New Zealand Flag Referendums Bill

Members, we now move to Part 3. This is debate on clauses 67 to 71, and schedule 5.

I raise a point of order, Mr Chairperson. Can I just ask whether the voting that you have just concluded included voting on schedules 3 and 4; if not, when will those votes be taken, given that the Chair of the Committee ruled that the debate was including schedule 3 and schedule 4?

The CHAIRPERSON (Lindsay Tisch): No, the schedules are separately identified, and they will be voted on after Part 3.

We were debating them.

The CHAIRPERSON (Lindsay Tisch): Yes, you were debating them but they are voted on separately, and they are voted on after Part 3.

Good.

It is my pleasure to stand and take a call on Part 3 of the bill. I know that my counterpart, Mr Mallard, will be very pleased to take a call on this part as well.

To date, we have had a wide-ranging debate. The substantive parts of this bill are contained in Part 2. It sets out the way that the referendum would be conducted, and it also sets out the provisions as to how this referendum would be slightly different from your average referendum. Coming to Part 3, obviously it is a slightly less detailed part of the bill, and it includes miscellaneous provisions.

It includes amendments to the Flags, Emblems, and Names Protection Act 1981, which sets out the various flags under which we already operate. This was a really interesting part of the discussion during our select committee. Although it was an interesting part of the discussion, it is one I would like to give a brief call on for the benefit of my colleagues. Basically, what we learnt is that there are a number of emblems under which New Zealand currently operates. There is, of course, the New Zealand flag as we know it—well, as we know it; on that side of the House Jacqui Dean seemed to be of the view that not everyone in New Zealand would be able to identify the New Zealand flag. Obviously, she holds slightly less hope for both our education system and the New Zealand public generally.

The New Zealand flag, as we know it, is one of the flags under which we operate but, also, there is some provision for the 1902 flag already within legislation. I want to make reference to that briefly, because I found that fascinating. Section 5A in clause 69(4) of Part 3 states: “(1) The 1902 Flag is recognised as a flag of historical significance to the Realm,”—it is not often that we have that terminology in a bill—“Government, and people of New Zealand. (2) Any person or body (other than a government department) may use the 1902 Flag, except where required by law to use the New Zealand Flag or another specified flag for a particular purpose.”

What is interesting there is that there are not actually many areas in which it is specified that you must use the New Zealand flag. The reason that this is interesting is that the select committee found that if we change the flag there will not necessarily be a requirement in many areas for the new flag to be used. In fact, we could arrive at a scenario where we end up with both flags. You are still able to use the old 1902 flag, as set out under the Flags, Emblems, and Names Protection Act 1981. You could feasibly still use the old New Zealand flag because under this bill we still would recognise it as a past flag of New Zealand. You could then have a third flag, which is obviously the new flag if it were to be voted upon. Of course, we would also have the Tino Rangatiratanga flag flown during Waitangi Day as well, and, in the military, often you will see our soldiers wearing the kiwi on their arm. Technically, that is five different emblems—five different emblems that we could feasibly have and be able to use by law.

That seemed like quite a ridiculous situation, but one of the Government’s arguments as to why the RSA should not be upset by this flag referendum was that it could feasibly still fly the old New Zealand flag anyway. New Zealand First could still have its flags on its boxes—great news. I know that you have invested a lot in buying some of those really great House boxes with the flag on it. You would not have to get rid of them—

💬 Barbara Stewart: Thank you.

I have noticed. You would not have to get rid of them. They would still technically be able to be used.

On that side of the Chamber, they thought that was a lovely, elegant solution. On this side of the Chamber, we thought that just seemed a bit bizarre. Under that Act we would have, as I described, the 1902 flag, the New Zealand flag, and any other flag that you may choose to have. It was really noted that, in particular, those in the armed forces may use whatever emblem they choose to, and it might be the old flag. I think it is a confused situation and I think this referendum only adds to it. Another reason for there to be no change at all is the cost that we are incurring to have this debacle anyway. Thank you.

Mr Chairperson—

💬 Jacinda Ardern: What is that?

This is the point. I know that we have gone beyond clause 24 now, but, luckily, I have been looking very carefully at clause 68, which is “Validation of irregularities”, and clause 68 refers back to clause 24. Therefore, I thought it would be a good idea for the members who earlier in the debate pleaded that they did not know what a facsimile machine if I found one for them and I brought it here.

To be absolutely fair, I could be just about accused of trawling through the rubbish to get it. I found this machine in a pile of things that were heading towards the rubbish and had been sitting outside a member’s office for some time. For members around this Chamber who are not aware what a facsimile machine is, this is one of them.

💬 Hon Ruth Dyson: How does it work?

I am not absolutely certain, but there are plugs that go into a telephone line. To be absolutely fair, this is a modern version, because it can also act as a photocopier. It is one of the more modern machines around—

💬 Dr Megan Woods: Where do you put the carbon?

No, there is no carbon required in this photocopier-facsimile machine. In fact, it will work with things that are written on golf ball typewriters as well as the old Imperials, which most of us used two fingers for.

I am looking at the members. Other than my colleague the Hon Ruth Dyson, who I know is above 40, I think hardly any other members on the Labour side of this Chamber would have in their working lives been involved in jobs where facsimile machines were still technology that was used.

This is what a facsimile machine is, and I would like to bet that there are not many people on Raoul Island who use them anymore.

💬 Hon Ruth Dyson: What about on ships?

And of course not on ships. Clearly, if you can get through to a ship, you can get through by email. If you have got the technology to get there by telephone line—or not a line, obviously, with a ship—or remotely, then these machines can be used.

But the interesting thing is that in trying to work out how I could get the facsimile machine into the debate in a proper way, it caused me to look very, very carefully at clause 67 and, in particular, clause 68. I want to say that this clause is an outrage. This clause is an absolute outrage. What this clause, effectively, does, especially in 68(3)(d)—under a claim to validate irregularities—is allow the Governor-General, on the recommendation of the Prime Minister, “to make such other provision for the case as the Governor-General thinks fit.” I want to ask Denis O’Rourke down there. Remembering that the Governor-General has to act on the advice of the Prime Minister, if the Prime Minister says “I do not like the result of the referendum.”, is it within the bounds of the Governor-General, under 68(3), by dictation of the Prime Minister, to override the legislation and to change the result? I know Mr O’Rourke is a lawyer.

I just want to ask people to look really, really carefully at clause 68(1) and ask what is a fundamental constitutional question, and that is whether primary legislation should be overridden by regulation.

💬 Chris Bishop: Sounds like a Regs Review issue.

Chris Bishop says yes. Chris Bishop says: “Yes, that is a good approach for legislation.” Well, I just tend to differ. I tend to differ with Chris Bishop on that. You know, all of the constitutional arrangements I have ever understood said that Parliament made the law and that regulation was subservient to that and that regulation—secondary legislation—should not override primary legislation.

I ask the Hon Michael Woodhouse, the Minister in the chair, whether in fact all of clause 68(2)(a) to (e) and 68(3)(a) to (d) has the effect of giving the right to make secondary legislation that would override the provisions of the primary legislation. I just want to ask whether that matter was considered by the Regulations Review Committee, because in my view that regulation—

💬 Chris Bishop: No.

No, it was not. Chris Bishop says it was not. I am pleased that it was not, because I would have thought that we would have had a report from—I think David Parker chairs the committee—

💬 Chris Bishop: Cunliffe. David Cunliffe.

David Cunliffe chairs the committee? Right, well, I am sure David Cunliffe would have seen that that was inappropriate and we would have had a report.

One of the questions I have got is what is happening within the processes of the House that the Regulations Review Committee did not look at the regulation-making powers in this bill? You know, I am sort of glad Geoffrey Palmer is still alive, because if he were dead he would be spinning in his grave. He would be exceptionally angry. I am sure he would be exceptionally angry.

💬 Dr Megan Woods: I’m sure he would.

I know. I spent some time with Geoffrey on Sunday. He still attends this Parliament, sometimes by mistake, and I think it is fair to say that coming to the function celebrating 150 years of Parliament being in Wellington was a mistake for the Rt Hon Sir Geoffrey Palmer, and he slipped away pretty damn quickly. But if he had had, on his way out, a look at this regulation-making power he would have been absolutely outraged. It is one of the things that we were taught. Geoffrey, you know, could sometimes be a bit precious. He would sometimes go just a bit far, but there was some stuff that he told us when we were backbenchers in the 1980s. He was Deputy Prime Minister and the Minister of Justice for much of that time, and one of the things that he made absolutely clear to us is that you have primary legislation and secondary legislation, which is the regulations, and the regulations have to be subservient, and you cannot amend the letter of the law, passed by this Parliament, by passing a regulation—and that is what this purports to do.

I just want to say to members who are on the select committee—frankly, I am sort of slightly grumpy with some of my own colleagues for not focusing on this.

💬 Poto Williams: You’re focusing on the fax machine.

What? No, I am not focusing on the fax machine. I know that members may want to trip on to the clause past clause 68 and may want to focus on that one, but clause 68, “Validation of irregularities” is one that I think is very important. Remember that the heading of a clause is not part of the law. The heading of the clause is something that is not interpreted when it comes to the court. It is the substance. It is the lighter-coloured words in subclauses (1), (2), and (3), those words together, that are the law we are currently passing. The heading is something that is not interpreted by the courts.

So although the heading does say “Validation of irregularities”, actually, the bits that we need to look at are the bits that say that “the Governor-General may, by Order in Council, do any of the things described in subsection (3).”, and, more important, as it says in subclause (3)(b), “validate anything done before or after the time required;”. Validate anything that is done? Validate anything that is done before or after the time required? Does that mean that if there is a package of votes that occur well outside the period, then that is—

First of all, I would like to comment on what the Hon Trevor Mallard said in relation to clause 68, “Validation of irregularities”. I would have to agree that this is an extraordinarily wide authority for the Governor-General to act on the advice of the Prime Minister. If you look at the whole of clause 68, subclauses (1), (2), and (3), you can see that just about anything could be authorised. I thank the Hon Trevor Mallard because it is something that I had not realised during the select committee process, and I do not think others had either, and it certainly did not go to the Regulations Review Committee. So I think this is a very valid concern.

I point out this: if you look particularly at clause 68(1), it says: “In the circumstances described in subsection (2), the Governor-General may, by Order in Council, do any of the things described in subsection (3).” So then you look at subclause (2), and you find that in paragraph (e) it says: “if sufficient provision for something that needs to be done is not made by or under this Act.” Sufficient provision for something—that is about as wide as language can get, and then when you carry on and you look at—

💬 Hon Trevor Mallard: It’s about three buses wide.

—yes, even more—subclause (3) and particularly at paragraph (d), it says: “to make such other provision for the case as the Governor-General thinks fit.” Such other provision—I mean, how wide can a provision in an enactment get? In terms of validation of irregularities, we have an open door for the Prime Minister to tell the Governor-General to do just about anything in relation to this legislation. I do think that it is going too far and that that provision should be struck out, and I would invite the Minister to have a look at that and to take action on this before it goes any further. That is a serious issue.

I would also like to refer to new section 5A in clause 69(4). If you look at that, it says in subsection (2): “Any person or body (other than a government department) may use the 1902 Flag, except where required by law to use the New Zealand Flag or another specified flag”. That is fair enough by itself, but then you go down a little bit further in the bill and you see that in new section 5A(8) it talks about replacing section 10(2) and (3) of the Flags, Emblems, and Names Protection Act 1981 with this: “(2) The Minister may, either in any notice issued under subsection (1) or otherwise, set out for general information and guidance rules of conduct and the etiquette to be followed in the flying or other use of any of the following: (a) the New Zealand Flag: (b) the 1902 Flag:”.

So the Minister appears to be able to instruct how the 1902 flag will be used. That does not sit well, in my mind, with the provisions of new section 5A(2), which says that “Any person … may use the 1902 Flag,”. So what is it? Is there a freedom to use that flag? That, of course, does not need to be conveyed anyway, because I do not think there is any intention or any law against any person using any flag as they think fit. Nevertheless, there is this power for the Minister to dictate the etiquette to be followed in the flying of the 1902 flag. Why on earth is that there? Why is there any reference to the 1902 flag in that provision? It should be struck out, and I would like the Minister to consider that as well before the matter goes any further.

In fact, this whole section, I would say, actually results in general confusion. I am not sure when I read it whether the 1902 flag is still a New Zealand flag or not. It says that it is a flag of historical significance, but it says that it is a flag. What flag? What is its real status? This new section does not really describe what the status of the 1902 flag is. As far as I am concerned, I will use, when I need to, the 1902 flag, but this provision is not good enough.

I am going to rise to take just a short call on this particular part of this bill. I thought it was kind of interesting how far-ranging we have got, on what is a reasonably narrow part of the bill. I thought for a while there that when Mr Mallard turned up with his fax machine that he was going to pull out a telex machine. He was diving so far back into people’s memories. But I do have to say that I thought it was a bit of a sad reflection when a member has to really drill through this part of the bill to find an excuse to bring a fax machine into Parliament. I thought that was a really long bow to draw, but, anyway, it happened and it is over.

I specifically want to address the issue of the status of the 1902 flag. I think it is pretty clear that the purpose of clause 69—I am referring to the 1902 flag—is to ensure that people for whom this flag is significant will still have the opportunity to fly it. There has been a lot of talk throughout this debate, for example, about our returned services associations and the fact that many of them will have fought under this flag. That is a very valid thing for them to bring up. It does not necessarily mean that because somebody fought under that flag that therefore it must always be, for ever, the New Zealand flag, but there will be occasions when they may want to fly it above the RSA or when it might be appropriate even for that flag to be flown on Anzac Day or on other commemorative occasions as well—Armistice Day or times like that.

There is a precedent for this, because there are certain times of the year when other flags are flown or can be flown from public structures. For example, on Waitangi Day now it is considered appropriate if people choose, alongside the New Zealand flag, to fly the Tino Rangatiratanga flag. People have come to accept that that is an appropriate cultural thing to do. It is something that people have seen, and certainly Government departments and the like have been given the opportunity to fly that in public places.

So I think it is really important that we do not lose the historical significance of the 1902 flag, if we do have a change of flag at some point in time. If there is a change of flag, this provision within this part of the bill will ensure that the 1902 flag still has a significant and special place within New Zealand’s history. There will be the opportunity for people, if they so choose, to fly the flag where they see fit. I think it is a great concession to those people who have an attachment to the current New Zealand flag that they do not want to relinquish. What we are doing, if the flag is changed to a new flag, is giving them the opportunity to hold on to those things.

I said this would be a short contribution, so I want to leave it right there. Thank you for listening.

Tēnā koe e te Heamana o te Komiti o te Whare, tēnei te mi’i ake ki a koe. E hari koa ana ahau kia tū ake ki te kōrero ki te wāhanga tuatoru o tēnei pire i tēnei wā.

[Thank you, Mr Chair of the Committee of the whole House, and I acknowledge you. I am pleased to rise at this point in time to address the third reading of this bill.]

I am really concerned about the New Zealand Flag Referendums Bill overall, but, in particular, about clause 68 in Part 3, which was pointed out by my colleague Trevor Mallard. What concerns me is that this bill is giving that kind of power to the Government. In actual fact, what is stated in earlier clauses—and I know we are not debating this issue—is relevant to this clause. Clause 26(4) states: “Each extension is to be for the period the Returning Officer thinks necessary, up to a maximum of 14 days.” In actual fact, clause 68 overrules that because it says that by Order in Council the Governor-General can change that. He can change that clause. There are a number of other clauses in Part 2 that can be altered because of what this clause allows.

I think it is a sad day for our democracy. We heard from members opposite, who talked about this bill being about democracy. In relation to that clause and other clauses, I want to talk about access to democracy. In Māori electorates—in my electorate the turnout for the last general election was 65 percent, which is quite low compared with other electorates. But under the postal ballot that this bill allows for, we are going to get even less participation. I think this validation of irregularities goes to point out that even the Government thinks there could be situations where the process is not necessarily followed or it needs a bit of wriggle room to change the time frame in which things can happen. We should all be concerned about that because of calls from the members opposite around this issue being one of democracy. I am afraid to say I totally disagree with what this bill intends to do. It has been dressed up to do something else. Clause 68 validates that issue, not the irregularities, although it gives powers for those irregularities to be rubber-stamped afterwards. As one of the clauses in Part 2 states, information can be received in any language that the voter wants to receive it in. If that information does not come in a timely manner, whereby that person is able to fully participate in this process, then there is an out clause in clause 68. The Governor-General can overrule that. I think that is counter-democratic. Members opposite should think carefully again about this particular clause and what it does.

I think that the process, the methodology for this referendum—a postal referendum—is a 20th century methodology, and we actually need democratic processes to be in the 21st century. That means, for me, electronic voting. I think facsimiles raise the whole issue—and we heard members opposite also talk about responding to local body elections and the low turnout there. Well, that actually raises a bigger picture. So what are the—

💬 Stuart Nash: Mr Chairperson—

I apologise to the member Stuart Nash, because I was literally making my way to my desk. I seek leave to correct a vote that was cast earlier this evening in good faith but in error.

The CHAIRPERSON (Lindsay Tisch): Leave is sought for that purpose. Is there any objection? There is no objection.

I just want to assure the Committee that it was genuinely in error and that the proxy form was held, but there should not have been a vote cast on behalf of the ACT Party at approximately 12 minutes to 8 in support of Part 1 of this bill.

So Part 1—we will just correct the record. So for Part 1 on the New Zealand Flag Referendums Bill—the Ayes are 62 and the Noes are 58. So Part 1 did stand part.

I just want to make a couple of comments on some of the words that Jono Naylor talked about. The great difference between any other flag that a Kiwi wishes to fly and the 1902 flag is that the 1902 flag is enshrined in legislation as an appropriate flag for any New Zealander to fly other than a Government department. There are whole lot of Kiwis up and down this country who have flagpoles. I am very lucky to have a 100-year-old kauri flagpole, for example, and when the in-laws are coming I fly the skull and crossbones. That does not mean that it has to be codified in legislation, but it is just one of those things we do; it is a little bit funny. When the All Blacks are playing, you fly the All Blacks flag, etc., etc.

What this bill does, I believe, is create a level of confusion that did not exist beforehand and does not need to exist now. Let me give you an example. One of the reasons that the Prime Minister continually talks about the need to change the flag is the confusion between the New Zealand flag and the Australian flag. I personally do not believe there is any confusion, but the Prime Minister, even in question time today, I think, talked about a level of confusion. Well, imagine the confusion when we have in our legislation the right to fly the 1902 flag—or we should actually call it the New Zealand flag, because it is still a New Zealand flag—because it is set down in legislation. We are going to literally have two official flags: the 1902 flag—which I believe will actually end up being the New Zealand flag; but if by some point of chance there is a change—and the new design. That is going to create a level of confusion that I think is unpalatable, and the confusion that may exist at the moment for some between the New Zealand and the Australian flags will pale into insignificance.

I would also like to talk about clause 69(8), which talks about replacing sections 10(2) and 10(3) of the Flags, Emblems, and Names Protection Act 1981 with this: “(2) The Minister may, either in any notice issued under subsection (1) or otherwise …”. What does “or otherwise” actually mean? Is there a definition for “or otherwise”? What we have here is that it specifies under subsection (1)—so we know what the means because we can automatically go to subsection (1)—but then we have the complete catch-all “or otherwise”.

If there was an open-ended ability for a Minister to do whatever they want—this amendment is talking about the general information and guidance and rules of conduct and etiquette that must be followed when flying the flag on a building. What it says is there is subsection (1) “or otherwise”, which basically means that the Minister can make up, at his or her discretion, any rules as they see fit. But where it gets a little bit confusing is when you then go down to new section 10(4), which is just below that, which says: “A notice or other prescription”—which I assume fits in the “or otherwise” section—“made under subsection (1) or rules set out under subsection (2)”. So that is in direct conflict with the thing above it, which gives an open-ended ability to—

Sorry to interrupt the honourable member. The time has come for me to report progress.

Apologies, but in light of the leave that I sought previously, I should have also sought leave to correct the closure motion, and I now seek leave to do that.

Leave is sought for that purpose. Is there any objection? There is no objection. The record will be changed. This is the closure motion on Part 1. The Ayes are 62 and the Noes are 58.

House resumed.

The Chairperson reported progress on the New Zealand Flag Referendums Bill and no progress on the Appropriation (2015/16 Estimates) Bill.

Report adopted.

The House adjourned at 9.56 p.m.