Smoke-free Environments Amendment Bill

Mr Speaker, members have recalled you because they are concerned about the ruling that I have given that the Committee has been instructed to consider the bill part by part. I have ruled that the bill is drafted in three parts. Part 2, amongst other things, substitutes a new Part 1 heading in the principal Act. That Part 1 heading is an amendment to the principal Act, and not a separate part of the bill. Part 2 encompasses clauses 3 to 7A, and that is what the Committee has been instructed to consider.

I do not think I have seen a bill drafted as this one is, and in that sense I am in no way critical of the Chair, because the Chair is in the same dilemma as the House. The position is that the Committee has been given an instruction by the House to consider the bill part by part. It did not say to consider that some parts would be superior to others. If we look at the contents page we see that the bill has a Part 1, which contains clauses 1A and 2. The Committee dealt with that. We then see that there is a Part 2, which appears to be clause 3. Then there is Part 1, which contains clauses 4 to 7A; Part 3, which contains clauses 7B to 12; and then a Part 2A, which contains clauses 41A to 41F.

I put it to you that that is what the House instructed us to do. It is not for us to re-rationalise the parts and decide that some are more important than others. The House cannot know that, either, because it has not considered that matter. The second point is that the Chair, given a choice, should always take the choice that enables the Committee to have the maximum ability to debate the issues, because otherwise if we did not have the part by part resolution we would be debating the bill clause by clause.

The only rational reason I can think of for deciding that Part 2 counts, and Part 3, is that there is some rule about taking parts in numerical order. Well, of course, that cannot be so because we have Part 2A at the end, after we have dealt with Part 3. So on the face of it, I believe that you should rule that the Committee must follow the instruction of the House, which is to take the bill part by part. The bill has a Part 2, which is clause 3, and then a Part 1, which is clauses 4 to 7A. There is a Part 3, which is clauses 7B to 12, and then Part 2A, which is clauses 41A to 41F. Not taking the bill part by part would enable the Government, just by an instruction to the law draftsmen, to completely defeat the ability of this House to have a proper Committee stage.

I support what Mr Prebble has said. But I would add two further points. The first is that this issue has substantially arisen because of the determination of the Chair, in the Committee stage, to try to close down this debate. If there had been a free-ranging debate that had perhaps a greater degree of liberality, the point would not have arisen. The second point is that there was a clear ruling by the Business Committee, which perhaps has now an element of ambiguity, with the element of hindsight, that the debate be part by part. It is that ruling that has given, it seems to me, the supporting basis for Mr Prebble’s argument.

💬 Mr SPEAKER: Did the member say “the Business Committee”?

Well, I may be wrong on that. It may have been a decision of the House.

💬 Mr SPEAKER: It was. The Business Committee has no relevance.

Yes, it may have been a decision of the House, and I am wrong in that regard. But the substantive point remains that this was to be a part by part debate, and that is what gives strength to Mr Prebble’s argument.

I want to make two points in support of the submissions made by both Mr Prebble and Mr Worth. You may be tempted to the conclusion that was offered by the Chair in the Committee, but if one looks at the contents pages of the bill, under the heading Part 2, “Amendments to Part II of principal Act”, is the heading Part 1, “Smoke-free workplaces and public areas, and similarly Part 3, “Other amendments”, has the subheading Part 2A, “Powers of enforcement officers”, one concludes that these are the insertions of new parts within the bill. So therefore the principal three parts remain.

But I would suggest that if you were to come to that conclusion you would not only be seriously in error, you would also be in breach of Speakers’ rulings. I want to share with you a ruling I am sure you know well—Speaker’s ruling 77/1 by Mr Speaker Burke, which states: “Apart from a few provisions in the Standing Orders, no direction is available about the form in which a bill for introduction is to be drafted.” He then makes some comments in respect of amendments. The ruling goes on to state: “In the absence of a precise definition in the Standing Orders of the form of a bill, the Chair cannot move to control the drafting of a bill.”

My submission to you is that Mr Speaker Burke’s ruling suggests that the definition of what constitutes a part of a bill is, in fact, not clear. So you cannot argue, as the Chair of the Committee of the whole House attempted to, that Part 1, “Smoke-free workplaces and public areas”, and Part 2A, “Powers of enforcement officers”, are merely subparts of a part of the bill. They are parts in their own right. The Speaker has ruled previously that he is not in a position to determine the nature of the drafting of a bill.

So my first point to you is that you have no option but to uphold the point of order raised by Mr Prebble, which means we would then go back to the Committee of the whole House and have a brief debate—and that is the second point I want to raise—upon what purports to be Part 2, before reporting back on Part 1, then Part 3, and then Part 2A.

The second point I want to raise is to draw to your attention a comment that was made by the Associate Minister when this matter was raised in the Committee of the whole House. This, I think, has some quite serious implications. The Associate Minister told the Committee, when Mr Prebble first raised the point—and this is a paraphrase of his words—that in effect we have had a wide-ranging debate on Part 1, and the deal was that that debate could take place and we could basically get all the issues out of the way there, and then we would proceed. The inference I took from that was a clear direction being offered by the Associate Minister to the Chair as to the way in which the subsequent nature of the debate on Part 2, Part 1, Part 3, and Part 2A was to be conducted.

That is serious enough, in the course of ordinary events. But this is a member’s bill, being dealt with by most parties in the House on a conscience basis. And here was a Minister seeking to give direction to the Chair as to how many speakers should be allowed on a bill on which there is contention anyway, and there is now contention about the nature of the drafting of the bill. So I think we do have a serious situation, and I do not think there is any real alternative but for you to rule in two ways: firstly, to uphold Mr Prebble’s point; and secondly, to make it clear to the Committee that the widest-ranging debate possible ought to be permitted on this issue, given the confusing and bewildering way in which the original bill has been drafted.

I want to refer to the last point the member made. I agree with him that there must be the widest possible debate on this particular area. The Speaker cannot control the way in which a bill is drafted—Speaker’s ruling 77/1. An instruction to take a bill part by part relates to the parts of the bill that are before the committee. The parts of this bill contain within them parts to be inserted in the principal Act. These new parts are not considered to be parts of this bill. It is not uncommon for parts of bills to insert new parts in the principal Act. That can look confusing, I agree. I did rule earlier this year that the insertion of new parts in a principal Act is a factor for the Chair to take into account before accepting the closure, and the Chair should do that here. Mr Prebble’s principle that the Chair should prefer more debate, if given the choice, may be correct, but here the Chair has no choice. Further to Mr Prebble’s remarks, there is a rule that provisions are taken in sequence—Standing Order 296—unless the committee decides otherwise. I come back with my last point and say to the Hon Peter Dunne that there must be a very full and wide-ranging debate.

In Committee

Part 2 Amendments to Part II of principal Act (continued)