Governor-General Bill

I will start by focusing on clause 16, which covers the first of these arrangements. I turn to the question of conflicting claims that was the subject of discussion in the second reading. Clause 16(1)(b) makes it clear that there is an ability to have a proportion of an annuity payable to more than one surviving spouse or partner of a former Governor-General.

💬 John Hayes: Or children.

The member has raised another issue for me, which is the question of whether the arrangements in clause 10(2) could be in the form of an annuity that is not a lifetime annuity but an annuity that could be inheritable. I am obliged to Mr Hayes for his interjection because I had not contemplated the possibility of something that is inheritable, other than in the circumstances of a spouse or partner being amongst the arrangements that could be made here. One of the questions I would like to ask the Minister—because we know that on occasions, for example, a lump-sum arrangement can be made for superannuation at the time of the death in office of a Governor-General—is whether it is possible that if the arrangements that have been made under clause 10(2) are then disputed under clause 16, a lump sum could be debated by children.

I must say that I would be relatively surprised if that was the case, because I think that clause 9 refers to spouses or partners of late Governors-General. I do not think it refers to children. But I do not know whether under clause 10(2) the type of superannuation arrangement that could be entered into would involve a lump sum that could then be disputed. Clause 16 would not cut the mustard for a dispute, because this is only for clause 9 disputes. This is a dispute around the annuity payable to a former spouse or partner. But if clause 10(2) covered a lump-sum arrangement, it could well be a single Governor-General, or someone whose wife or spouse or husband—sorry, I am being politically correct here—predeceased them, then if there is a dispute amongst the children or the other people who will be inheriting the money, the question is whether there is any role for a clause that is similar to clause 16, as clause 16 deals only with claims arising under section 9 of the Act.

I wonder whether instead of “entitled to an annuity” as provided for in section 9 of the Act, it might be worth introducing an amendment that states “or for an annuity pursuant to clause 10(2) where a lump sum is involved.” I think Simon Power would agree with me that it would be a little ugly if the children of a former Governor-General appeared before the High Court to dispute the will of a Governor-General, especially the part of the will that covered a lump-sum arrangement, which I think we have now agreed could arise from clause 10(2).

The question to the Minister of Justice—and I know he is avidly following this bill—is whether clause 16, “Conflicting claims”, should include a reference to clause 10(2), as well as to section 9 of the Act. I can see some members at the back of the Chamber shaking their heads, but so far no Minister has been able to explain to me why an arrangement, as set out in clause 10(2), could not include a lump sum. If it did include a lump sum and there were conflicting claims as to who that lump sum should be paid to, there should be a mechanism for sorting it out. As the Minister has provided for, clauses 16(1) and (2) essentially apportion the annuity in the case of there being multiple wives or partners, and I think that is fair. Generally, in the way that these things work, I hope that clause 16(1) will not be brought into play. I think having the authority to make the decision is important.

The next question is who the authorised person is, under this sort of arrangement. It is not clear from clause 16 who the authorised person is. My view is that it should not be a public servant. The idea of a serving public servant making a decision about the appropriate payments to be made to the wives of a former Governor-General is not appropriate. They could be wives seriatim, or they could be wives at the same time. We have had a discussion about the possibility of whether John Key and his moving this bill is taking a liberal view and looking to the future when we could have a Mormon Governor-General or a Muslim Governor-General. Such Governors-General could have a proper polygamist arrangement, according to the laws of the countries they have visited, lived in, or been married in. Although polygamy is not recognised in New Zealand law, I think many of us will be aware, through our constituency cases, of that sort—

💬 John Hayes: Even our own cases.

I do not know—in fact, Tim Groser could be the one. The member’s friend Tim Groser was the one who had multiple Muslim marriages, but I do not know whether they were serial or concurrent. According to the law of the country that he was living in at the time, they could have been concurrent. So we might have a good example here. Tim Groser has the voice of a Governor-General—of the sort that I can remember from when I was a kid. If Tim Groser on some occasion became Governor-General would this clause be the one to sort out the claims of the wives, including serial and concurrent? However, leaving that aside, because I understand that there has been a change of faith and a change of relationships in that case, I ask whether it is the intention of the Government that clause 16 be used for that sort of arrangement.

The other question, which I think is an important one that we need to work through, is who the authorised person is. It is an answer that either Mr Hayes or Mr—what is his name?

💬 Grant Robertson: Heatley.

Mr Heatley, who is currently acting Prime Minister—

💬 Hon Phil Heatley: New member.

No, he has been around a while; he is just slightly forgettable as to his name. If either of those members could advise who the authorised person is, that would be useful.

That speech by Trevor Mallard on the Governor-General Bill was 20 minutes of absolute nonsense. I refer the member to Part 2, clause 16(2), which states that if more than one person wants to claim part of the annuity then the total annuity can only be the amount payable to one person—the carrot can be cut only once. So it does not matter whether a person has 10 wives and 15 children, the amount is going to be the equivalent of only one annuity, which will be paid to whoever is entitled to it, and that is not for us to judge. All of the last 20 minutes was a total waste of this Committee’s time and if the member had looked at one little subclause he would have discovered that that was exactly the case. The second point of Part 2 is that it provides for an appeal if there is a squabble amongst people who feel they have a claim against the annuity; the claim can be taken to the High Court. With those words, I fully support Part 2 and have nothing further to say on it. Thank you.

I cannot help feeling that this side of the House is doing a lot of the heavy lifting.

💬 Hon Phil Heatley: First time for everything!

I am thrilled to hear some words emerge from the mouth of the Minister in the chair, and I invite the Minister to show us that there is more to him than fish and flogging off our public housing stock. I really would welcome some comment from the Minister, particularly on clauses 19, 20, 22, and 24 of Part 2. I think it would be great. I was hoping we would hear from the member for North Shore, who used to teach constitutional law, and I thought he would have a lot of good things to tell the House about Part 2.

💬 Hon Trevor Mallard: He never quite made it to being a senior lecturer.

No, but just like many of our Governors-General he has gone on to bigger and better things, and that is one of the points we have been covering in terms of the need for an annuity. One of my colleagues, Chris Hipkins, made the point earlier that it is necessary because being Governor-General is not exactly good for someone’s employment prospects. I question that. I look at people like Dame Silvia Cartwright, who has gone on to provide fantastic service on the tribunal in Cambodia, and also Sir Paul Reeves, who has provided distinguished service in Fiji and academic life in New Zealand in the years following his tenure as Governor-General.

Part 2 has some important clauses. Firstly, it amends the Civil List Act 1979—it repeals Part 1 of that Act, which provides for the funding of the Governor-General; and it allows the establishment of a stand-alone piece of legislation that reflects the importance of the office of Governor-General. I think the symbolism of that is very clear. Clauses 22 to 24 provide for the amendment of the Income Tax Act 2007 to remove the Governor-General’s tax-exempt status. But of course, as we know, it retains tax-exempt status for the allowance.

The significance of this group of clauses in Part 2 cannot be underestimated. The motivation behind these clauses is the very reason why Labour has called for the beginning of a conversation about the future of our constitutional arrangements. We believe that the very reasons we are taking away the Governor-General’s tax-exempt status and establishing these arrangements and stand-alone legislation are why it is time for our country to start having a conversation about our future constitutional status.

Many New Zealanders say they are perfectly happy with this Queen, that she has provided many years of wonderful service as our head of State, and that it would be impolite to begin a conversation about constitutional change while she is still on the throne. We take the view that our future constitutional status is too important to be left to a mad scramble on the death or abdication of the current Queen, and that we must begin now as a country to discuss not just these important practical details around annuities and so on, but also the nature of the office of our head of State, the way in which the head of State is selected, and whether the head of State should be a New Zealander and not a member of the British royal family.

That is why we support these provisions. We think they are important and necessary. The nature of the office of Governor-General demonstrates the fact that New Zealand is a constitutional monarchy. There is a very real and important symbolism in having these provisions, which provide the core of the second part of this bill in separate legislation. There is simply no longer any justification for the tax-exempt status of the Governor-General’s income.

I would like to follow up Trevor Mallard’s interesting speech on clause 16 in Part 2 in relation to conflicting claims—that is, envisaging a situation where there might be more than one person entitled to an annuity. As Trevor Mallard said, that reflects that we are in a modern society and it is a modern clause. Not only could there be two spouses in terms of one spouse dying and the Governor-General remarrying but also the provision could take account of divorce. If we look back into the history of the monarchy, including Governors-General as part of that, it is a history that is averse to divorce. The “until death do us part” part of the marriage vow was not only an intention but also very strongly part of the moral code of society and was very much tied up with religion. So to include clause 16 in this bill is a very modern thing to do.

Clause 16 gets away a little bit from the strictures of religion that have shaped our constitutional history, in some ways in too narrow a manner. Indeed, earlier this afternoon we had the prayer that has been read in Parliament for many years. In that prayer the term “true religion” is used. It is a phrase that dates back in the British Parliament to the 1600s. “True religion” means the Protestant religion. The reference to “true religion” is the Protestant religion against another religion—that is, the Catholic religion. That is the origin of the prayer we hear in Parliament each sitting day. In the Protestant tradition, true religion was associated with a very strong tie against divorce, and to marriage for the rest of a couple’s life. Clause 16, in allowing something different, is quite progressive.

Trevor Mallard’s comments about the multicultural element of this clause were quite relevant, too. There are various religions with different codes of marriage and divorce. They will be taken into account as part of our multicultural dimension. I think also when we talk about religion, moral codes, and how they are reflected in this we have to take into account the issue Phil Twyford talked about in his speech. I think he was really talking about the outdated character of the monarchy, which the Governor-General is a part of. One of the problems with changing the laws of inheritance, which Gordon Brown, to his credit, wanted to do—and he took the matter to a Commonwealth Prime Ministers conference before he lost office—is that the monarch in Britain is officially the head of the Anglican Church. Therefore, Britain cannot have someone who is not an Anglican, or someone who has converted to Catholicism, as its head of State because that person is not an Anglican. That offends against our human rights laws and our ethos. I think that all relates back to this very modern clause, clause 16, which allows for conflicting claims relating to the annuity for spouses following, for example, the death of the Governor-General. Thank you.

I too want to refer, firstly, to clauses 16 and 17 in the Governor-General Bill. I appreciated Mr Hayes’ intervention to clarify his interpretation of clause 16, and, although it may have dealt with some of the issues that Mr Mallard raised, it certainly did not deal with all of them. It definitely did not deal with Mr Mallard’s principal issue about clause 10(2), which we have had no answer from the Minister in the chair on.

I do think that the circumstances in which there could be conflicting claims are reasonably simple in terms of the way in which we live our lives in New Zealand, beyond any extension to the possibilities of the backgrounds of the kinds of people who might become Governor-General at some point. Basically, this is about a situation where a Governor-General may have had two partners during the time that he or she was Governor-General. It is quite a reasonable circumstance to imagine. Somebody may enter into a relationship, and the job of Governor-General is a stressful and difficult one at times and involves long hours, and that could lead to somebody separating and having a new partner. So I think the issue of conflicting claims is a sensible clause to have within the bill as it is about something potentially quite real.

On that point, it is worth noting that this bill is very modern legislation. Clause 4 lists the definition of partner as “a civil union or de facto partner”. The bill brings us forward into the 21st century in terms of the kinds of relationships that people can enter into. I think that clause 16 is a sensible clause, but I take the point from Mr Mallard that if we move through to clause 17, then the question of who makes the decisions on this matter is something that is up for debate. Again, in the interpretation clause, the definition of authorised person is “a person authorised to make decisions under section 16 by the Minister who, with the authority of the Prime Minister, is responsible for Ministerial Services”. At this moment that is the Prime Minister. So the Prime Minister will be appointing a person to listen to such claims.

I agree with Mr Mallard that a public servant in that position could be placed in a very difficult position in making those sorts of decisions. It may be a public servant who has a role that is subservient to the Minister responsible for Ministerial Services. I think that could lead to some unfortunate pressure being placed on a public servant to make that kind of decision. It will be a decision that, if one can imagine the circumstances I mentioned before, people will be particularly concerned about. No doubt it would attract a great deal of public interest and it would be a matter that the person would have to take very seriously. I do note that subclauses (2) and (3) in clause 17 refer to various rules that will apply, in particular, the High Court Rules, and the Judicature Act in relation to appeals against a decision of the High Court. There is clearly a judicial element to this role, and I think it is important that someone appointed to it can be independent and can make decisions like this without any particular pressure.

The other clauses in Part 2 that I will refer to in particular are clauses 25 and 26. I do this because throughout the debate a number of people have mentioned the current Governor-General. They have said what a nice person he is and that he has related well to these proposed changes.

💬 Phil Twyford: A great New Zealander.

I absolutely endorse those comments—he is a great New Zealander, I say to Mr Twyford. But I think it is important to note that clause 25(2) exempts the incumbent Governor-General from the changes in this bill. Clause 25(2) specifically states that all of the Governor-General’s allowances “… are as if this Act had not been passed.” Although it is worth saying that the current Governor-General is a humble man, which he is, and that he is a person whom we all greatly admire and who deserves our support on any occasion, he actually will not be covered by this law. However, under clause 26, the annuities are “in accordance with this Act.” So I guess from the point of view of a buyer-beware situation, the Governor-General is already in this situation. Therefore, the conditions under which he took up his position are being protected, but, at the end of the day, his annuities are not.

Although I think we all see this bill as a good step forward, and we are also dealing with the changes to the Income Tax Act in this part, those changes will not apply to the incumbent Governor-General. He does not have too much further to run in his term, but a number of members have mentioned that point and it is probably important for us to clarify that. Part 2 puts in place what is being done in Part 1. Although the Labour Party is supporting this bill, I think it is clear from the speeches we have heard that we would like some further conversation on constitutional arrangements.

I am taking a call to address several aspects of Part 2 of the Governor-General Bill. In referring to clause 16, the one thing we can be certain of is that clearly the present Governor-General will not be using these provisions. That is a good thing, because we talked about the calibre of the present Governor-General earlier and we know for certain that there is no need for him to use this part of the provisions, at all. However, it is fascinating to try to understand why this clause is there and what might be the set of circumstances in which it might be brought into play. The Hon Trevor Mallard’s thesis about how this clause might come into play has been fascinating, as was the speech of the previous speaker, my colleague Mr Grant Robertson, as well.

There probably are some areas where it would come into play, and perhaps the Minister in the chair, the Hon Phil Heatley, will take a call and explain what his thinking was about this particular provision. That might clarify some of the concerns that members on this side of the Chamber have raised. The Minister has not taken a call so far and we have asked several questions. I am sure that he is keeping all his answers for one tight response, which I am sure that he will take just prior to 6 p.m., so we know we will have those answers. I can see it is possible that this might be utilised. The honourable Minister has his answers provided on very small sticky Post-it notes. [Interruption] Is that what it is? OK, I thank the member. But I am serious about this; it is testament to the officials who worked on this bill that they have considered it from many aspects and it is very thorough. Clause 16 is an example of that.

Referring now to clauses 19 and 20, here we have a stand-alone enactment once this bill is passed that relates to all of the conditions to do with the Governor-General. I think that is a good thing. It is an easy place to go to. It comes out of the Civil List, and here will be all of the provisions. So clauses 19 and 20 do a good job. Perhaps from a public perspective, they will be interested in the provisions in clauses 21 to 24, which refer to the requirement that the Governor-General pay taxes. The public of New Zealand will probably take this very seriously and will take great heart from it, because it is beginning to say that we will treat our Governor-General as an ordinary person. Colloquially speaking, we will treat him in terms of a person who is earning a salary. Part 1 makes those changes, and here, in Part 2, the Governor-General will be required to pay taxes like the rest of us. There will be widespread support for this particular provision. It regularises the position, as indeed do all of the other clauses.

There is great transparency, as others have said. I would expect the present Governor-General—indeed, I am certain that this is so—would support this type of provision, because the present Governor-General has not even taken the salary rise that he was entitled to. He said that he takes a different position on this. He seriously understands the current climate and has demonstrated that he wants to be treated in this particular way. I will also refer briefly to clauses 25 and 26. Here, the present Governor-General is again protected in terms of ongoing annuities. The provisions in clauses 25 and 26 do not compromise the provisions applying to the present Governor-General. Clause 26 is just making certain that there is an avoidance-of-doubt clause there, and makes certain that the provisions will apply.

All in all, Part 2 clarifies a lot of the questions we had about this particular role. It regularises many of the provisions, which is necessary, and increases transparency as we understand it. It protects the present Governor-General and enables the public to have greater faith and confidence in this particular role in terms of its holder being treated like every other taxpayer.

The question was put that the amendment set out on Supplementary Order Paper 164 in the name of the Rt Hon John Key to insert new clause 20A be agreed to.

Amendment agreed to.

💬 Hon Trevor Mallard: I would like to now further debate especially questions around the amendment to the Civil List Act in clause 18—

The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the member—

💬 Hon Trevor Mallard: Sorry, I did not think there had been a closure motion.

The CHAIRPERSON (Lindsay Tisch): No, I have started to put the vote. When I have started to put the vote—

💬 Hon Trevor Mallard: No, I do not think you had. I think—

The CHAIRPERSON (Lindsay Tisch): Well, I have. I put the question that Part 2 stand part. I have put the amendment. We have voted on the amendment, and now we are moving through. The final part is to put the question that Part 2 as amended stand part. There is no opportunity to relitigate once I have started to put the vote.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I am reluctant to disagree with the Chairperson and his ruling in this area—and I can see that the Standing Orders are being passed to you—but it has long been the practice of this House to have votes on amendments to particular clauses, then to move on, especially where there are parts and amendments that affect particular clauses, to further debates on the bill as amended.

I thank the member for his comments. I refer him to Speaker’s ruling 115/1, which is headed “Putting the question”. I refer the member to the second to last sentence onwards, which states: “If there is no closure it is incumbent on members to seek the call to continue the debate if they wish to speak. If members do not call, the chairperson begins to put the questions on the amendments and there can be no further debate on the clause.” That is the position we are in and I have so ruled.

Part 2 as amended agreed to.

Clauses 1 and 2