealand, and it is to her that we swear allegiance in this House, and even if my application were declined, I would have vacated my seat under section 55(1)(c). That is the nonsense of the current law. The law the way it stands is a nonsense, and it must be reviewed, not in haste but properly by the select committee looking at the Electoral Act.

I note that this section has been amended three times, twice to cover absences and both of those during wartime. The law was first amended in 1914 so that soldiers could leave Parliament and not offend against the absence rules. It was amended again later on, in the Second World War, so that Walter Nash could be absent from New Zealand and not offend the absence rules, which would have determined that he had vacated his seat. It was done again in 1981, and who was that for? I wonder who it was. Who got nationality from his wife? I wonder who it was. Maybe Mr Prebble could enlighten us.

My view is that section 55(1)(c) should not be interpreted in a narrow, technical way. The general public does not buy the sophistry we have heard from the desperate and dateless Leader of the Opposition. I believe we should now put this matter to one side. The Speaker will make his ruling, on the advice of the Privileges Committee and on the debate we have had in this House. I stand by my view that section 55(1)(c) was never intended to produce the result that it had in this particular case.

Mr Speaker—

💬 Hon Bill English: The member is a lawyer.

They say she is a lawyer, but there was no evidence of that in her speech. Richard Worth is an honorary consul to facilitate—

💬 Hon Lianne Dalziel: At least I pay my taxi fares.

The member would, but she would not know what the law of specific performance is about. If someone does not get a service, he or she does not pay—not in my book. But, then again, that member was pretty rough on the law, and that is why she was a trade union lawyer.

Richard Worth is a consul facilitating connections between two countries, and that is seen to be in New Zealand’s interests. This is the first time I have ever heard of that being a question of allegiance.

I go back to the facts here. The facts are that New Zealand First as a party is pleased for Harry Duynhoven and his family. We are pleased because an inadvertent act led to consequences that would be, in my view, a very, very harsh result for any member of Parliament. It had consequences well above the issue of whether there be a by-election; it simply meant that any right of payment of salary and future earnings was going to be affected, and in the case of superannuation be dramatically affected. I know that because I actually resigned from Parliament, and my seat went to a by-election, and those were the consequences. Of course, these people who rush to help now did not rush to help me then.

💬 Hon Annette King: You didn’t ask.

No, I am not in the business of asking the help of people who are breaking every law in the book, and who are on the Privileges Committee yet did not have the decency or the integrity to defend their rights, let alone mine. But they rushed off to London to defend the rights of someone who was not a member of Parliament. Do members remember that? Do not tell me who it was; I remember Mr Caygill and these people of the most dubious legal background, in terms of integrity and ethics, who would know nothing about the issue, and it is not a matter to be laughing at now.

But I want to say that in the case of Harry Duynhoven it was clear, in my party’s view, having heard the evidence, that there had been a breach of section 55(1)(c) of the Electoral Act, and that that was an inadvertent act the consequence of which would be very, very hard for a member of Parliament to have to live with. That is why we said we would support legislation to correct his position.

Let us follow the chronological sequence of events. It is said that on 11 June the seat became vacant—if the evidence stood up, of course. That is a good question. How would one come to that decision before hearing the evidence? It is possible that Harry Duynhoven could have come along to the committee and said: “Well, actually, I had a gun to my head at the time, and that’s why I signed the documents.” At that point, everything would have been satisfied for a breach, save intent. So that matter of evidence had to be heard.

But I say this to the National Party: when the Speaker made his decision, in the Speaker’s ruling on 23 July, that was the time to protest. That was the time to say: “No, no, we’re not having this. This matter is not going to the Privileges Committee, and it is not coming back to the House. We want the decision made now.” Our position was that, because of who it was and our understanding of, and respect for, him, we would like to hear the evidence. I will say this right now: if some members of Parliament had been involved, the answer would have been: “Forget about the Privileges Committee; let’s have a decision right now. If anybody has any doubt, send it off to the Electoral Court, get a case stated in respect of the outcome, as has happened before, and have the matter decided.” But one cannot, surely, accept on 23 July that the proceedings would go to the Privileges Committee and then to the House for its conclusions, yet make a decision before that event happened. To those who are seeking to attack the Speaker—Mr Speaker, I am sure you do not need me to defend you—I say that my simple facts are that members cannot have it both ways. If they accepted the resolution of 23 July, which came without demur, then they cannot say now that the Speaker was wrong.

💬 Hon Brian Donnelly: We don’t.

We did not—National, and those who would contest it. Then was the time to speak up or, in this sense, for ever hold their peace.

But I want to say exactly what happened. We agreed to regularise Harry Duynhoven’s position because there was a breach, but it was the most innocent one I have ever seen where the electoral law is concerned. We agreed that the law be exclusively changed for him. But what happened is far more serious. What happened is we had two lawyers and a historian on the Privileges Committee, and their body language spoke volumes. They knew full well that what they had heard meant there had to have been a breach, but they preferred to ignore that—just plain ignore it. There is a person on that committee called Margaret Wilson, the former dean of the Waikato University law school—that icon of academia in the minds of the people who attend there, and no one else. This person, the former dean of a law school, cannot see what everyone else can see, including the Solicitor-General, the Clerk of the House, and everybody else on the committee.

Then we had something far worse. We had a totally shameful abuse in that the Act was taken beyond Harry Duynhoven to include every member of Parliament, and to suspend its operations for the whole of this parliamentary term. We had a shameful abuse of Harry Duynhoven, a shameful abuse of his circumstances, a shameful abuse of the Speaker, in my view, and a shameful abuse of Parliament. That is where we have got ourselves now. Whilst every other leader is prepared to say that there is no one in his or her caucus who seeks the sanctuary of this legislation, Helen Clark would not. This person who front-foots issues, who spin doctors, who speaks about her leadership potential and puts herself alongside people like Fraser and Holyoake, this person who has more speechwriters and advisers than anybody else in the history of New Zealand’s Parliament, cannot tell the House what every other leader can say about his or her party, and that is that not one member of her caucus, other than Harry Duynhoven, is affected by this legislation, and therefore the blanket coverage is not necessary. That is an abuse of Parliament.

I am here today to ask Helen Clark who is the member or members, other than Harry Duynhoven, who were caught by this legislation. Name them! Have the integrity to place the facts before Parliament, rather than seek general sanctuary for every member of Parliament, although every other political party does not want it and disowns it! Until she can do that, then let us have the media stop this humbug, which Colin James is beloved of, of their reporting what a genius Helen Clark is. She is not. There has never been a leader so weak when she is going backwards. There has never been a leader so weak at parliamentary time—so much so that she avoids it day after day. She treats Parliament with contempt. There has never been a leader who cannot front-foot it in debate after debate on television, when the leaders debates ever happen. She has never won once, and she never will. It is all hype, public relations, and spin—so much so that even her photograph is unrecognisable from the real thing. Imagine if I tried that! Would I get away with it? No, I would not.

💬 Hon Richard Prebble: They couldn’t improve it.

Imagine if Mr Prebble tried that! He would be laughed out of town. Imagine if Mr English tried that! He would be laughed out of town. If Mr Jim Anderton tried it, he would be laughed out of town. But suddenly, for Helen Clark, anything can be done and the media excuse it. Do members remember when she went up to Brunei? She got off the plane and started going across the tarmac. Those people were waiting for her to get off the plane, because they had been a sent a photograph and the person who got off the plane was not the person in the photograph.

Do members remember the 1999 election campaign? She was putting up hoardings with her husband—a public relations stunt—and a little Māori boy was standing there. He looked at the picture and said to Helen Clark “Who’s that?”—out of the mouths of babes! [Interruption] What is it about? It is about someone who claims to be a leader but, on a fundamental question of integrity, honesty, and owning up, will not tell this Parliament whether anyone other than Harry Duynhoven is affected by this legislation. She has massively abused Mr Duynhoven, his family, the Speaker, and all of Parliament. Why will she not own up? When will some journalist do his or her duty and ask her?

Let me make some positive statements about the report before I am critical, because I think this whole matter has not reflected well on Parliament.

But let me also reply to an absurd charge. The reason I do that is that an absurd charge made last week has been repeated by the media as if it were a fact, so I thought I had better reply to that charge. No, I am not the member who had the law changed in 1981. The idea that Sir Robert Muldoon would have changed the Electoral Act in my favour is an extraordinary stretch of the imagination. I certainly have never received citizenship via my wife.

The other claim I want to correct is the absurd claim that the ACT party has said that it is wrong that anybody have dual citizenship. We have not said that. Indeed, I have come out of examining the Electoral Act believing that those who have gone before us, and who have re-examined this section eight times, are not silly. What the law states is that one is not forbidden from standing for Parliament if one has dual citizenship; what one is forbidden from doing is, once one is an MP, doing any act of allegiance. If one has dual citizenship and one does not use it, then it has always been that one is in the clear. When one thinks about it, one realises it is a sensible rule. There are many members of Parliament who have dual citizenship through no act of their own.

Mr Duynhoven originally had dual citizenship. He did not even know that he had it. I would be the first to defend him in that circumstance. Mr Duynhoven told the committee that he did it for his benefit and that of his children—not for his constituents and not for New Zealand—to enable them to travel around Europe. I guess he did it because he looked at this Government’s policies and realised that his children may need to live in another country.

💬 John Key: An insurance policy.

An insurance policy! He did not get up and say he did it for the benefit of the people of New Plymouth.

Let us say some constructive things about this report. The first thing I have to say about the report, which reflects very well on the Clerk, is that it is a very well-written report. I advocate that those people who are interested in the matter get a copy of it and read it. It is well set out, and the committee was able to agree unanimously to large parts of it. So I give credit there.

The second issue is that I want to give credit to the chairman of the committee. The House will not know this but I was opposed to Mr Matt Robson being made chairman. I thought it was a political gift from the Government, which was trying to find him a job—and maybe it was. But I thought he chaired the committee well, or tried to. He also did something that was courageous. As chairman, when asked the question of whether Mr Duyhnoven’s actions meant that the seat of New Plymouth was vacant, he was prepared to say that they did, even though he knew that answer would not be popular with our Prime Minister.

In that respect I also want to give credit to the Government’s other two partners. The Green MP turned up, and so did Mr Dunne. Both members started off by saying that it was all nonsense. In fact, at earlier meetings they had said that Mr Duynhoven was not caught. But when the Solicitor-General gave us very clear advice, and took us through the section to show that it was not confusing but was very clear, those two members had enough, I think, duty towards this House to come to the correct decision. I thank them for that.

I also thank Mr Peters. Mr Peters was in the position where he had publicly said he would defend Mr Duynhoven, but when he, with the help of, I think, Mr Dail Jones, actually looked at the law and at what Mr Duynhoven had done, both of them said it was quite clear that he was caught.

That is the duty of members of the Privileges Committee. Members of that committee do not go back to caucuses and ask for advice. The tradition of that committee is that it is here not just to uphold the privileges of this House but to uphold Parliament; to make sure that our rights that we have as a House are being followed, and that if MPs break those rights, regardless of their party they will be applied. That requires a commitment by MPs. Either we believe in Westminster democracy or we do not—and I do—and if we do, we have a duty to uphold it. I praise all those members who reached that conclusion.

Now I am afraid to have to get to the bits where I think we have, as a Parliament, been let down. But I want to give one bit of praise to the Attorney-General. The Attorney-General has the right to decide whether the committee can hear from the Solicitor-General. I asked her, and we did hear from the Solicitor-General. So we had private counsel. People would argue about it, but the Solicitor-General is the country’s top law officer, and I thank the Attorney-General, Margaret Wilson, for allowing us to hear from the Solicitor-General.

I am afraid that is about where the good things finish. There is a duty from the Attorney-General to this House and the Privileges Committee. No one believes that the Attorney-General actually thinks this section is confused. I do not believe for 1 minute that Margaret Wilson thinks that Harry Duynhoven did not fall under that section, and that the seat was not vacant. I say the same thing of Dr Cullen. Dr Cullen likes to tell us how clever he is, yet he is now telling us—clever as he is—that he could not understand a section of the Act that the Green MP could understand. It is not credible, is it?

💬 Rod Donald: She has a law degree!

I am not trying to be tough on her; I am just saying that if the Green MP can see it, surely Dr Cullen could.

Then we have Lianne Dalziel. I say to those worried about immigration that she claims to have a law degree, yet she said the section was confusing! I do not believe those members. To say that about members of the Privileges Committee is, from a parliamentary point of view, a devastating criticism. I think it goes to the heart of whether this Government has the moral authority to govern.

I do say to Mr Speaker, and I have said it before, that in my view he had no choice but to send the matter to the Privileges Committee, because Mr Duynhoven had said he did not break the law, and I think he still thinks that he did not break the Act. Well, this is a devastating comment, but why is he a Minister if he thinks that? I believe that, once we reported back to the House, Mr Speaker should have acted. It does not reflect well on us that we are now holding this debate.

The final criticism I have is for the Prime Minister. In our system of Government a Prime Minister is Prime Minister because he or she is elected by the whole House, and has the support of this House. The Prime Minister has a duty to report to us. This is not a minor matter. This is an important matter and the Prime Minister’s silence has been deafening. She has a duty to come down and speak. Her spin doctors told her to send down lesser minions to argue the case, and that it does not look good for the Prime Minister to argue for something that clearly is wrong. Well, if that is what the Prime Minister thinks, then she should not have done it.

The Prime Minister treats this House with contempt, partly for the reasons put forward by Mr Peter: because she cannot foot it in this House, she cannot actually reply to debate, and she has to hide behind a barrage of spin doctors. If that is so, then Dr Cullen ought to be Prime Minister. At least he was prepared to come down here to put a case, which is something we cannot say about our Prime Minister. That is something I have not heard said against any Prime Minister in my time in the House. Can any member imagine Norman Kirk not coming down to defend anything, or David Lange, or Geoffrey Palmer? Even on the Great Western Railway issue, he still would have come down and spoken. But Helen Clark treats this Parliament, democracy, and the country with contempt. This Government comes out of this report shamefully.

As a member of the Privileges Committee I had the advantage of hearing all the evidence that was put before the committee, Mr Duynhoven’s submissions on exactly what actions he took in respect of reaffirming his Dutch citizenship, and the legal submissions of Sir Geoffrey Palmer on the application of the Electoral Act and section 55(1)(c). The committee was also presented with advice from the Solicitor-General and the Clerk of the House. The Greens joined the majority of the committee who agreed that Mr Duynhoven’s action did lead to the vacancy of his seat. We were persuaded by the submissions of the Solicitor-General that section 55(1)(c), on its face, was clear, and that Mr Duynhoven’s actions did trigger the automatic legislative consequence, and that is that the seat was vacated. We were not persuaded by the arguments that because Dutch law would regard Mr Duynhoven’s citizenship as unbroken, therefore New Zealand law should also.

But equally, the Greens joined a different majority in the committee that agreed that the law needed to be changed, because the public policy behind it was, in our view, flawed, the law did not cure the mischief it was designed to cure, and because the consequences were disproportionate to the action. The Greens are strong advocates of changes to other legislation for exactly those reasons.

The primary principle for us in this case was that dual citizenship is an acceptable and legitimate personal state of affairs. It is absolutely essential that those who hold that right are able to exercise it, otherwise it becomes a nullity. For many thousands of New Zealanders entitled to dual citizenship, this is a very serious issue about the affirmation of a person’s heritage and genealogy, and the obligation to protect that heritage for that person’s descendants. The Greens support the exercise of dual citizenship and do not agree to the denial of that fundamental right. That is why we support, for example, the Western Samoan petition. We do not agree with the arbitrary deprivation of a person’s citizenship, those persons including MPs, and that is why, in our view, forcing Mr Duynhoven out of Parliament would have been an act of injustice.

Arguments from other parties in effect do challenge the commitment of MPs who hold dual citizenship and their commitment to our country. Surely, they do not mean to do that, because such an argument is a logical fallacy. It is an implication that simple affirmation of citizenship or nationality to another country that does not require the abrogation of New Zealand citizenship, presumes that a person is untrustworthy or suspicious, simply because of that nationality. Those members would accept that if an MP became a citizen of another country during a term of Parliament as a result of marrying a foreign national, that is OK, but they argue that the mere act of affirming one’s dual citizenship is an inherently treasonous act, and that by taking on a second citizenship an MP automatically renounces his or her commitment to New Zealand. There has been no logical or reasoned argument why that should be, in this case. That claim is completely unfounded and without any evidence.

We live in an increasingly ethnically diverse society. All New Zealand citizens are entitled to representation and to stand for Parliament as a representative. Any New Zealand citizen is entitled to stand for election to this House, including those who hold dual citizenship, but we fear that the logical consequence of the opponents’ arguments was that only New Zealand citizens who do not have other citizenship could be a parliamentary representative. In our view, that is xenophobic and completely undemocratic.

One of the obscurities that arose out of the Privileges Committee consideration was the fact that while an MP could not technically take on an additional citizenship, he or she could, none the less, renounce his or her New Zealand citizenship and remain an MP for the entirety of the term. Such a renouncement would not trigger the Electoral Act and would not require a by-election to allow the electorate to review the MP’s mandate to represent him or her. In our view that was farcical. The Greens are very pleased that the Government accepted our amendment to the Electoral (Vacancies) Amendment Act that an MP is required to remain a New Zealand citizen for the duration of his or her tenure as an MP.

One of the other anomalies that arose out of our consideration was that where section 55(1)(c) applies, an electorate MP whose seat has been deemed vacant can immediately stand again to seek another mandate from the electorate. The fact that the unseated MP can seek further mandate shows that the MP has not done anything illegal, but in an MMP environment, list MPs who are caught by section 55(1)(c) 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, we must remember that we are talking about a very serious consequence. After a general election every 3 years, the New Zealand community is asked to make some very serious decisions about who will represent them and their interests in the House of Representatives—a fundamental position of power in list democracy. The consequence of that section for a list MP is to be stripped of that responsibility, with no recourse to resume his or her seat, nor any recourse to the constituency that supported that representative in the general election.

We believe that a party’s list vote is indicative of both support for the party policy and support for the list candidates as representatives of a community of interest. In our view, a community of interest should not be accorded a lesser status. Section 55(1)(c) does not take into account the specific needs of an MMP environment, and, therefore, unjustifiably treats MPs differently.

There was some argument in the committee, reflected in the recommendations in the report, that legislation to remedy those anomalies should apply only to the disability incurred by Mr Duynhoven. We disagreed, and we support the majority decision that recommended that section 55(1)(c) be suspended for all MPs for the whole term of the Parliament. Legislation that is retrospective only, and which makes an exception for only one MP, undermines the very principle that we support.

Because the principle we advocate for is that dual citizenship is valid and acceptable, and that a member’s allegiance to New Zealand cannot be questioned simply because he or she is a citizen of another country, we could not support legislation that affects only one individual, nor could we support legislation that denies the right and opportunity, in the case of dual citizenship, of all other members of this House who are entitled to that citizenship to renew their passport, or take up that citizenship, during the period from now until the next election. That is because we do not consider that dual citizenship holds an inherent threat to this country. So we felt that those recommendations were not helpful and we did not support them.

Finally, in the end, it is our view that the report accurately reflects the submissions that were made to the committee, and the discussion of the committee.

I was a member of the Privileges Committee as well that considered the Duynhoven case and I would like to make some observations this afternoon about it and subsequent events. I do not believe that this was a case that, in the end, turned on whether Mr Duynhoven had taken out Dutch citizenship or Dutch nationality, or the status of that. However, for me, it turned on a very narrow point. We received evidence about the way in which citizenship or nationality—call it what one likes—is conferred by the Dutch Government upon those people whom it deems to be eligible. The argument mounted by some during the hearing that because of change in the law in Holland earlier this year, Mr Duynhoven was always deemed to be Dutch, even though it had not been his understanding that he had been so, is somewhat irrelevant.

I was prepared, as the evidence unfolded, to give him the benefit of the doubt, but the sticking point for me came with the indication by him during his evidence that following discussions initiated not by him but by the Dutch Embassy, he had formally applied to reactivate a status that he previously was not aware he had enjoyed. That was the point at which he rendered himself ineligible to remain a member of this House. Whatever other arguments could be raised about the rights and wrongs of the issue, the application of section 55 (1)(c)—or (b), or whatever paragraph under section 55 one wanted to quote—became irrelevant at that point, because Mr Duynhoven, in terms of the statute, had taken the action. I suspect, had the Dutch Government conferred upon him a status akin to citizenship or nationality, we may have found ourselves in a different position. He would have been the recipient of a decision, not the active seeker of a decision, and I think that the moment he actively sought to trigger that status, he then registered himself as ineligible. I am simply, for the benefit of the member who interjected, making the point that this turns, in the end, on a very fine distinction.

Having said that, I point out that the next issue that arose for me was the relevance of section 55(1)(c), and I made the point during the debate the other night that this section was passed originally in 1852 at a time when the world was a very different place. Mr Prebble scoffed at my analysis that it was a time when the United Kingdom—the British Empire, as it then was—stood alone against a hostile Europe, and interjected that my view of history was flawed because there had been no wars in continental Europe between the end of the Napoleonic era—the Battle of Waterloo in 1815—and World War I. I gently sought to remind him—and I have checked the history again since—of events such as the Crimean War in the 1850s, which was going on at the time this legislation was passed. The member opposite remembers it well.

There was the Austro-Prussian War, the Franco-Prussian War, the wars of Italian unification, the wars within the German states, right through to the advent of World War I. So my point was valid; this was taking place in a very different time from now—which has no bearing at all on the status of Mr Duynhoven but does have a bearing on the relevance of these provisions to remain in our law.

The next issue that arose, for me, was, to quote from Gilbert and Sullivan that famous line in The Mikado: “My object all sublime I shall achieve in time, to make the punishment fit the crime.” My concern was as to whether the punishment being inflicted upon Mr Duynhoven at this time was indeed fitting to the crime that he was deemed to have committed. In other words, he had rendered himself ineligible to remain a member of Parliament because he had initiated actions regarding his Dutch nationality, but did those actions of themselves then warrant the decision that he be deprived of his membership of this House? Upon reflection it became clear that whilst that was a point for some musing, it was one that was allowed a great deal of latitude by the legislation as it now stood. He was deemed to be ineligible and therefore his seat ought to be deemed to have been vacated.

It was at that point, as the chairman of the committee said earlier, that the “majority within the majority” argument came to pass at the committee regarding the action that should have been taken with regard to this situation. As was reported, a minority simply said that the law should take its course, and the seat should be declared vacant and a by-election held. A majority held that some amendment to the law was required to deal with this situation. I was part of the actual minority within the majority, which held that the amendment that was passed should simply deal with Mr Duynhoven’s position retrospectively; in other words, from the period between the actions that he took at the commencement of this Parliament, through until the date that the bill was passed by Parliament—I think from 14 August 2002 to 6 August 2003, from memory.

I was interested to hear the Green member’s comment, which I found somewhat unconvincing. The majority took the view that the Act should be amended not just retrospectively, to deal with past events, but also prospectively, to deal with future occurrences through until the time of the next general election. That causes huge problems, and it was the reason, in the end, that United Future found that it could not support the legislation that was being passed. What we were doing was creating a contradictory situation. On the one hand we were saying to Mr Duynhoven: “We understand your predicament. We understand that unwittingly you have placed yourself in the position where your membership of the House is nullified, and we are legislating to correct that action because we don’t think that the penalty that you are being inflicted with is merited by the crime that you are alleged to have committed.”

But at the same time—and here is the really strange contradiction—we were also saying: “But anyone else from this point on, until the next election, who wants to do precisely the same thing, with impunity, is protected herewith.” Despite many attempts to find a rationale for that prospective decision, we were all unsuccessful. We are still none the wiser as to why legislation had to be passed saying not just that Mr Duynhoven’s retrospective position was dealt with, but everyone’s prospective situation in this Parliament, right through to the next election, is dealt with. So poor old Mr Duynhoven suffers the ignominy of this whole saga, suffers the indignity of appearing before the Privileges Committee, literally to fight for his political life, while every other member of Parliament now can sit back, relax, go out and apply for joint nationality, citizenship or whatever, and be protected by the law.

That is, frankly, absurd. The sour taste in the mouth for me, arising from this Privileges Committee report, is not the way we have dealt with Mr Duynhoven—because we certainly have drawn to the attention of the House the anomaly of his position, and the need for the law to be reviewed and amended, perhaps, in the future—but we have the curious situation, which is, as far as I am aware, still unresolved by this debate this afternoon, where no one knows why the law applies right through to the time of the next general election.

Dr Mapp would agree with me. I see him nodding. I do not know what his nationality aims or objectives might be, but he and I could walk down to a foreign embassy tomorrow and inquire about citizenship, or nationality, or appointments, and we would be utterly protected despite the fact of the very restrictive provisions of section 55(1)(b) and (c). And no one is any the wiser as to what is being protected here.

So the suspicion immediately arises, and has not been knocked away, that this actually is not about Harry Duynhoven. He in some senses was the innocent fall guy who came along and has triggered a situation that is far wider in its context, and that Parliament has given a blanket protection to; and we as members of Parliament, who passed that law by a narrow majority, are still none the wiser as to the true intent and reason of it.

When the presiding officer referred this matter to the Privileges Committee—and I will leave aside the argument about his actions—he did so seeking some clarity from that committee. What he has got now, and what the country has got, is a small decision, in one sense in favour of Mr Duynhoven, clear and resolved, rightly or wrongly, but a much bigger, unclear picture in respect of everyone else in this House. It is the worst of all possible outcomes.

It is beyond doubt, and this is for the benefit of Labour members of Parliament, that Mr Duynhoven was in breach of section 55 of the Electoral Act—that is, he transgressed the Electoral Act. No one suggested it was a crime to apply for another passport. But what is absolutely clear, beyond doubt, is that Mr Duynhoven broke the law, and that law is the Electoral Act. The consequence should have been that the seat was vacant—the Privileges Committee found that that occurred on 11 June at the time of Mr Duynhoven’s application—and the next consequence should have been a by-election.

I have been listening to United Future and New Zealand First, which have both argued for narrow legislation for Mr Duynhoven on the basis that his actions were inadvertent, and that the consequences would be excessive. But in Australia whenever there is a breach of the Electoral Act that leads to a vacancy, there is only ever one result, which is a by-election.

Why is it that in New Zealand we now effectively have two standards of law, with one for Labour MPs, so that if they break the electoral law, and if they are in breach of their privilege to sit in this House, they can go to the Government and get a law passed in their favour? What kind of message does that send to those New Zealanders who will be appearing in court tomorrow? Will they now be able to say: “Your Honour, I may be in breach of the law, but I have written to my local Labour member of Parliament, and the Government will shortly pass a law that will absolve me of responsibility.”?

I can see that Mr Damien O’Connor sees that that proposition is absurd—and, of course, it is absurd, but that is exactly what the Government has done. It has established one set of laws for its recalcitrant members—and I say “members” deliberately, because the situation is as Mr Dunne has said it is: someone in that Government is being protected. Someone has never owned up. Someone has done something since the last election that rendered his or her seat vacant. The reason I say that is that, as a result of a discussion in the Privileges Committee, each and every whip was asked whether his or party had any members who were in breach of the law, and, with the exception of the Labour Party, each party was able to answer, no, it did not. But when that question was put to Labour members on the committee, they refused to answer.

Then the Government introduced legislation that referred to “vacancies”—being more than one; plural. It was disgraceful that this Parliament was forced to pass legislation last week that, on the face of it, protected a dishonest member, an unknown person. That brings everyone in the Labour Party into disrepute. I am sure that if Labour members thought about it, they could not possibly want that to be the outcome, but that is the outcome they have brought on themselves.

There is another point, and it involves the officer of the Speaker. Section 129 makes it plain and clear that the duty of the Speaker when a seat is vacant is to declare the vacancy, leading to a by-election. Last Wednesday at 1 o’clock this report was tabled in the House. One would assume that it is almost certain that the Clerk had given the Speaker advice of the report at 1 o’clock or shortly thereafter. The contents of the report are plain, the view of the Clerk of the House is plain, and the view of the Solicitor-General that was given to the committee was plain: the seat was vacant.

We on this side of the House have yet to be satisfied as to why it was that the seat was not declared vacant no later than Wednesday last week. Yes, a by-election would have been the result, but that is how our constitution works, and there is nothing wrong with that. That gives public confidence that the same laws that this Parliament passes apply to every single person in this country. But what we have is 52 members of the Labour Party who seek special legislation for themselves. I remind the House that every other party—with the possible exception of the Greens—asked to be exempted from the legislation, and that did not happen. The Government voted against that.

I will turn to the issue of the advice of the Solicitor-General and the Clerk of the House. The Clerk is widely recognised as the leading expert in this field in the Commonwealth. He has written extensively, and has written one of the major books on this. The advice of the Clerk of the House and the Solicitor-General could not have been more clear to members of the committee, yet we have an Attorney-General who has specifically rejected the advice of her senior legal adviser. It was not as if it was one of those cases where the Solicitor-General was saying: “Well, on the one hand, the law could be this, and, on the other hand, it could be that.” In that situation, it would be reasonable for the Attorney-General to say: “I choose this advice as opposed to that advice.” But the decision of the Solicitor-General was absolutely clear and emphatic, and I believe that, beyond all other members of Parliament, the Attorney-General had a duty to accept that advice.

There is something of a tradition whereby the Attorney-General sits slightly apart from other members of Cabinet, so that he or she can give independent, robust advice to Cabinet, but this Minister has failed in that duty.

I made an interjection to Ms Dalziel: “Whose direction?”. She can take exception to that, but she cannot be surprised by that interjection, when we have the spectacle of three senior Labour Cabinet Ministers—two of whom are lawyers—specifically rejecting the unambiguous advice of the Solicitor-General and the Clerk, and, for reasons that are totally obscure, saying that the law is ambiguous. Their actions bring this House into disrepute.

It is actions like this—with members debating this report days after the seat was vacant, and days after the report was tabled—that cause New Zealanders to say that the Government has one set of laws for itself and another set for every other New Zealander who has no choice. If we want to build our democracy, and build respect for the institution of Parliament, then it behoves all members to observe the law, and it is right that the consequences of the Electoral Act and the constitution should flow through, and if that means a by-election, well, so be it. The consequences would then be carried out in accordance with the law. Constitutions are about observing the law; they are not about the sort of jiggery-pokery we saw in this House last week, which brings our democracy into disrepute.

Motion agreed to.