Speaker’s Rulings — Intelligence and Security Committee—Nominations Process

Last Thursday James Shaw raised a point of order concerning the House’s endorsement of members of the Intelligence and Security Committee and referred to Speaker’s ruling 209/3. He questioned why the Assistant Speaker had ruled that the Speaker had no part in this statutory appointment process.

The committee is set up under the Intelligence and Security Committee Act 1996. It is not a select committee appointed by the House. The Act quite rightly places no duty on the Speaker. The House has always been very careful in preserving the comity between the courts and Parliament not to legislate for the conduct of House procedure.

While the Speaker has no part in this statutory process, he obviously has a concern to ensure that the House operates within the law, which requires consultation to be undertaken. The House cannot make good a failure to consult.

The Act places the responsibility to consult on the Prime Minister and the Leader of the Opposition. These consultations are not parliamentary proceedings in which the Speaker has a role. If members consider this unsatisfactory, that is a consequence of the creation of a statutory rather than a parliamentary committee and can be remedied only by changing the law.

A difference of opinion has arisen about the process of consultation. As the Assistant Speaker ruled in the House on Wednesday, the Speaker does not have a role to set what is required by way of consultation. That is a matter for the law. The Speaker’s only role is to determine whether the notice of motion seeking the House’s endorsement is in order. This is entirely consistent with the ruling of Speaker Kidd in 1997.

The House is not above the law. Were the Speaker to become aware that no consultation had been undertaken, the notice of motion would be ruled out of order. The House cannot by resolution right a failure to comply with the law.

Concern about consultation was drawn to my attention on Tuesday. To assist I informed both the Leader of the Opposition and the Leader of the House and suggested the concerns be discussed with them and other parties, prior to the motion being brought up in the House. It is the mover of the motion from whom I seek assurance about whether the consultation requirements of the law have been met, not those required to consult.

As the Assistant Speaker ruled, using the words of Speaker Kidd in 1997: “we should not be too precious about what constitutes consultation in a political context”. What is usually accepted is that persons will be informed and have an opportunity to be heard. There is no expectation of agreement. There is, after all, the opportunity to put one’s case in debate in the House and ultimately the House could decline to endorse a nomination, the consequence of which would be the recommencing of the statutory process, including consultation.

The Assistant Speaker’s ruling was given in full awareness of the ruling of Speaker Kidd and is entirely consistent with it.