Injury Prevention, Rehabilitation, and Compensation Amendment Bill

I raise a point of order, Mr Chairperson. It relates to Standing Order 320, which requires that amendments to bills that can affect or have an impact upon the Government’s fiscal aggregates need to be lodged with the Clerk at least 24 hours before they are considered by the Committee. New Part 3 and, I believe, subsequent parts do not meet that test, and most certainly do have an impact on the Government’s fiscal aggregates.

💬 Hon Member: How so?

It is the fiscal aggregates of the Government that we are talking about.

💬 Hon Member: Rubbish!

I am reading from the Standing Orders of the House of Representatives. Standing Order 320(1) states that an amendment that may have an impact on the Government’s fiscal aggregates—[Interruption]

The CHAIRPERSON (Eric Roy): Points of order will be heard in silence.

That will be novel for those people. An amendment that may have an impact on the Government’s fiscal aggregates etc. must be lodged with the Clerk at least 24 hours before the House meets on the day on which the amendment is to be proposed. This part does not meet that test.

I presume this matter can be dealt with relatively quickly. “Fiscal aggregates” is a term that has been used on a number of occasions for a long period of time, and any suggestion that a change as minor as this one would have an effect on the fiscal aggregates of the Government goes to the point of being absolutely ridiculous. The effect would be within the margin of error—1 percent of the size of the fiscal aggregates of the Government. There is, clearly, an ability to veto on the part of the Government, if in fact that is the case. That, again, is something where no Minister of Finance would ever pretend—is the Hon Gerry Brownlee an Associate Minister of Finance?

💬 Hon Darren Hughes: No, economic development.

He is the Minister for Economic Development. No Minister of Finance would ever pretend that this amendment would have an effect on the fiscal aggregates, because it is such a small number. For example, if the member had moved an amendment to bring forward the close-off date from 2019 to 2015, there might be an argument that that would affect the fiscal aggregates of the Government. It might or it might not; even a number of that size might not. But this amendment is so minor that when the Government’s spending is brought together—aggregated—no one could pretend that it would have an effect.

The point of order raised by the Leader of the House ought to have to been raised at the beginning of the debate on this part, when the amendment was first moved. Instead, no point of order was taken, the Chair accepted the amendment, and debate commenced.

I thank members for their contributions. I think there are four points that I can see arising out of this point of order.

The first point is enshrined in Standing Order 320, and in Speakers’ rulings 119/1-4, where there is quite a raft of information about it. On the strength of that, the point of order is upheld.

I think there are three other points that I need to comment on, as well, and I will deal first with the point of the Green Party member Mr Hague. At no point do the Standing Orders define a lapse time for a point of order if it is relevant. That the member did not raise his point at the time the amendment was moved is not a reason for ruling out the point of order. Had we voted on this part and moved on, we could not return to it. In that regard, it is perfectly relevant to raise the point of order at this time.

The third point that springs to mind—

💬 Hon Darren Hughes: Springs to mind.

The CHAIRPERSON (Eric Roy): —sorry, that comes to mind—in relation to this matter is when the day actually starts. Because we are in urgency, and the sitting day stays the same, it would be my ruling that the day started at 2 p.m. yesterday. I have inquired of the Clerks, and I find that these amendments therefore would have had to be lodged at 2 p.m. on Monday. Even given another interpretation that it was a chronological 24 hours, the amendments do not fit.

The fourth point is whether the amendment is a trivial matter in terms of its effect on the financial aggregates. The Standing Orders do not required the Chair to rule on that; that is the prerogative of the Government. It is not the Chair’s job to rule whether the effect is trivial; it is simply to rule whether the amendment has a fiscal implication. In that regard I am bound to uphold the point of order. That would mean that new Parts 3, 4, and 5 are ruled out of order in relation to the ruling I have just given.

I raise a point of order, Mr Chairperson. The words you used then were that it was not for the Chair to determine whether the impact on the fiscal aggregates is large. Speaker’s ruling 119/1 states: “During the committee of the whole House, the Government will be able to make a submission to the chairperson that an amendment or a change proposed to be moved, appears to have more than a minor impact on the fiscal aggregates …”. It goes on to say that if there is doubt whether the effect is more than minor, then the amendment should be ruled out. I suggest to you, Mr Chairperson, that there is no doubt that the impact of this amendment is minor. This is the most minor sort of review, and I cannot see how it could have a more than minor impact on the fiscal aggregates. In order for you to rule it out, Mr Chairperson, you have to be satisfied that there is at least doubt that the impact is minor.

The other point that I would like to draw your attention to, Mr Chairperson, is Speaker’s ruling 119/4, where it is made clear that it is quite proper for the Minister to raise the issue on official advice. I want to ensure that you have sought confirmation from the Minister that there is official advice. If there is official advice, we know that it is always obtained in writing from Treasury. That is the way that that advice occurs. The Opposition wants to ensure that there is that official advice. If that is the case, we are happy to go with it. It was always tabled in the past.

The CHAIRPERSON (Eric Roy): The Hon Gerry Brownlee should respond to that.

I am advised by Treasury that the cost of this provision would be somewhere between $600,000 and $1 million. Whatever way members like to look at it, that is an impact.

💬 Hon Darren Hughes: I raise a point of order, Mr Chairperson.

I will rule on this point first. Can I say that the Chair does not have at his disposal the kind of information that the Leader of the House has just given. It is part of the process of this institution that the Chair accepts Ministers’ advice on that matter, and the Leader of the House has confirmed that he sought advice.

💬 Hon Trevor Mallard: Could we ask the Minister to confirm that that advice is written advice?

The CHAIRPERSON (Eric Roy): As far as I am aware, it does not have to be.

I raise a point of order, Mr Chairperson. That is something that is very clear and very important. Ministers, when they have advice that is required by the Standing Orders, have always got that advice in writing. It is part of having a record. It is a protection for the Minister, and it is a protection for this House. I am not doubting that there is such Treasury advice—because the Minister has assured us that there is—but I want to know that it is available, and that it is in writing, because it is something that will have to be tested going forward.

I think, in response to that, that there are layers to the reasons why an amendment can be ruled out. This is not a financial veto, which probably has a higher level of standards around it. But the 24-hour rule is a requirement. I remind members again that all members in this Parliament are honourable members, and if the Leader of the House gives me his word that he received advice, it is not, in my opinion, my responsibility to then require him to present to me written evidence of his having had that advice.

I raise a point of order, Mr Chairperson. I have several points to raise with you. I will first take the point you have just raised.

With regard to Speaker’s ruling 119/4, the ruling contains the phrase “official advice,” and the inclusion of the word “official” must mean something. As Mr Mallard has said to you, we have now had the Leader of the House say verbally that the cost of the amendment would be between $600,000 and $1 million. What happens if, down the track, the official information is found not to have existed, and the Leader of the House has said in the Committee that it does exist and has said what the advice is? When Mr Mallard asked about it, Mr Brownlee waved a piece of paper that is acting as his bookmark in his copy of the Standing Orders of the House of Representatives. It is a handwritten note on paper that has been ripped out of a notebook—it is perforated along the side. That note cannot possibly constitute official advice to the Government of New Zealand about this matter. So I raise that point with you.

I also raise a second point, Mr Chairperson, about the fact that when we read Speaker’s ruling 119/4—and Mr Mallard has quoted the first part—we see that it continues: “It is quite proper for the Minister to raise the issue on official advice,”, and finishes off: “although it is finally for the chairperson to rule.” That is a very important point for you, Mr Chairperson, because I noticed that when the point of order was taken at 2 o’clock you had a lot of information at your fingertips. You were able to give four points to us when you were ruling on it. But the ability of the Opposition to propose amendments to legislation, whether they are in support of, or in disagreement with, the law, is quite an important point.

The reason I raise that is that previously it was totally out of order for an Opposition to put forward any amendments that had any fiscal impact whatsoever. The changes to the Standing Orders at the end of 1995, which came into effect in 1996, altered that, so that an amendment could come from the Opposition that might have some costing associated with it. But rather than use the term “financial impact”—that is, $1 or more—the term “fiscal aggregates” was used, so that it was clear that amendments that involved costs that were small as a percentage of the Government’s total spend would not simply be ruled out or dismissed. It is very hard to accept that in a Government Budget of about $60,000 million, a review costing half a million dollars is somehow some extraordinary change to the Government’s fiscal aggregates. A stay at a hotel in Tonga or a trip on the Interislander does not have a big impact on the Government’s fiscal aggregates, either. Those are the sorts of figures we are talking about.

This is a device being used by the Government to try to stop the Opposition from being able to propose amendments to the legislation—amendments that the Government can vote down. It will have that option shortly; we have spent about an hour discussing Part 3, and Government members will have the option of voting against it to show that they are not in support of it.

Mr Chairperson, the Speakers’ rulings make the point that it is finally for you to rule on this matter. If you as Chair accept that a Minister who feels frustrated at the length of time of a debate and says “Oh, look, that amendment is just too expensive.” is not required to supply you with any written advice that is then available for the Committee to look at, and if the Minister does not give any detail about what the advice is, then the Opposition could have all of its amendments ruled out for all time. There is a cost even in the simple fact that when an amendment is accepted by the Committee, it forces a printer to go into action somewhere within the Government. That is a financial cost. If the Government goes down the path of not only stopping us from having question time but also stopping the Opposition from proposing amendments because, by their very nature, there will be a cost of some amount—a fiscal impact—that is different from an effect on the fiscal aggregates, which is the way in which our Speakers’ rulings and Standing Orders have been written.

I think that this is a really critical point, Mr Chairperson, and the Opposition respectfully seeks your assistance with it. Otherwise, there is no point in doing any of these debates, because as soon as the Leader of the House loses his temper about these matters, the ball will be thrown and we will all have to go home. That seems preposterous to me.

I refer you, Mr Chairperson, to Speaker’s ruling 136/4, and go back to the question of the perforated piece of paper from a notebook, which the Leader of the House is relying on. I quote: “An official document is not just a piece of paper with notes for the Minister’s guidance, but is a more formal piece of writing conveying a message or memorandum, or recording some matter between officials of the Government or between the Government and other persons.” That is the sort of document that, in my opinion, advice consists of. That is the way that Ministers get advice. It is official. There is a proper record of it. I do not know in whose hand the note on the perforated piece of notepaper is, but it is my submission to you, Mr Chairperson, that, in that form, it cannot be an official document, and therefore it cannot be the source of the advice that the Leader of the House has received.

Just as a matter of guidance on fiscal aggregates, my memory is that, as far as Dr Cullen was concerned, an amendment had to have an effect of more than $10 million before he would—

💬 Hon Members: Oh!

The CHAIRPERSON (Eric Roy): Can the member just sum up?

The next point I am making, as to an effect on the fiscal aggregates, is that Dr Cullen’s view was that a figure of $10 million was the point at which he would start being interested as to whether there was an effect on the fiscal aggregates. Dr Cullen used to make clear that the Government had a majority in the House, and if we did not like an amendment, we voted against it rather than attempting to have it ruled out through this method or through a financial veto. What he saw as an effect on the fiscal aggregates sufficient to trigger this mechanism or to trigger the financial veto—generally, an effect would have to be bigger in order to trigger the financial veto—was something much more significant than the cost of this amendment, which at most would be $1 million, with the best estimate being about $200,000.

The CHAIRPERSON (Eric Roy): OK. Let me deal with what I think are three points that have come out. I think that this series of points of order on the process around this stuff is useful. I regard it as quite valuable. I will deal firstly with the last point that the Hon Trevor Mallard raised, in terms of amount. There is no guidance for me anywhere that I can find, in the Standing Orders, Speakers’ rulings, McGee, or anywhere, that actually defines an amount. That is the prerogative of the Government. If it were $10 million or any figure, it would be enshrined somewhere. That is my difficulty. Moving away from saying “This doesn’t fit.”, or “That doesn’t fit.”, I tell the Committee that there is no documented evidence for me to go to in order to determine what amount is trivial.

Let us now go to whether it was appropriate or proper for the Leader of the House to have raised this matter, and again we go to Speaker’s ruling 119/4, which states clearly in the second-to-last sentence: “It is quite proper for the Minister to raise the issue on official advice,”. The member raised the matter of whether the paper was an official document, but the ruling does not say “official document”; it states “official advice”. Again, in the time that I have had at my disposal to look at this matter, nowhere have I found a specification about what is official advice. As I said earlier, I have to accept that the Leader of the House has received advice, and I so rule on that.

Then we come to the matter of the responsibility of the Chairperson, which is my responsibility. I go to the latest edition of McGee, at page 381, and the fourth paragraph states in regard to this matter: “The chairperson does not determine such a matter on a balance of probabilities; a possibility is sufficient.” So I am guided by McGee on this matter, in terms of ruling in favour of the point of order raised by Gerry Brownlee.

We move now to the vote on the schedules.

I raise a point of order, Mr Chairperson. I am sorry but a lot of discussion was taking place while you were giving your ruling. Are you declining to rule on Speaker’s ruling 119/4, which sets out that it is quite proper for a Minister to give official advice? You are accepting the torn off bit of paper that is perforated down the side—

The CHAIRPERSON (Eric Roy): Yes, I am.

—and handwritten as official Government advice? You are ruling against Speaker’s ruling 136/3?

The CHAIRPERSON (Eric Roy): I am accepting that the Leader of the House has had official advice. That is what I am accepting.

On what basis?

The CHAIRPERSON (Eric Roy): His word.

His word. So what recourse does the Opposition have if it turns out that that advice does not exist?

The CHAIRPERSON (Eric Roy): I remind the member that all members are honourable members, and if at a subsequent time any member is found to have misled the House, there is a course of action, which is substantially Draconian, for dealing with the matter. Well, it rules justice in a way that members understand. There are matters of privilege; there is a whole range of things. Members have that course open to them if it is subsequently found that any member has misled the House, and this issue is no different.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): I am about finished with this issue, unless there is new material.

You have ruled out of order the addition of Part 3 in my name.

The CHAIRPERSON (Eric Roy): Correct.

I have not heard any rulings about the other amendments. Are you now ruling them out of order also?

The CHAIRPERSON (Eric Roy): Yes. I did say when I responded in the first instance that I was ruling out the amendment in your name currently under debate, and also the amendments to add Part 4 and Part 5. I have already given that ruling.

I raise a point of order, Mr Chairperson. Are we to take it, then, that the advice you have received from Mr Brownlee is that each of those amendments, of itself, causes cost that would materially change the fiscal aggregates, or is the advice that, in the aggregate, the amendments would cost between $600,000 and $1 million, or whatever the figure was? By the way, I accept the Minister’s word as to the amount.

The CHAIRPERSON (Eric Roy): I think there are two points there. Let me clarify the member’s first point, which was about advice that I as Chair have received: the Committee of the whole House has received that advice; it is not pertinent to me only. The second thing is that I have accepted that advice in relation to the three amendments before us to add new Parts 3, 4, and 5.

I raise a point of order, Mr Chairperson. I am not trying to be difficult. My confusion about the amount that the Committee was told is material. Is it the cost of each of these reviews, or is it the cost of all of them? It is a relatively simple question that I thought we should be able to get an answer to.

The CHAIRPERSON (Eric Roy): This is my interpretation of it. We have trolled through this area and established some principles around it. The Leader of the House has said to us that each of the amendments has an impact on the fiscal aggregates. We have also established that there is no threshold of triviality, so we simply accept it. The Leader of the House, of his own volition, gave some numbers. I am prepared to accept his word that each of the amendments has an implication for the fiscal aggregates. I have accepted it on that basis.

I raise a point of order, Mr Chairperson. I want to check that you have had an assurance from the Leader of the House that these amendments could not be done within the baselines that are currently available—that they would require an extra appropriation as opposed to using current appropriations—because if they can be done within the baselines, they will not affect the fiscal aggregates. In my view, in a vote the size of the one we are talking about there is not a bolter’s show in hell of these amendments affecting the baselines of the Accident Compensation Corporation.

The CHAIRPERSON (Eric Roy): Let me affirm again to the Committee of the whole House that I am not privy to any information. When the member raised the point of order he asked whether I had been told information by the Leader of the House; he told the Committee. That is the first thing. The Leader of the House told the Committee that these amendments will have an impact on the fiscal aggregates.

I raise a point of order, Mr Chairperson. I do not want to show disrespect, Mr Chairperson, but you came to the Committee with the answers to a series of questions. I cannot accept that you did not have some sort of briefing on this matter before you came to the Committee. I have enormous personal respect for you, Mr Chairperson, I have known you for a long time and I respect your integrity, but I do not think you should attempt to tell the Committee that you had not been briefed and you were unaware of this matter. You clearly were aware of it.

The CHAIRPERSON (Eric Roy): Let me respond to that. Every day before I come to the House I spend time with the Clerks. They are whom I spend time with. When I came into the Chamber Mr Brownlee was sitting next to me, and I said “Do not talk to me.” He may or may not wish to confirm that, but I think the member will accept my word. So I am dealing simply with some anticipation—because this is developing into a filibuster—as to what the probabilities would be—

💬 Moana Mackey: It is not.

The CHAIRPERSON (Eric Roy): It is taking somewhat of an interesting twist—let me put it that way. I do not want to accuse anybody of anything, and I apologise for that. It is the right of the Opposition to explore every possible avenue, and it is my responsibility to make myself conversant with the pertinent Standing Orders and Speakers’ rulings, and McGee. Also, we have spent some 25 minutes on this matter, and there has been an opportunity for the Clerks to advise me and give me some quotes, like the one I took from McGee. I did not prepare it before I came here. Members have to accept that I am dealing with this matter in the most straightforward manner that I can. We will now put the vote on the schedules.

I raise a point of order, Mr Chairperson. First, I echo what Mr Mallard said about the personal respect we have for you. Mr Mallard and I would like to invite you to join us for lunch tomorrow, when the House will still be in urgency, to make sure there is not a single chance of Mr Brownlee getting to you. He will be in quite a mood by then, I predict.

I want to take you to the point where you referred to your role as the Chair of the Committee. As a presiding officer you have a number of functions, but the protection of the rights of the minority is one of the most important ones, and it is one that you do very, very well indeed. You referred to your view of the proceedings of the Committee at the present time, and it is probably correct that things could have taken an alternative, parallel path to the one they are taking at the present time. But there are three amendments that propose three new parts. I would not describe them in the language you did—although you did withdraw it.

The CHAIRPERSON (Eric Roy): I rescinded it.

But it goes to the fact that just because the Government is unhappy with the process that has been followed by the Opposition is no reason for our amendments to be ruled out. If every single one of our amendments is going to be ruled out because of a claim that it will have an impact on the fiscal aggregates—and you yourself have said that the triviality or otherwise of the cost is irrelevant—it actually means that the Government could rule out every single amendment that the Opposition seeks to put to this legislation, which affects the lives of hundreds of thousands of New Zealanders. That is why I bring you back to Speaker’s ruling 119/4, and to the very last few words—the last seven or eight words—“although it is finally for the chairperson to rule”. If the Government is allowed to get away with this behaviour—and the great irony is that we had spent an hour on Part 3, and we would have had the vote by now, and we would have moved on; we have lost time on procedure, because of the Government’s management style—if every single amendment is ruled out because you are saying that triviality is not important, then the Opposition has lost its voice. That is why we are appealing to you, Mr Chairperson, as the defender of the minority in the Chamber, to make sure that that does not happen. I am not confident that the Leader of the House will not try to bulldoze the legislation through the House because he has the pip about something that is far beyond my intelligence to understand.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): Is it a fresh point of order? I should rule on the current one. Are you speaking to it?

I think I should speak to the point of order. There has been a degree of emotive expression that is somewhat disappointing. I would like the member to consider that although it is the right of the Opposition to try to put forward views, equally it is the right of the Government to govern and to go about its business in the House, and our protections, both yours and mine, lie in this book, the Speakers’ Rulings. I ask the member to look at Speaker’s ruling 119/3, which is of no lesser import than 119/4. It has in fact been endorsed by former Chairperson Pettis and former Speaker Hunt. It states that Standing Order 320 “is not neutral as to whether an amendment is out of order. If a member fails to give 24 hours’ notice and there is any doubt or possibility that it has a fiscal impact, the amendment is out of order.” That is all we have raised. These Speakers’ rulings are here for the House to be guided by, and I think we should get on with our business.

I will now rule on the matter that the Hon Darren Hughes raised. I thank him for his expression of respect, and I will look at taking up the luncheon offer. But I want to correct him on something that—[Interruption] Points of order are heard in silence. I want to clarify—because the member picked me up wrongly—that I said that it was not for the Chair to rule whether something is trivial. The member said that the Chair ruled whether something was a trivial matter. There is a pertinent difference. I have not ruled whether this matter is trivial; I have simply ruled, as per McGee, that the possibility exists. I have therefore chronologically followed through that process in determining that. So I have not ruled that it is trivial.

The fundamental point that the member made is that the Chair can rule out amendments. I pick up on Speaker’s ruling 119/3, which Mr Brownlee raised. It is there for good reason, and it is not neutral. I think it is just a little wake-up call that where there is a possibility of a fiscal aggregate implication, anyone putting in an amendment simply has to obey the 24-hour rule. That does not rule out the possibility of debate, at all. I will now put the question on schedule 1.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Eric Roy): I think we have just about addressed every—

It is a different point of order.

The CHAIRPERSON (Eric Roy): Well, I will listen with interest.

We strongly contest the approach that is being taken—it leaves us with very few rights in the way of posing amendments—but if that is the way it is going to be ruled, then we have to do our best to advocate and articulate for the people we represent. But we rely on the protection of the Chair for these matters.

One of the difficulties is that the House, as you mentioned before, is in urgency. Urgency was signalled to the Opposition very, very late in the piece—far later than more recent practice under Mr Brownlee’s tenure as Leader of the House. This particular amendment to create a new Part 3 was lodged 23½ hours ago. We did our best to comply with the information available to us at the time we put these amendments forward. There is a point where it is impossible for the Opposition to comply with the 24-hour rule. If the Government operates in this fashion, it curtails the ability of the Opposition to comply with that rule.

As you can appreciate, these are serious amendments. They create three new parts—three important parts to do with injury prevention. I do not think anyone could argue that they are not serious amendments. The Government might not like them, but they are not ridiculous. They are not frivolous amendments; they are proper ones. We have to write them, to make sure they comply with the Standing Orders, and to have them tabled, and if the ability is not there to do so, because the Government has moved urgency without that happening—

💬 Hon Trevor Mallard: They had brought this matter up the Order Paper compared with where it had been.

That is right. This bill was moved higher up the Order Paper than it had been, as my colleague rightly says. It was set down at about No. 4 or No. 5. We arrived in Wellington on Tuesday, we were advised that the House was going into urgency, and the bill became No. 1 on the Order Paper. It became impossible for us to comply with the 24-hour rule. The Leader of the House is losing a lot of time that he need not lose if he were operating in a slightly different way. It does not have to be this way.

I will respond to that point and say that the second reading of the bill was on the Order Paper last Thursday, so members could have assumed that it was going to be dealt with this week, and they could have applied themselves to the sort of exercise we are in now. But given that that is not the case, the final Order Paper would have been printed by 10.30 on Tuesday morning, at the time when caucuses are having their powwows about process—or whatever caucuses do—so there certainly was an opportunity. Thirdly—

💬 Hon David Parker: Where was it on that Order Paper?

The CHAIRPERSON (Eric Roy): Just let me finish. Thirdly, this meets neither the urgency day rule nor the chronological rule. It does not meet either of those. But the member has raised a point to which some consideration may need to be given, but not at this point. I suggest that the Standing Orders Committee would be an ideal vehicle for that matter to be teased out, because in this case I can rule only on the Speakers’ rulings, the Standing Orders, and other literary records that I have in front of me.

Schedule 1