Resource Legislation Amendment Bill

I raise a point of order, Mr Speaker. My point of order relates to the next Government notice of motion. I have a number of points to make in support of the proposition that this motion should, I think, be debatable, rather than be a non-debatable motion.

There is a very unusual situation. This bill has been reported back from the Local Government and Environment Committee for a second reading, and the proposal by the Government, according to the notice of motion, is to refer it back to the select committee rather than allow it to have a second reading. There is no provision in the Standing Orders covering this situation—I think everyone accepts that there is no provision in the Standing Orders—and, as a consequence, in order for the Government to not have the bill heard at second reading and hear the views of parliamentarians on it, and get it back to the select committee, it has got to get the agreement of this House for an abnormal process. My submission is that, particularly in the circumstances of this case, that should not happen without the House debating the circumstances of it and whether it should happen.

When this was put on the Order Paper earlier in the day, I went to see the Clerk, and the Clerk gave me two reasons as to why he thought that this could be done or should be done without debate. The first of those reasons was relying on Standing Order 204, which says that in respect of proceedings at select committees, they are to apply the rules of conduct of proceedings in a Committee of the whole House, unless subject to a Standing Order to the contrary. With respect to the Clerk, I do not think there is any help for the House in respect of Standing Order 204, because Standing Order 204 is talking about what happens at select committees, not about how things get to select committees. And so, Mr Speaker, I would submit to you that Standing Order 204 is of complete irrelevance to the decision as to whether there should be a debate on this motion.

The second point I would make is that at the moment, if this motion proceeds in this way, the House will have had absolutely no explanation as to what has happened over the last 11 months. The Opposition parties will have had no opportunity to talk to the merits of this issue at all. You will be aware from the records of the select committee—and I am not in any way at risk of contempt in this, because the minutes are out and the conduct of the proceedings last week is clear—that the select committee minority, the Opposition parties, was blocked from having any report back to Parliament as to what has happened. We were further blocked from providing a minority view. If there is no opportunity to debate this, we cannot put any of those points before the House, and we are placed in the invidious position, despite this very unusual process, of the House being none the wiser as to what has happened.

Two more points—in respect of the other two points that the Clerk made to me, he said that a precedent could be drawn from Standing Order 311, which deals with recommittal to the Committee of the whole House in a third reading. Of course, where that happens the House and the members immediately have the opportunity to address the House in that recommittal to the Committee—we have the opportunity to debate these issues. If this goes straight back to the select committee, we have absolutely no opportunity, so I do not think that Standing Order 311 is of any assistance either.

The reference that the Clerk made to the only precedent that he was aware of, the Food Bill—I was not even aware of that precedent until he raised it, and I thank him for raising it—is not at all comparable to this situation. That Food Bill had sat on the Order Paper—from my memory, it might even have been years—and then there was a new Supplementary Order Paper put to the select committee, for new submissions. Everyone in Parliament agreed that it should go back to the select committee, and so it was not a motion that was debated. That is not at all comparable. If agreement over a non-controversial issue such as that one is taken to be a precedent for how controversial issues are handled, then we will have poor order in this House.

The final point is that in the absence of a Standing Order setting out how these things ought to be dealt with—and there is no Standing Order—and in the absence of a Speaker’s ruling on the issue, the House should then be given the opportunity to debate the matter so that the House can decide how to proceed upon debate, rather than the executive being given an easy option.

I therefore ask you, Mr Speaker, to reconsider the issue as to whether, in this instance, this motion from the Government to recommit this bill to the select committee, 11 months after it first went there, should be debated.

I wish to speak to the point of order that has been raised by Mr Parker, and make four points. First, there is absolutely nothing abnormal about the Government referring a bill back to the select committee. It is exactly what occurred in this Parliament in 2014 with the Food Bill. The reason in that case was that there was further work for the select committee to do on the bill, and the circumstances here are the same.

The second point is that the member makes the claim that it is unusual for a bill to be still in the select committee process after 11 months. I would draw your attention, Mr Speaker, to the Marine Reserves Bill, which was introduced into the Parliament by the previous Government in 2002, and had extensions all the way through 8 years of consideration by the select committee.

The third point is that I was part of the Standing Orders discussion when the Business Committee process was set up. I was a member of Parliament before we had the Business Committee and after. The decision that the Standing Orders Committee made at the time was that any single party would be able to object to an extension being granted by the Business Committee—that it was by consensus. At the time that decision was made, it was quite deliberate that in the event that there was not a consensus—in other words, any single party could object to a select committee extension—then it was for the House to make the decision by majority to refer a bill back to the select committee. To now require a debate on that would be a substantive change from the very intent of establishing a Business Committee.

The last point I would make is that in the political dialogue that occurred last week, members opposite asserted that it was the Government’s intention not to have a report from the Local Government and Environment Committee, to have a pro forma report back to the House this week, and for us to just use our parliamentary numbers to bung it through the Parliament. That is not the Government’s intent. The Government’s intent is that this bill does require the substantive, 500-page report, which was received by the department only last week, to be referred back to the select committee. When the select committee produces its report back to the House, all of the views—including the debate about why it has taken some time for the select committee to report the bill back to the House—can be dealt with at the time when the select committee delivers its proper consideration.

First of all, it is the timing of this referral back. We have seen bills referred back for third reading with the consent of the House, but after a discussion.

The second thing is that there is no Standing Order on this. In that event, when there is a request for a debate, one would surely think that in the absence of a Standing Order, it would be granted. Why? Well, the public has got a right to know what is going on. Out there in New Zealand, the people have got a right to know what is going on, which is why these parliamentary proceedings are broadcast right around the nation. If there is no debate in respect of this referral motion, first of all to the debating structure itself, then Parliament will not be informed and, worse still, the public will not be.

If this matter is critically important to the whole future of the whole nation, and National’s economic strategy is what it says it is, then the more the public knows about that and what is happening to it, the better. I suggest, therefore, that you should not err in favour of a debate, but, for the very reason we gave, favour the debate.

The experience that I have of other Speakers and of you, Mr Speaker, is that you tend to exercise a ruling in favour of the House and the opportunity to debate, and that is with precedent, in the absence of Standing Orders and Speakers’ rulings. I think the House should be given the opportunity to debate the matter. It is not an opportunity to give the executive an easy out.

In my very brief perusal of the Standing Orders, there has been comment made by other members—respected senior members of this House—that there is no Standing Order that applies. In my brief reading of this Standing Order 74(2), where we are dealing with the discharge or postponement of an order of the day, it makes it abundantly clear that there is no amendment or debate on the question to discharge or postpone an order of the day.

💬 Mr SPEAKER: Which Standing Order is the member quoting?

Standing Order 74(2). My argument would be very clear: there is simply no getting around those plain words there in that Standing Order. There is simply no ability here to debate this matter.

💬 Hon Members: Point of order.

I am not going to hear too many more. There have been a lot of members who have had an opportunity. I will hear from the Hon Trevor Mallard, who is a learned scholar of many years’ experience.

I am a person of some experience in these matters. The first point is that I think the Deputy Leader of the House had better have a look at the Standing Orders. I think he might be using an out-of-date set of Standing Orders when he was making that reference. I think he was probably referring to Standing Order 74 rather than Standing Order 70, but we will—

💬 Mr SPEAKER: I thought the member referred to Standing Order 74.

Well, Standing Order 70(2) is certainly not the one that—

💬 Mr SPEAKER: Order! Can I just clarify that the member Mr Bridges, when he referred to a Standing Order, referred to Standing Order 74(2)?

💬 Hon Simon Bridges: Yes.

Thank you, that is fine. I apologise for mishearing.

I want to make about three points. The first is that in this House, motions are debatable unless it is clear that they are not, and that is quite a high test. I want to make it clear that we have changed the approach to the debate on bills over a period of time, at the point we amalgamated the debate on the report of the select committee and the debate on the second reading. I think that should be taken into account in any new ruling, because under the previous Standing Orders, and any sorts of precedents that might flow from way back, we would have already had a report-back debate before we come to this point.

I do want to accept that on the face, David McGee—when he deals with this matter on page 363 of the third edition of Parliamentary Practice in New Zealand—does indicate that this would be a non-debatable motion. But, in doing so, he appears to be referring to the absolute discharge—of a bill or the postponement of a bill, as opposed to a discharge for the purpose of referral back to a select committee. It is an awful thing to disagree with McGee, but my view is that he has his references incorrect on page 363.

I have just two additional points. The Minister for the Environment said that the select committee was considering a pro forma report. There were quite detailed and extensive minority views from Opposition parties—Labour and the Greens—so it would not have been simply a pro forma report. The other point is in relation to Standing Order 290(2), and the Minister yesterday, in his press release, said that select committee consideration “may be completed this year but may flow early into next year.” So if the select committee is going to be asked to consider the bill for less than 4 months, then that is normally debated by the House.

I thank all members for their comments. I have spent considerable time on this and intend to rule. The starting point for my ruling is, of course, Standing Order 74(2), which provides that motions to discharge an order of the day are not debatable. There is no specific provision in Standing Orders to govern the referral of a bill back to the select committee, so I have looked for the most similar applicable rule for guidance. Standing Order 311 provides for a referral of a bill back to the Committee of the whole House from the third reading, also without debate.

In determining how to proceed with the discharge and the referral of the bill, I have also looked at McGee and, as Mr Mallard has mentioned, it says on page 363: “When the order of the day for a bill’s second reading is reached it is possible for any member to move to discharge it and for the bill to be referred back to a select committee for further consideration. There is no amendment or debate on this question.”

[The word “no” in the previous sentence was originally omitted; text corrected.]

Finally, I considered how the House has dealt with motions to discharge the second reading and refer a bill back to a select committee in the past. I have searched back the last 14 years to 2002 and have found that in 2015 an identical motion was moved by Tracey Martin, in respect of the Harmful Digital Communications Bill, and that occurred without debate. In 2013 the same thing happened with the Telecommunications (Interception Capability and Security) Bill and also with the Food Bill, and the Minimum Wage (Abolition of Age Discrimination) Amendment Bill was referred back to a select committee without debate in 2006. In each of those four cases the motions to discharge the bill from second reading and refer them to the select committee were moved and there was no debate. Clearly, the same process should be followed in respect of the bill before the House today.

To avoid further doubt, I am now confirming that the motion to discharge and refer a bill back to select committee is not debatable or subject to amendment. I will not entertain further discussion now, but I will certainly allow further discussion to occur at the Standing Orders Committee, if its members so wish.

I raise a point of order, Mr Speaker. I take the point that you have just made. I do want to draw to your attention—accepting your ruling—to the intervention made by Eugenie Sage, which is that the Minister is on public record as suggesting that the bill will be back well within the normal 4-month period, which otherwise would generate a debate. That is a very serious matter from our point of view, in that we will not get to debate that, even though the Minister has made clear in his public statements he has no intention of the bill being in the select committee for the normal length of time.

If the motion were then to refer it back from the select committee in less than 4 months, that then would be a debatable motion, but at this stage I have seen no evidence of that before this House. I think the easiest way forward is to go back and to call Government order of the day No. 1.

Debate interrupted.