Points of Order — Electoral Act—Debate on Report of Privileges Committee

I raise a point of order, Mr Speaker. Yesterday there was a debate held on the report of the Privileges Committee, which was held according to a process set down by you some weeks ago. That process included a statutory obligation on your part to declare whether a vacancy had been caused as a result of the circumstances relating to the MP for New Plymouth, Mr Harry Duynhoven. Earlier on, you had said you wanted to listen to that debate before you made any declaration. The debate has occurred, and is completed. As I understand it, the record of the House shows that you have not commented in any way on the situation. I think it would be useful to the House if you could explain whether you intend to make any such declaration, and if you do not intend to make a declaration, what the reasons are for that. That is the first issue.

The second issue relates to a number of legitimate questions that were raised in the debate regarding a matter that is at the core of the privilege of sitting in this Parliament. They included questions about advice given to you and judgments made by you, and I would appreciate it if you could give some indication to the House as to whether you intend to answer any of the questions that were raised as part of yesterday’s debate, bearing in mind the fact that it was a debate you had sought, and one which you said you wanted to listen to before making any decisions.

You might conclude that the matter is now hypothetical, because of the Electoral (Vacancies) Amendment Bill, but I suggest to you that it is not, because there is still a question of the right parliamentary reaction. If you were to give a ruling, having heard the debate, that, but for that bill, you would have declared the seat to be vacant, that might result in other members of Parliament—of whom you must be aware—who may be caught in the situation, deciding that the honourable thing for them to do is to now resign. They need your ruling in order to know that, so I think that is desirable.

There has been some suggestion that this part of the Electoral Act is confusing. You will have heard the majority of the Privileges Committee say that it is not confusing, and that it is actually very clear. That is now a moot question, and I think we need a ruling from the Speaker. The House would like to know whether the Speaker thinks the issue is confusing or clear. Of course, if you do think it is clear, it is my view that a number of MPs will then realise what their duty is, too.

There is only an obligation if the Speaker believes that a vacancy has occurred. The Speaker does not rule on no vacancy. It is not legitimate to raise questions to the Speaker by way of debate, and no answer was called for. I do not give hypothetical rulings, now that the law has changed.

I raise a point of order, Mr Speaker. We just have the small embarrassment of the facts. I know that that might be regarded as a problem for the Parliament, but for most people, according to common sense, the facts of the matter have not been altered by the action that Parliament took in passing the legislation. The facts are that the qualification to sit in Parliament was breached, and all the official advice was that a vacancy had occurred. That was then retrospectively changed by the passage of legislation, but there is absolutely no doubt that the question of a vacancy arose. That cannot be denied. Given that the question of a vacancy arose in a technical sense, what the Government did with the legislation is irrelevant to your obligation under statute to deal with that question.

The facts raise the question of whether a vacancy occurred. If it is now your intention to ignore the facts, as if the passage of legislation obliterates all the actions that were taken by a member of Parliament, we need to know that, because I do not think even the Government would claim that the legislation states that Harry Duynhoven did not do what he did. The fact is that he did, and you have an obligation to let this Parliament know whether a vacancy has occurred. If your explanation is that there is none because the legislation has been passed, then we should hear that from the Speaker of the House. Up to this point, we have heard nothing from the Speaker, who is the final arbiter of whether someone is qualified to sit in the House.

The question of a vacancy—

💬 Rod Donald: I raise a point of order, Mr Speaker.

I do not need any further assistance. The question of vacancy arose and has been dealt with. There is no longer anything for the Speaker to rule on. It is up to members themselves, if they wish, to promote amendments to the Electoral Act, but not for the Speaker.

I raise a point of order, Mr Speaker. The problem with that answer is that members of this Parliament, and any future members of Parliament, will not know what the precedent is with regard to such a matter, or any similar matter that goes to the Speaker’s office. In my view, there was always going to be a window in time where the Speaker had to give his decision, and I said so at the time and during the debate. Your ruling on 23 July stated that you would wait upon the Privileges Committee and the House with regard to this issue. It cannot be that, because the Government has a device available to it that enables it to alter the outcome of this matter, no question ever arose before you as Speaker. To assert that is really to make an argument so narrow as to be ridiculous. There was always a time during this issue where the Speaker would have had to say that he had found that there was a breach, but events had overtaken it, and therefore it was of no future moment; or that there was no breach. But there cannot be no decision at all, so that anyone studying this issue is no wiser today as to what the proper course for the Speaker would be, what ruling to follow, or what precedent should be taken into account, than that person was before the event happened. I am putting the position in the most reasonable fashion.

Mr Speaker, I wish you to consider my concern about the reputation of Parliament and, indeed, the Speakership. When you look at Hansard, you will see that you have publicly told this House, not once but repeatedly, that you have sent the Duynhoven issue to the Privileges Committee because you wanted to hear from that committee. You then publicly told the House, not once but repeatedly, that once that debate was over, you would rule. You did not say that you would not rule if the Government legislated. In fact, you gave the House your word that you were not colluding with the Government, that you were not taking any notice of the legislation, and that after the Privileges Committee had completed its debate and made a decision, and you had heard from the House, you would give a ruling. I say to you that you are honour-bound, from the point of view of your reputation, to give that ruling. It may be a ruling that the Government and Mr Duynhoven might not like, but that is not a reason not to give it. The fact that it is now hypothetical is not a reason for the Speaker to withdraw a commitment he has given to the House. I am calling on you to honour the word you gave to me and every other MP that you would now rule.

I find myself in the unusual position of agreeing substantially with the previous three speakers. As a representative from the only party that supported the legislation, I would ask you, Mr Speaker, to take some time to think about giving a considered ruling, because, as Mr Peters said, in the future it would by very helpful for subsequent Parliaments to understand the process by which you reached the conclusion you have. I am not disputing your conclusion, but I think it would be helpful for you to set out—not just as a reply to a point of order, but in a formal statement—the process you went through in relation to the comments you made prior to the Act being changed.

On the issue of the so-called precedent effect, members need to remind themselves that for this Parliament section 55(1)(b) and (c) has been suspended, and the duty now on members is that they should not withdraw from their New Zealand citizenship—which they might have been able to do under the old section 55(1)(b) and (c). That is absolutely clear. It is equally clear that the Government and the Justice and Electoral Committee are expected to look at this issue, in order to produce longer-term solutions around what is broadly acceptable, and they will provide the law that will operate after this Parliament ceases. Therefore, there is no present effect arising out of the interpretation of section 55(1)(b) and (c), as the provisions were in force up until Friday of last week.

Further, Mr Speaker, you are being invited to do something that makes completely no sense at all. The undertaking you gave was an undertaking simply to listen to the advice of the Privileges Committee and the House. As you made it very clear, that advice was not determinative—whatever it was. At the end of the day, you would have had to determine whether a vacancy had occurred. You cannot now rule that a vacancy occurred, because, clearly, one has not occurred. The law was changed retrospectively and no amount of continued—

💬 Opposition Members: Ha!

There is no point in Opposition members being bad losers on this matter. The law was changed retrospectively. We have now debated that matter, I think once, twice, three times, four times, five times, six times in the House, and no amount of further debate will change the outcome.

💬 Rodney Hide: I raise a point of order, Mr Speaker—

The member will please be seated. He will please read the Standing Orders and Speakers’ Rulings. I have heard sufficient argument to rule. A question did arise, and it is being dealt with. There is presently no vacancy, and therefore there is nothing for the Speaker to rule on. Members have very good guidance—the Privileges Committee recommendations. The Speaker has a role only if there is a vacancy. There are currently 120 members of the House, and my judgment is that there is no vacancy at present.

I raise a point of order, Mr Speaker. The guidance I seek is as a member of the Justice and Electoral Committee faced with looking at legislation that says that the Speaker—as a trusted, neutral officer of this House—will, without delay, take some action upon realising a state of affairs in the House. If we are to look at that, as the select committee was asked to do, we need to know whether one of the first recommendations we should make would be to strip the Speaker of that role—if the Speaker cannot be trusted to do it.

Mr Speaker, by raising a point of order, we have now required you to make a judgment, and you have so made it. You have now said that there is no vacancy. The question of whether there was will, under this Government, takes us into the realm of quantum physics. But important guidance needs to be given to Parliament as to future actions. You will recall from the privileges debate that the whole issue of timing and delay arose because the law requires you, without delay, to declare a vacancy. If a member of Parliament should now be disqualified by reason, for instance, of a court action on contempt charges—which is possible for my colleague—[Interruption]—Nick Smith—

💬 Mr SPEAKER: The member will leave the Chamber. I said there were to be no interjections on points of order. The member knows it.

The Hon Nick Smith withdrew from the Chamber.

Mr Speaker, you will be aware that the MP for Nelson, Nick Smith, is subject to prosecution for contempt in our courts—a course of action approved by the Attorney-General. As a result of a successful prosecution, there is the possibility that a sufficiently strong sentence could disqualify him from sitting in this Parliament. We then have a circumstance where, with 2 months’ delay after that—as happened in this case—the Government could pass legislation retrospectively, absolving him from the consequences of those actions.

In the case of the Duynhoven legislation, the time you took to make your decision is a very significant issue. Because it took 2 months after the event before you even heard the privileges debate—2 months during which you did not declare a vacancy—it seems to me vital that the rest of Parliament understands just what the rules will be. Nick Smith MP might need to avail himself of that opportunity before Christmas. He might come to Parliament and say: “Well, I want 2 months from the event of disqualification, to give the Government time to pass the legislation that will keep me in the House as if no vacancy ever occurred.”

If the point were just hypothetical, I could understand you brushing it to one side, but it is not hypothetical. It is a real situation for an MP sitting in this House, in that there is legislation in front of this House that, if passed, would mean that his actions were not subject to prosecution for contempt. That is how close we are to that MP being free of those consequences. So I believe that you need to explain to the House what the rules are, now that in the Duynhoven case you have established that “without delay” does not appear to mean what the law says it means, that there will be reference to the Privileges Committee even if there are no grounds for that reference, and that despite the advice of the Clerk and the Solicitor-General that there was a vacancy, you decided not to declare one. That is why Parliament is very keen to hear from you, Mr Speaker.

As Leader of the Opposition, my advice to you is not to use the protection of silence. These matters did occur—even if the Government has legislated as if they did not—and Parliament knows that. You had a critical role, and in my view you are honour-bound, as my colleague Mr Prebble has said, to explain to Parliament what will happen now. If you are not willing to explain your past actions—and I take it from your ruling that you are not willing to explain to this Parliament why you let a disqualified MP sit here for 2 months—then please explain what the rules are going to be now.

There are three factual errors in that speech, all of which are quite important factual errors. There is no suggestion that you sat on this issue for 2 months, Mr Speaker. You received a letter from Mr Duynhoven, bringing to your attention the fact that he believed he might be at risk of having triggered section 55(1)(c) of the Electoral Act. Quite properly, you referred the matter to the Privileges Committee, because this House does have a role to play in terms of determining whether vacancies have occurred. It is a long, historical tradition. Indeed, if the member would care to think for a moment, he would remember that until very recently a motion in the House was required in order to trigger that process. But this House has long asserted its privileges with regard to its membership in that respect.

Mr Speaker, you indicated that you would not act until you had had a chance to consider the advice from the Privileges Committee and the House, and those rules are well understood. Indeed, Mr Prebble asked for an assurance from me that I would not introduce legislation until the Privileges Committee had had a chance to consider the issue. Had that not been the case, had you not indicated to the House that you were going to refer the matter to the Privileges Committee, the Government would have sought to legislate earlier. I have no doubt about that fact, at all. There is no question of collusion in this matter. We have the Government responding to your ruling in terms of the timing of its actions. So the 2 months is wrong.

Secondly, the member is wrong, and seriously wrong, in talking about the Attorney-General approving the prosecution. He is confused with the Solicitor-General, and the significance of that is extremely strong, indeed. The Attorney-General is a Minister of the Crown; the Solicitor-General is an independent legal officer. That was an error that needs to be corrected. Thirdly, you did not decide that a vacancy had not occurred. You have now indicated subsequent to the legislation that a vacancy has not occurred, because that legislation was retrospective. You have not made any decision, announced to the House, about what the position would have been had that legislation not been passed.

💬 Mr SPEAKER: Following strictly on advice I have received on all these matters, I want to say that I did not wait 2 months; the matter was raised with me only on 23 July by way of letter from Mr Duynhoven. My ruling is that there is reference to the Privileges Committee in a case of reasonable doubt only. There was doubt in the Duynhoven case. There was not, for example, in the Kelly case. I gave a detailed ruling last week about the processes I will follow in privilege issues, and that ruling I instructed to be given to all members of Parliament.

I raise a point of order, Mr Speaker. There is an unresolved point of order, and that is the point of order raised by Mr Franks. I too am a member of that committee, and I simply note that the issue is unresolved by ruling from you.

💬 Mr SPEAKER: I thank the member for that. I apologise. That is a matter for the committee, and I know the committee will take the issues that are raised into full account. That is its business, and it can do what it wishes. I do not give any direction to it.