Governor-General Bill

I move, That it be an instruction to the Committee of the whole House on the Governor-General Bill that it have the power to consider and, if it thinks fit, adopt the amendments set out on Supplementary Order Paper 173. The amendments relate to the term of appointment of the Governor-General and the processes of appointment. The reason I have moved the instruction is to clear up any doubt about the relevance of this Supplementary Order Paper to the bill, the Committee stage of which is to be considered very shortly. I understand that I am not to debate the Supplementary Order Paper now, but one of the two new clauses on it relates to the term of appointment of the Governor-General, which relates very directly to the whole question of annuities, the number of years of service to qualify for those annuities, and the different rates of the annuities. So it is directly relevant to the bill. I think that with a bill called the Governor-General Bill the process of appointment outlined on the Supplementary Order Paper is very relevant. I do not wish to debate it beyond saying that, but I am sure that those members who listened to the first and second readings would see that the content of my Supplementary Order Paper is very relevant to this matter.

I rise to speak to the motion on the part of the member. I think there is a lot of sympathy on this side of the House for the general cause that he is trying to promote, but it is also fair to say this is late in the process. Also, the motion is part of a process that does not involve the Government Administration Committee, which members on this side would think was a very important part of a discussion about republicanism. Perhaps the member later on, when he has his right of reply on this instruction to the House to consider something to be part of the Governor-General Bill, can give a level of assurance that submitters would be able to debate it. He might have a process that after the Committee stage sends the bill back to a select committee for submissions, or some other process.

I think members around the House consider this issue to be serious. Although on occasions I myself have used shortcuts in order to get things into legislation or to have consideration of particular debates, I think it is fair to say this issue is a major issue, and is one that concerns many New Zealanders. I understand there is a fairly even balance in the approach that people take to it. But it is certainly one where it is appropriate to have a due process whereby New Zealanders have the right to come to a select committee and have a debate on it. I know that the member has previously brought legislation to this effect to the House; it has been considered by the House and rejected. More is the pity when that rejection occurred, because although some of us thought that the member’s bill was not quite in a form that we could support, I think most of us on this side of the House are of the opinion that a debate is worth having on the issue. In fact, if we can shape something up to the form that we need, it will be a very important debate.

Having said that, I say I am slightly surprised to get the call at this stage, because I thought that on a relatively important issue like this the Minister who is in charge of the House would take a call to indicate the Government’s position on it. [Interruption] There is a Minister; she is hiding. I think the member was looking to see whether a Minister was in the House. Kate Wilkinson might be described as head down and bum up, working on her papers, but she is in the House.

I say to the member that from my understanding and experience he is procedurally correct in his approach. I have some pretty severe doubts as to whether without this motion his recommendations would be within the scope of the bill. I think a ruling from the Chairman of the Committee would not be to that effect. Therefore, the member is attempting to avoid any doubt. It is more often done by Ministers when they have Supplementary Order Papers that they want to bring into debate on bills after they have been through the select committee process. In fact, it is possible to do this with a bill that is at a select committee. It is possible for a notice of motion to go to the House—normally, again, a Government notice of motion—that says that notwithstanding the relevant Standing Order, a Supplementary Order Paper that would otherwise be outside the scope of the bill can be brought within the scope of the bill, and a select committee can consider it. I think that is more often done to a bill that is currently before a select committee, when Government members want to make a pretty substantial change but at the same time want to provide the opportunity for there to be hearings and for submitters to be brought into the debate so that there can be discussions.

I am looking forward. I warn the member’s colleague Kevin Hague that if he takes the next call, the debate is finished. I ask him not to do that, because I think some other people have some views on this particular matter and may want to contribute to the debate. But Mr Hague could do that.

The interim position of the Labour members on this particular motion is that we will not support it, because it looks as though the process may be abused. But we are not beyond convincing, if the member has in his back pocket an arrangement that gets all of this back to the select committee. But the mere mention of the words “Governor-General” in the body of legislation would not normally bring it to the point of being the hook on which a referendum on republicanism, or anything significant like that, could hang. Although we are generally supportive of the cause, we are not supportive of that sort of abuse of process.

I always try to be friendly to my mates in the Greens, but generally they are sticklers for process. There is a blog by Metiria Turei; there is something called Frogblog, which comments quite a lot in the new media on the question of parliamentary process, and which is very, very critical of both National and Labour when there is any question that that process has been abused. I look forward to “Frog” blogging on Keith Locke’s amendment of this type. Again, I may be misjudging the member. He is not normally one for secret agendas; he is normally a person who is opposed to secret agendas. He has done quite a lot of work over time in trying to expose secret agendas, or to stop other people’s methods of finding secrets. But it may be that he has an agenda, and I hope that if he does, it is not one that stays secret for too much longer.

I raise a point of order, Mr Speaker. I raise a point of clarification. I think that it is important in order for this discussion to proceed properly for members to know that Supplementary Order Paper 173 has nothing whatsoever to do with republicanism. It is just about the way in which—

The ASSISTANT SPEAKER (Hon Rick Barker): The member is seeking to introduce, by way of a point of order, material into the debate. There is no such thing in the Standing Orders as a point of clarification. A point is either a point of order about the process of the House, or it is out of order. I advise the member that that is out of order.

I raise a point of order, Mr Speaker. May I just apologise to the member. One of the problems with the sudden method that the member used was that we did not know what the hell he was talking about.

The ASSISTANT SPEAKER (Hon Rick Barker): There are no points of order for clarification. There are no points of order for lamentable and heartfelt apologies that should have been given before. This is a debate.

I rise to take a brief call on Supplementary Order Paper 173 in the name of Keith Locke from the Greens, to let the House know that the Government will not be supporting this Supplementary Order Paper. New clause 4A represents a significant departure from the way that the Governor-General is currently selected. In the new amendment that is being proposed: “The Governor-General is appointed by the Sovereign on the recommendation of the House of Representatives. The recommendation must be agreed to by at least 75% of all members of Parliament.” That, indeed, is a significant departure from where we currently sit. This proposal has not been through a select committee process, or even been discussed or debated by MPs in the House. On that basis and for a number of other reasons, the Government will not be supporting this recommendation.

On this occasion I agree with the Government and with Trevor Mallard as to process. The bill that we will consider today does not deal with the way in which the Governor-General is appointed. There is considerable merit in what Keith Locke has put forward in terms of ideas about how the process for the appointment of the Governor-General could be improved, but that matter is not for this bill. Indeed, it is also fair to say to Mr Locke that similar submissions were made in respect of the bill when it was before the Government Administration Committee, on which I was serving. The clerk of the committee provided advice to the committee that amendments to that effect were beyond the scope of the bill, because the bill does not deal with methods of appointment.

I would like to further describe my concerns about process. I am not a process junky, but I recognise that some of the long-established processes we have in this Parliament are to protect against substantial changes being made that might not be properly thought through. I am not accusing Mr Locke of not properly thinking this matter through; I am actually taking the point of principle.

There are various ways in which our select committees are meant to act as a check on what happens in this Parliament. This is all the more important in New Zealand because we have a unicameral Parliament. If Parliament gets it wrong, there is no higher House through which legislation passes; no higher House can check on legislation and turn things back if we make mistakes. That is why in New Zealand we are very, very reliant on the scrutiny of proposed legislation in the select committee process.

There are a number of ways in which that scrutiny can be usurped, to the detriment of New Zealanders, and one of them is a select committee putting into legislation amendments that are beyond the scope of a bill. We oppose that, because people do not have an opportunity to submit on them. If an amendment is not within the scope of the original bill, then interested New Zealanders, who might have a view in favour or against the sort of thing that Keith Locke is now proposing, do not have the chance to submit upon it, and to tell the committee—and, through the committee, this Parliament—what the pluses and minuses of the proposal are.

As Annette King said earlier—and it is the next issue I was going to mention—if we agree to this, I say Mr Locke, then how are we to resist inappropriate attempts by the Government to do similar things in respect of its legislative agenda when it wants to tack bits on to legislation that has gone to a select committee and then come back to the House, or, indeed, to do so at the select committee? We would disagree with that as an Opposition.

There already are, in my opinion, too many things being done to undermine the effectiveness of some of these processes. The open government we have in New Zealand—

💬 Jacqui Dean: Yes, talk about the electoral finance legislation.

Well, the electoral finance legislation is probably quite a good case in point, because that went through a full select committee process. There was no truncated process there.

The rule of the Government now seems to be to use its numbers to change a reference to a select committee by truncating the period for the select committee process and truncating the period for public submissions at the select committee. The Government did so for the super-city legislation—a phrase that I do not like; I will refer to it as the Auckland city reorganisation legislation—and it has done so for other legislation. The Government has used urgency inappropriately. It has used urgency repeatedly and inappropriately to effectively push legislation through different stages in a very truncated period of time. That stops the fourth estate, stops the Opposition, and stops interest groups from getting up opposition to policy that could be opposed over a longer period of time to proper effect so as to protect New Zealanders against inappropriate change. Another example is the Official Information Act.

The ASSISTANT SPEAKER (Hon Rick Barker): I advise the member of Speaker’s ruling 80/3: “This is a procedural motion … it is a narrow debate. The only matter under debate is whether the committee should have the power to examine and adopt this Supplementary Order Paper.” That is the only matter for debate. What may or may not have gone on before could be very interesting, but it is proscribed for this debate. I invite the House to remember that it is a narrow debate about whether the select committee should have the power to consider this Supplementary Order Paper.

💬 Keith Locke: I seek leave to table a submission to the select committee, presented by Lewis Holden and Dean Knight, specifically proposing—

The ASSISTANT SPEAKER (Hon Rick Barker): I say to the member that the kawa of this House is that those sorts of things should be done at the end of a member’s speech. The Hon David Parker is speaking. I have pulled him up on a matter of order. I want the Hon David Parker to be given the opportunity to complete his speech, and when he is finished the member is welcome to seek leave at that point. It is just a courtesy to the member who is speaking.

Thank you, Mr Assistant Speaker. Indeed, Mr Locke is correct that a similar submission was made to the select committee, and that is the reference I was making earlier to the advice we had in relation to just that suggestion that it was beyond the scope of the bill. The instances that I was talking to were why we should take care not to agree, in this procedural motion, to take a step that effectively undermines the protections we normally have in this House against inappropriate process.

I was giving instances of that, and the only other ones I would give are in respect of how the Official Information Act can be ignored, and, indeed, how minority reports can be blocked by the Government. All these sorts of things are encouraged if we vote for this motion, because this motion suggests that we should put aside the normal processes, ignore what is normally within the scope of the bill, and ignore our parliamentary traditions, which go to open government, the Official Information Act, select committee length periods, minority reports, and agreeing only to things that are within the scope of the bill.

I think there is considerable merit in the idea that we should move to a more transparent process for the appointment of the Governor-General. The Governor-General ought to be appointed with the support of this House rather than just with the support of the Government. Indeed, I think that Governments through the years have tried to make appointments that are appealing to both sides of the House. I have no problem with the substance behind the motion—because that would just be a case of writing down a process that would ensure that there is some cross-party agreement as to the future appointment of Governors-General. But in terms of the process point, we in the Labour Party are going to support the proper process here. We feel that the Government currently is taking advantage of us at select committees, and we do not want to give it cause to be able to do so by agreeing to an inappropriate process motion here.

So the position of the Labour Party is that we oppose this motion. These procedural motions appear, on the face of it, to be rather dry things, where we think: “Well, there’s not much harm in that.” But when we think through the underlying issues here, we see there are important matters of principle and precedent. I have mentioned the principles, but the precedent effect would be of concern to the Labour Party, and, I would suggest, to the Greens also.

As Trevor Mallard has said, the Greens often take the process point, and often appropriately, I have to say. During the two terms of the Labour Government when I have been here, the Greens often stopped us from using short-cut processes because they controlled whether we could get a majority for those short-cut processes. The Greens stopped us doing that. At times it was a bit frustrating for us when we were in Government, but, actually, I look back and I compare that with what happens now under the National Government, and I think the Greens were right.

These processes ought to be protected, because the way in which we consider legislation in this House has been built up through precedents for over 100 years, and those precedents are borne of experience as we try to protect New Zealand against inappropriate lawmaking. Inappropriate lawmaking can be caused by hasty lawmaking or by agreeing to matters that are essentially beyond the scope of a bill—and this is beyond the scope of the bill. It would serve the political ambition of the Greens and their reasoned position as to why they want to change the way in which the Governor-General is appointed, but it would not be appropriate to do that in a bill that has not been subject to wide public submissions on that issue.

Mr Locke is correct that two of the submitters, I think, raised the point at the select committee, but they were ruled out as being beyond scope by the clerk of the committee. The clerk was correct to rule them out of scope; I did not think there was any doubt about that. The fact that those two people submitted does not mean to say that the people who read the bill when it was publicly advertised thought: “I don’t need to put anything in my submission about how you appoint the Governor-General, because that is not what this bill is about.” Most of the people who submitted, or who might have submitted had it proposed to change the way in which the Governor-General is appointed, are ignorant of the fact that this bill could be used to do so. That in is itself means that it should not be done this way.

This is an important constitutional point. The Governor-General is the Queen’s representative in New Zealand. How the Governor-General is appointed is a matter of important constitutional note. If we are going to change that, we should do it directly through legislation on that topic.

I seek leave to table the submission by Dean Knight and Lewis Holden to the select committee on this bill, which proposes exactly the two points—

The ASSISTANT SPEAKER (Hon Rick Barker): Leave is sought to table that document. Is there any objection? There is objection.

I seek leave to table the second submission, referred to by the previous speaker, by Derek Round, which proposes a method of appointment by 75 percent of Parliament.

The ASSISTANT SPEAKER (Hon Rick Barker): Leave is sought for the tabling of the document by Derek Round. Is there any objection to that? There is objection.

I am happy to take a call in this debate on whether the contents of Supplementary Order Paper 173 in the name of Keith Locke should be able to be considered during the Committee stage of the debate on the Governor-General Bill. I think it is really important that the House and those listening in and watching on TV are aware of what the Supplementary Order Paper actually does, because none of the speakers so far have talked in any detail about what it does.

💬 Chris Tremain: I actually did.

Chris Tremain mentioned what it does probably in more detail than most other speakers have done so far. I think it is really important that we know that Keith Locke is not trying to pull a swiftie here and slip republicanism into a debate that has nothing to do with republicanism. These are matters that could, if we took a very wide-ranging approach to the scope of the bill, argue were within its scope. That issue was debated at the Government Administration Committee. When the submitters put that forward, we had some discussion about whether those submissions should be deemed to be within the scope of the bill.

It is important that we talk about what the amendments on Supplementary Order Paper 173 are. The first substantive amendment is the addition of a new clause 4A, which deals with the appointment of the Governor-General. That is the one that basically requires that when the Governor-General is appointed, a 75 percent vote of the House of Representatives confirms that appointment. The question then becomes whether that is something that is within the scope of this particular legislation. I will now talk about new clause 5A, because the points I want to raise are relevant to both clauses. Additional clause 5A specifies in law that the term of appointment for the Governor-General is a 5-year term. The term should not exceed 5 years, and a person who has been appointed as the Governor-General cannot be reappointed as the Governor-General. The question is whether those two changes—providing for a specified term, and requiring a 75 percent vote of Parliament to confirm a Governor-General’s appointment—are within the scope of this bill.

The bill deals with annuities for Governors-General, but there is no fixed term for a Governor-General. It deals with payments on conclusion of office, for example. The idea of the term of a Governor-General being specified is relevant to the payment of annuities and so forth, which are matters contained within the bill. It is not too big a stretch to say it could actually be considered as part of the debate on this particular legislation. As Keith Locke mentioned, both of these issues were raised during the select committee process. As David Parker pointed out, they were ruled to be outside the scope of the bill. In that case, there are other process options that a member of Parliament could choose to take.

I have the select committee’s report on this bill here. There is no minority report in the select committee’s report on the bill. That, of course, is one option that is available to members if they feel significant issues have been raised that are outside the scope of the legislation that is being considered by a select committee. Members retain that option to put forward a minority report within the select committee’s report, arguing that additional issues had been raised during the select committee process that are worthy of consideration, and alerting the House to those things. The select committee works on a very cooperative basis. It is chaired by the Hon David Parker, and I can imagine that there would not have been any issue if a member chose to raise that particular matter and alert the House to it. I think that is an important part of our constitutional arrangement—that right of select committees to alert the House to matters that fall outside the strict scope of legislation that is being considered. That did not happen in this particular case.

The question becomes whether this is a case for which there should be a specific exemption. Is this something that there should be an exemption for, and should we therefore widen the scope of the bill? I am a little uncomfortable about doing that, because having sat through the select committee hearings on this particular bill I think several submitters put forward quite compelling cases for doing so. I should point out that I personally am very sympathetic towards the two amendments. Two of the submitters argued that yes, in fact, those amendments should go ahead. However, the other submitters to the select committee did not get the opportunity to comment on that, because it was not in the original bill. So before the House was to consider those amendments at the Committee stage, I would prefer that they went back to a select committee so that the public could have a say. It may be that there is a different appointment process for the Governor-General that someone in the public may wish to submit on, and maybe a 5-year term is not be what people want. People may have a more compelling argument for a 4-year term, a 6-year term, or some other term.

I think, given the significant constitutional nature of these amendments and the extent to which they change the role, the appointment process, of the Governor-General—if we make it a fixed-term role, that would change things—it is important that any such change be subject to a pretty rigorous examination process. The problem with doing so in the Committee of the whole House is that the public would not have a chance to have a say on it, and members would not have a chance to get their heads around it, and do any additional research and so on. We are talking about the Committee stage effectively being over and done with, potentially, in a day. That does not give people much time to give the matter the depth of consideration that I think something of this constitutional significance should be subject to.

I think it is really important that Parliament as a whole treads very carefully when it comes to amending constitutional issues.

💬 Hon Annette King: The Government could send it back to select committee.

As Annette King has pointed out, if the Government were of a mind to consider this issue, it could send the bill back to a select committee. I indicate as a member of the Opposition that I would be very comfortable with this bill going back before a select committee with such provisions in it. As I said, I think they are very worthy provisions. I agree with Keith Locke on many things about republicanism, but also about the role of the Governor-General, which is a separate issue. It is really important that we do keep those things quite distinct. This is not a republican issue. This is to do with the Governor-General, the appointment of the Governor-General, the annuities paid to a Governor-General, and the term of office of a Governor-General. That is within the scope of the bill, in terms of the annuities and what the Governor-General is paid. But I argue that the issues are on the margin, and they are just on the other side of the margin in terms of whether they are within the scope of this particular legislation.

So with some reluctance, I do not support the resolution put forward by Keith Locke to allow Supplementary Order Paper 173 to be considered by the Committee of the whole House. There are other avenues available to the member, and I indicate that I would be very supportive of him should he choose to pursue those avenues.

I find a lot of merit in Supplementary Order Paper 173 in the name of Keith Locke. We have heard the two key provisions on it being explained by colleagues over the last half hour or so. The first deals with the appointment of the Governor-General, and would require a 75 percent majority in this House for any recommendation to go to the Sovereign for the appointment of the next Governor-General. As a fellow republican with Keith Locke, I appreciate the sentiment behind this. It is not that this Supplementary Order Paper is about republicanism; it is simply about the appointment of the Governor-General. But implicit in this Supplementary Order Paper is the idea that we are a democracy and it is appropriate that this House, as the assembly of the elected representatives of this nation, should have a say in the appointment of our head of State. That seems to be entirely consistent with the thrust of the Governor-General Bill, which we will debate this afternoon, and which is fundamentally about modernising the arrangements surrounding the Governor-General. I commend the member for this Supplementary Order Paper.

As my colleague Chris Hipkins has pointed out, new clause 5A on the Supplementary Order Paper deals with the term of the appointment of the Governor-General by setting it out in law that the Governor-General is not to be appointed for a term greater than 5 years. That effectively puts in place a term limit: a person who has been appointed as the Governor-General cannot be reappointed as the Governor-General. A clear line can be drawn between that and the provisions in the bill. Clause 8 of the bill deals with the annuities, and it states that if the Governor-General has held office for a total period of less than 2 complete years he or she must be paid an annuity. Of course, the bill also sets up the Remuneration Authority as the body that will set the level of that annuity.

Although I think the case can be made that this Supplementary Order Paper should be debated today, I am mindful that colleagues have already made the case that such a significant change to the way that the Governor-General is appointed deserves to have the benefit of a proper and serious process of public and parliamentary scrutiny, in accordance with the fact that this would be a pretty significant change to our constitutional arrangements. We have heard from Mr Locke that a couple of the submitters, Lewis Holden and Dean Knight, came along to the Government Administration Committee and submitted in some detail on this very issue. But I am persuaded by my colleagues that that is not enough, and that the bill would have to be changed and then run through a select committee process in which members of the public could come along and have a say on this matter. I like what my colleague Chris Hipkins had to say, and if there is a procedure that would allow Mr Locke to propose that the House send the bill back before the select committee with this Supplementary Order Paper to be considered by the public, then I would certainly be keen to support that. I express the hope that my colleagues on the Labour side of this House would also support that provision.

This is not a republican Supplementary Order Paper, but it is a democratic one. It is worthy of consideration; I think it has a lot of merit. I hope that we can find a way to ensure that this bill is sent back before the select committee, so it can consider the content of Mr Locke’s Supplementary Order Paper.

Previous speakers have spoken about—and I think Trevor Mallard himself did talk about it—my right of reply as the mover of the motion. I consulted the Clerk and found out that technically I do not have a right of reply, but given the fact that I was commendably brief in my first speech, and given all the issues that have been raised in terms of the course of action to be followed, I seek leave to be granted 2 minutes to sum up this debate before the vote.

The ASSISTANT SPEAKER (Hon Rick Barker): Leave is sought for Keith Locke to have 2 minutes in reply before the vote. Is there any objection? There is objection.

I seek leave to move a motion that my Supplementary Order Paper 173 be referred back to the Government Administration Committee for consideration before there is a further debate on this bill.

The ASSISTANT SPEAKER (Hon Rick Barker): Leave is sought for that purpose. Is there any objection? There is objection.

I seek leave to divide the vote on this motion, because it is clear from the debate so far that there is much more agreement on the relevance of new clause 5A on my Supplementary Order Paper, relating to annuities and the term of office of the Governor-General, and is support for that amendment to go forward to the Committee of the whole House as a Supplementary Order Paper. So I seek to divide the vote on my motion so that the motion is taken in two parts: the first part to be in relation to the Committee of the whole House considering new clause 4A, in relation to the means of appointment of the Governor-General, and the second vote to be on new clause 5A, in relation to the term of appointment of the Governor-General being 5 years.

I do not think the House can take leave for that, for this reason. I do not believe that a procedural motion of this nature is divisible. A Supplementary Order Paper itself would be divisible, but a motion to give the Committee of the whole House the power to consider and adopt, if necessary, a Supplementary Order Paper is, in my opinion, indivisible. It would be inappropriate to seek to have the motion so divided. Either the motion is up or it is down; it is not in halves.