Injury Prevention, Rehabilitation, and Compensation Amendment Bill

Mr Speaker, during the Committee stage we had a number of amendments in the name of Steve Chadwick to amend clause 2. These amendments seek to change the commencement date, and there is a whole sequence of them. The first amendment seeks to delete “1 July 2010” and insert “1 November 2010”. The next amendment seeks to insert “31 October”. We then move from 31 October to the 30th, the 29th, the 28th, the 27th—a very good day in October, I might add—the 26th, and we go on. We tested the Committee on the first amendment, and the Committee defeated it. I then ruled that the rest of the amendments were out of order. I ruled them out of order on the basis of Erskine May’s Parliamentary Practice, page 401, which states: “An amendment is also out of order if it is inconsistent with an amendment already agreed to, or if it is substantially the same as an amendment to the same motion which has already been negatived.” I ruled that the amendment to insert “31 October” was substantially the same as the amendment to insert “1 November”, as was the rest of the sequence of amendments.

The Opposition has claimed that in doing this I am stopping its right to move amendments. I do not think I am, at all. Opposition members are still free to move their amendments. I think the ruling I have made is consistent with previous Speakers’ rulings.

The other matter raised by the Hon Trevor Mallard is that, in actual fact, the House has not had the opportunity to test the dates. My response to him was that the House has already seen this legislation at its first reading. It has been to the select committee, which has also considered the matter of the date. The bill has come back for its second reading, and the House has passed it on all three occasions. In doing so, the House has determined that the legislation in general, including the date, is suitable.

In my opinion, the Committee has the ability to consider these amendments, and I would have thought that if a member had an amendment to make to the date, there would be quite a substantial amount of discussion on it during the rest of the Committee stage, because points in parts of the legislation turned on this. I did not hear that. I would have thought that if there is to be an amendment to the date, there would be a range of arguments that said that changing the date was substantially important, because of these reasons. I did not hear that. I felt that the Committee was being tested piece by piece, and that there was no substantial difference between one amendment and the next one. I have accordingly ruled out the amendment. I may wish to come back to you with some other comments later, but that is the essence of the situation as I understand it. I am sure you will hear from both Opposition and Government members as to their views on it.

Thank you for returning to rule on this matter. It is an area of incredible disappointment to the Opposition in respect of the treatment of Opposition amendments to this legislation. It falls into two areas, but it is based on the idea that the only ability that an Opposition has to rely on, through our Standing Orders and Speakers’ rulings, is the ability to make speeches in opposition to legislation, or to propose amendments to offer alternatives to the Committee or to the House—in this case, to the Committee—in respect of legislation before it. Taken to their extraordinary extent, this could see the Parliament ground to a halt, as both the Chairman and the Leader of the House have said while we were debating this issue previously. But that does not happen, because although the rules might allow for an enormous amount of material to come by way of amendments, points of order, or seeking leave to table documents, for example, those things do not happen because there is a relationship between the Government and the Opposition that allows the smooth passage of legislation, within reason.

Occasionally, that relationship does not exist and the Opposition has to use what is available to it in order to make its point. For example, if there is an inability to ask Ministers questions at question time, the Opposition has to use its only tools, which are protected in its Speakers’ rulings and the Standing Orders, and for which you have a responsibility as the protector of the minority in your position as Speaker.

I know that you commented at the end of last year about the number of amendments on a particular piece of legislation, but that was within the context of bills never having been seen before by the Opposition, the extended use of urgency, and things that impacted from a wide variety of angles on the proceedings and good management of the House, either by actions from the Government or actions from the Opposition.

There are two points. The first is the issue of the use by the Government of the Standing Order for fiscal aggregates. There was a discussion earlier, and I want to briefly bring you up to date with that—

💬 Mr SPEAKER: I urge the member to stay focused. I have not yet actually heard the particular point of order that I have been recalled to rule on, and fiscal aggregates is not the matter that, I understand, is currently the procedure that has been delaying the Committee. I urge the member to focus on the issue of order that he wishes me to rule on.

Thank you, Mr Speaker. I am sorry. That will be a matter about amendments that we do quite genuinely wish to take up with you. But let me come to the matter for which you have been recalled. It is the ruling out of amendments that of themselves are in order that have been submitted by members—in this case by the Hon Steve Chadwick and Moana Mackey. After the first vote on the first amendment, the Chairman then moved to rule out all subsequent amendments. There is an argument about whether they are substantially different; I know Mr Mallard has a view about that.

But the reason I wanted you to be recalled is that it is our view that amendments must stand on their own merits and that if there is the ability for an Opposition to put forward an amendment, that amendment itself should be judged, regardless of what other environmental factors are going on that day with regard to how many amendments there are. An amendment must be considered by the Committee, regardless of how many other amendments there are.

I can give you a very recent example of that, from 13 March 2007, on the child discipline legislation. There were amendments to change the commencement date of that bill once it had received its third reading and its Royal assent, which would change the date on which it would become law. There were many, many amendments that shifted out by a number of months the date when that legislation would come into force. All of those amendments were accepted by the Clerk’s Office and were put to the House. It is all available in the Journals of the House. The only time when that was interrupted was when the Government chose to support one of the amendments, in order for the other ones to become inconsequential because a decision had been made by the Committee. The Committee of the whole House has faced exactly this sort of situation before, and it has upheld the process of its rules to allow the Opposition to be able to take those amendments through.

Our argument is that, if these amendments are simply wiped out because they are considered to be similar, then that takes away a right of the Opposition to signal its disagreement with legislation. But also, in the position where the Government is a minority Government, the Chair cannot possibly know whether, further down the list of amendments, there is a majority for a different date. I guess that is where Mr Mallard will comment on the substantially different argument, because in these amendments there are differences that are spread over many years. It may well be that in the position where the Government is in a minority, as it has been since 1998, there will be a time when one of the amendments might be successful. It seems wrong to me to rule one out, or to rule them all out, on the basis that the first one happened not to be accepted by the Committee.

I will end by reiterating what I said at the beginning, that an Opposition has very few protections in the Chamber, and to ride over the top of those because on a particular day it happens to be inconvenient due to the amount of work, by way of the number of amendments that has been put forward, is quite wrong. This is not something that happens regularly in our Parliament. There is a self-correcting mechanism to the whole thing, and I think that it would be wrong to take away the last protections that an Opposition has when we are in the Committee of the whole House in a minority sense.

Before I call the next member, I urge members, in making points of order, to keep them terse. These are not speeches. I realise that members are covering issues that are interesting territory, but I would ask members to keep their point of order brief.

My colleague has outlined the issue very broadly, Mr Speaker, and I would prefer to make just a couple of very specific points.

There are three points that I want to make. Erskine May is quite clear. If there were a lack of precedent in New Zealand, that would be the fall-back position, but there is some precedent for this sort of amendment being accepted. My colleague has referred to one instance, and I think that if you cast your mind back, you would remember that this procedure has been used in the past. Generally, it has been negated by the Government; the Government has moved, in the way that it can in the Committee, to shift the day, sometimes by only 1 day. In that way, it means that none of the further amendments can be considered.

I disagree with the Chairman’s suggestion that amendments can be made at the first and second readings in this House. This House, as a full House, has not had the opportunity to look specifically at that question. This is the time for any amendment to be made. The Chairman is quite right that the select committee could have considered it, and possibly, if the House was of the mind to, then the House could have sent it back to the committee after the report back in order for the date to be reconsidered. But this is the first time that this matter has been specifically addressed.

My point, essentially, is that Erskine May is a fall-back position that I can accept. My view differs somewhat from that of my colleague in that I think that amendments shifting a date day by day are amendments that are substantially the same. But where there are big gaps between the start and the end point and a wide range of options, my suggestion is that the proper thing to do would be to rule many of the amendments out—I could even say most of them, or three-quarters of them—but there is enough difference between some of these amendments, if we accept the “substantially the same” argument, for a range of them to be put to the Committee.

I know that the ruling being given here is one that will, no doubt, appear in a green book in the future, one way or the other, because we are into unprecedented territory, and it is my view that in doing so, the Speaker should make a ruling that protects the very few rights that the minority has, as long as the minority is not being totally unreasonable. I can accept that putting all of these amendments to the Committee would be totally unreasonable, but that does not mean that all of them should be ruled out.

Mr Speaker, I think that in the opening remarks made to you by the shadow Leader of the House on this issue, there was a little bit of a betrayal about why we find ourselves in these positions, and I say this only because those remarks went unchecked for quite a long time. The reality is that I understand his disappointment, but there we are: we are in this situation. I want to—

💬 Mr SPEAKER: I just urge the honourable member, please—the contributions have been of good quality, and I do not want to see a deterioration of this procedural discussion under points of order. It is an important procedural issue, and I ask the member to respect that.

It is indeed a very important procedural issue, but I would ask that you check the Hansard just to assure yourself as to that quality in relation to the opening statement from the shadow Leader of the House. I think that two Speakers’ rulings are relevant here. As well as the conclusion reached by Chairman Rick Barker this afternoon, which I strongly support, there are two Speakers’ rulings, 112/6 and 113/1, that are also relevant.

The first one goes to the issue of relevancy. The most important point there is 112/6(4). The issue has been ruled on by Speakers continually over a long period. I note that obviously there was a problem with this sort of thing in the late 1800s and early 1900s, but the point remains that if an amendment is in conflict with the provisions of the bill, then it is not relevant. Further, coming to Speaker’s ruling 113/1, that ruling states: “A bill can be amended only in ways that are relevant to the text. It cannot be turned into something that it is not, and did not start out as.” The text reference in that ruling is most important, because we are repeatedly reminded in this House that there are occasions when the courts will turn to Hansard debates, select committee reports, and a range of commentary on the passage of legislation through this House for some guidance as to how it should be read.

I would suggest that it has been abundantly clear for a very long time that this legislation is to commence on 1 July 2010 and to have its effect from that point. We know that there is a need to have some provisions in this bill dealt with by 1 April as well, so that the people dealing with it have a fair and reasonable amount of time before that. To accept a series of amendments that of themselves do not substantially change the initial intention of the preceding amendment, and to let that run out for some thousand amendments—or, in other words, nearly 3 years’ worth of date changes—I think contravenes the idea that it is not turning the bill into something that it did not start out as. I think that it is also in conflict with the provisions and the purpose of the bill in the first place.

As to the issue of there being no certainty about the voting support for any one amendment or another, that would be assuming that in the few intervening seconds between a vote being put for one date and a vote being put for the next, an entire Government coalition could deconstruct and there could be some sudden change that no one in the Chamber knew about. I think that is an implausible position, and it is an argument that cannot be run too strongly. But on those other two longstanding Speaker’s rulings, I think that the conclusion reached by Chairman Barker today is the correct one.

💬 Mr SPEAKER: I will accept the Hon Dr Nick Smith, as long as he is brief. Interesting issues have been raised and I am ready to rule on the matter.

As the Minister in the chair, I want to make a brief point. In the sense of the relevance of Parliament, I would suggest that this is a bit of a try-on. We have 1,066 amendments tabled, most of which shift the commencement date by 1 day. If the House were to allow every one of those amendments to be put, it would take 15 or 16 hours of the time of the 122 members of this House, a House that costs over $15,000 an hour to run, being spent not on debate. New Zealanders expect issues to be robustly debated in the House, and I welcome that. But as a pragmatic speaker who has been interested in the quality of this institution of Parliament, serving the interest of the public at large, I ask whether that interest is best served by spending 15 hours on amendments that would vary the commencement date by 1 day.

The second point I make is in response to those that have been made by Mr Mallard, who said that what the Government needs to do is move the very first amendment to change the date from the date that is in the bill, and that way, if that is agreed to, then the procedure is quite OK.

My response to that is if that is to be the procedure of the House, then that says to Ministers that they should introduce a bill to the House without its intended commencement date, then bring it in, confusing the public and everybody, and then, when we get to the Committee stage, move an amendment to shift it. In terms of the public purpose of this Parliament for the people of New Zealand, I ask how that procedural approach would help the relevance of this Parliament. We would get people submitting on a bill that does not have the date that was intended because we Ministers were forced into a position of cute amendments during the Committee stage to overrule what is nothing more than a sophisticated mechanism that is being attempted to create a filibuster of voting. That is why, Mr Speaker, my plea to you is to support the Chair and for common sense to prevail.

I thank honourable members for a very interesting procedural discussion under point of order. I agree with the Hon Trevor Mallard that we are in territory without clear precedent in New Zealand’s parliamentary practice; therefore, it is important. That is why I have listened very carefully to the points being made. I think very good points have been made by both sides in the last few minutes.

I assure the Hon Darren Hughes that my thinking in this is certainly not governed by the number of amendments in itself. There could be any number of amendments that are different from each other to a piece of legislation. Opposition members, or any member, have the absolute right to put amendments that the Committee has not already decided upon. That is not the crucial issue. There are more substantive issues involved in this particular ruling that I am about to make. I think the crux of the whole thing comes down to the issue, which was recognised by the Hon Trevor Mallard, that, if we look at what has been the practice in New Zealand in the past, as was mentioned by the Hon Dr Nick Smith, we see that when the Government—usually it is the Government—moves an amendment to a date and the Committee votes on that, once that is accepted then any other amendments are ruled out. We have had that as a clear precedent in New Zealand.

What has not been such a clear precedent in New Zealand, and this is an issue that I am going to rule on at this stage and suggest a way forward for, is the other side of that mention in Erskine May, which the Chair, the Hon Rick Barker, has emphasised, and that is that Erskine May also emphasises that a Chairperson has to also consider the admissibility of amendments that are substantially the same as an amendment that has already been negatived by the Committee. That is something that has not been our common practice in New Zealand, I think it is fair to say. Yet what the Hon Dr Nick Smith pointed out in his point of order is that in the past, our not having accepted that practice has led to a fairly unsatisfactory situation whereby it may lead to the Government doing exactly what the member suggested, which is leaving out a date so that an amendment can be moved by the Government to put a date in and any other dates are then ruled out.

I think the Hon Trevor Mallard has made an interesting point in accepting the basis of Erskine May’s advice on page 401. The Hon Trevor Mallard pointed out that the issue is what is considered to be substantially different, and he pointed out that when it comes to dates, 6 months’ difference is substantial compared with a difference of 1 or 2 days. I make it very clear to members that I will rule in favour of the Chair’s position on this. The Chair has found that the amendments are not admissible because the Committee has already negatived an amendment that is substantially the same as those other amendments. Therefore, the Chair, the Hon Rick Barker, has ruled them out, and I will support that ruling.

In doing so, I suggest to members that this matter be looked at further by the Standing Orders Committee. I think that what is different in our practice from the practice at Westminster is that at Westminster the Chair can select, from a range of dates, two or three amendments that are substantially different, and test them. Once they are tested, the rest are out. It may be that we should look at something similar. In our procedures in this Parliament, we do not have the ability for the Chair to choose, from a lot of amendments that are very, very similar, some that could be considered to be different. I think it is something I would like to have the Standing Orders Committee look at for the future. As Speaker I am genuinely concerned in the interests of the minority, and that would overcome any concerns about the Chair deciding what might be substantially different, because then the Committee would have decided that, in the matter of two or three amendments that could be voted on in a reasonable space of time, and that would then resolve that matter so that the Chair is not having to make that judgment totally on his or her own. That is what I want the Standing Orders Committee look at.

But at the moment I am ruling in favour of the position adopted by the Chair of the Committee, which is that because the Committee has already negatived an amendment that is substantially the same as these further amendments, they are ruled out. I thank all the members.

I raise a point of order, Mr Speaker. I speak not in any way to litigate your ruling; it is in one that I think we will consider carefully, and I hope the Standing Orders Committee does as well. I seek leave for there to be a question time at 2 p.m. tomorrow, 25 February on outside time, with the normal arrangements for the lodging of questions.

💬 Mr SPEAKER: Leave is sought for that course of action. Is there any objection? There is objection.

I raise a point of order, Mr Speaker. I did not hear objection. I saw a nod, but did not hear a word.

💬 Mr SPEAKER: There is a concern about whether I correctly ruled on the matter. I am very happy to put the leave again. Leave is sought for that course of action. Is there any objection? There is objection

I raise a point of order, Mr Speaker. I want to make it very clear that we are always open to negotiate these matters with the Opposition, when it behaves—

💬 Mr SPEAKER: I am not sure—

That was just playing politics.

💬 Mr SPEAKER: I am on my feet and that was not a point of order. The member is perfectly at liberty to negotiate with whomever he wishes, but that was not a point of order.

I declare the House back in Committee in consideration of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill.

In Committee

Debate resumed.

Clauses 1 to 3 (continued)

The question was put that the following amendment in the name of Moana Mackey to clause 2 be agreed to:

to omit from subclause (2) “on the day after the date on which this Act receives the Royal assent” and substitute “1 November 2027”.