Electoral (Integrity) Amendment Bill

I move, That it be an instruction to the committee of the whole House on the Electoral (Integrity) Amendment Bill that it consider and, if it thinks appropriate, adopt amendments to the Electoral Act in my name making explicit the overriding provisions of the Parliamentary Privilege Act.

Mr Speaker?

💬 SPEAKER: Well, I don’t need to call the member. He’s got the call.

I’m moving this motion so that when the committee comes to consider this bill, it is able to give consideration to very serious issues that go to the core of the functioning of this Parliament. The Justice Committee did not give any consideration to the quite serious concerns from the Legislation Design and Advisory Committee, from the New Zealand Law Society, and from the Clerk of the House of Representatives about the contradictory provisions in this Electoral (Integrity) Amendment Bill and the provisions of the Parliamentary Privilege Act 2014. I would draw to your attention that the Parliamentary Privilege Act was passed unanimously by this Parliament in 2014. I particularly want to draw to the attention of the committee to section 23 of the Parliamentary Privilege Act—

💬 SPEAKER: Order! I’m now going to ask the member to refrain from debating the amendment. I think all we’re talking about is whether we should have a debate or not; we are not having the substance of the debate. I was slightly diverted and I probably let the member go on for too long, and I apologise.

The two key issues that require the committee of the whole House to have this instruction resolve the core issue of contradiction around whether members of Parliament can be dismissed, and the second core issue is in respect of what documents of the House of Representatives might be able to be considered in any judicial review proceedings. The reason that these issues of the interaction between the Parliamentary Privilege Act and this electoral bill are so important is that they go to the core of the New Zealand Bill of Rights Act compliance or non-compliance issues—a point that was made very strongly by the New Zealand Law Society and also by the Legislation Design and Advisory Committee. The concern of those three very serious bodies is that if we do not simultaneously make amendments to the Parliamentary Privilege Act, we’re going to end up with a complete pickle around the core legal issues of the rights of members of Parliament to stand in this House and to represent their communities.

You see, the issue is around whether these two Acts can be compatible without amendment. What the Legislation Design and Advisory Committee said to the select committee was that the uncertainties that would exist without clarifying these key issues about the rights of members of Parliament to sit in this House and what documents from this Parliament may be used in court procedures—unless we resolve those issues, then the committee of the whole House cannot be at all sure about exactly what it is putting in law and what the rights are of members of this House. I would say to you, Mr Speaker, and to fellow members of the House, that if we’re going to go down this road of making very significant changes to the Electoral Act, then we need to provide legal certainty. We need to be able to provide both members and Officers of this Parliament such as the Clerk, and the courts of New Zealand with certainty about these very important questions that have been raised by those three submitters.

Now, I have tabled an amendment that cannot be considered in the committee stage unless this instruction is provided. Now is not the time to debate the merits of that amendment. What it is the time to do is to say that if Parliament is to do its job, it needs to be able to consider these issues simultaneously, and that we need to make sure that we have got a Parliamentary Privilege Act and an Electoral Act that are not contradictory and not creating confusion, both for members of Parliament and the officers that serve in this House.

It’s appropriate that I directly quote what the Legislation Design and Advisory Committee said in this regard: “We recommend the Bill be amended to ensure that the Parliamentary Privilege Act 2014 is not a barrier to the availability of judicial review as a remedy for [members of Parliament] who are removed under the [provisions of the Electoral (Integrity) Amendment Bill].” To make further the point that both they and the Law Society make, the certificate that’s been provided by the Attorney-General that this bill does comply with the New Zealand Bill of Rights Act depends very heavily on a member of Parliament being able to judicially review a decision that has involved their dismissal from this House. What the judicial advisory committee is saying is that that provision is in serious doubt if it is not possible for the key documents for such a judicial review to proceed. So, for instance, if there was an issue about whether a member of Parliament had voted, what they’d said in this Chamber, or what they had done in a select committee, what the judicial advisory committee is saying to this House is that there is real confusion about whether any of those matters could be considered.

The other issue that is raised by the Clerk of the House—and, again, I think it is valuable to read the exact words in their submission—is that “the freedom of speech privilege is one of the oldest and perhaps the most foundational [in its] statutory basis … established in Article 9 of the Bill of Rights 1688, [and it] was [unanimously] reaffirmed by Parliament in the Parliamentary Privilege Act 2014.” It goes on to say that if the Electoral (Integrity) Amendment Bill is passed in its current form, it brings into real doubt the provisions that were specifically provided for by this Parliament when it passed that Act back in 2014. Quite specifically, the Clerk of the House recommends that we make the very sorts of amendments that the committee would not be able to consider unless this instruction to the committee is provided for.

💬 SPEAKER: OK. I have let the member run, substantially, for a long time on the substance of his amendment rather than on the question of whether we should consider it or not. In the remaining two minutes, he will focus on the issue before the committee now.

The important issue that the committee is considering with my motion is: will it be possible for members of this House, during the committee stage, to move amendments that relate to the Parliamentary Privilege Act? Now, the advice that I’ve received from the Clerk is that it is possible to consider a very narrow amendment relating to the very specific provisions in the Electoral (Integrity) Amendment Bill, but it is only possible to be able to make absolutely clear that the provisions of the Parliamentary Privilege Act 2014 carry the day with this instruction.

Now, I have tabled those amendments. They are consistent with the sort of advice we had at select committee as to how we could repair this legal defect in the Electoral (Integrity) Amendment Bill. I think it would be a serious error of this Parliament to go into its committee stage and not be able to consider all of the amendments to make this into a workable piece of legislation and address those concerns that I think all members of the committee would accept, whether it be the Clerk of the House, the New Zealand Law Society, or the Legislation Design and Advisory Committee—that it would be negligent of this committee to ignore that advice and not consider this important issue of clarification, particularly when we are talking about rights that go back 330 years, and ensuring that the Parliament has clarity in this area through the instruction that National members believe we should provide to the committee.

Before I do hear from the member—and I don’t want to appear to be prejudicing anything the member might say—I have let the Hon Dr Nick Smith go into the substance of the debate because it is an important area, and I thought it was, at the margin, OK to stretch the Standing Orders with that regard. That will not continue from—I was actually preparing to hear other members from this side. But I’m going to give the call—sorry. I’ll take the next member.

The Government opposes this motion on two principal grounds. The first is that the very clear prohibition in the Parliamentary Privilege Act relating to a motion of this House being the basis on which a member is expelled from this House is not encroached upon by the Electoral (Integrity) Amendment Bill. There is no doubt or confusion about that. That is very clear. Any decision under the Electoral (Integrity) Amendment Bill is, effectively, a decision of a member’s party or his or her caucus; it is not a decision of this House.

The second point is that in the case of Prebble v Awatere Huata, it was very clear that the judiciary were very sensitive to the relationship of comity between the judiciary and Parliament. Although they did not come up with a unanimous conclusion—

💬 SPEAKER: Order! The member will resume his seat. I did warn members at the end of Dr Smith’s speech that I would not entertain discussion on the substance of the amendment, and the member is now arguing the substance of the issue.

💬 Hon Gerry Brownlee: I raise a point of order, Mr Speaker. I think it will be very difficult for anyone following this debate to understand what was actually being discussed, relating to the motion, without there being some degree of promoting its intent and, in this case, attempting to defeat its intent, so I would seek leave of the House for this to be a slightly wider debate than would normally be permitted. I’m not trying to challenge your authority, Mr Speaker. In the end, you determine how many people speak on this, but I think it would be better for people listening if there could be some elucidation of, firstly, the point of the motion, which we’ve had—and you’ve been generous in that regard—but then also hearing from others who might either add to that or, in the case of the Hon Andrew Little, wish to refute some of the claims made about that motion.

💬 SPEAKER: The member has sought leave for a wider than the normal narrow debate on a motion of this type to be held. Is there any objection to that? There is objection.

So I’m just going to go back and say once again I think we’ve had a clear explanation of what this is about and the reasons for it from Dr Smith. All we are talking about now is whether we should change the rules for the committee stage in order to have the debate which has been outlined.

My concluding remarks are simply that the Electoral (Integrity) Amendment Bill is itself very narrow. It does not encroach on any other principle in any other legislation, and therefore—

💬 Chris Bishop: How can you say that?

—it is possible for the next stage of the debate, the committee of the whole House, to focus just on the bill—

💬 Chris Bishop: You haven’t even read the submissions.

—without raising any concerns about constitutionality in any other dimension at all.

And I’m just going to ask Mr Bishop to wait till he gets a call before he starts bringing me into the debate.

I’ll just make a brief submission, because I was the chair of the Privileges Committee which examined the Parliamentary Privilege Bill—now Act—in some detail. As you know, it arose out of the decision of the Supreme Court in Attorney-General v Leigh, but the opportunity was taken to at least partially codify the law of parliamentary privilege, and so that legislation was passed in 2014. So, to a certain extent, the authorities relied on by the Minister of Justice have limited effect because, of course, the legislation was not in force at the time of the Awatere Huata case. I’m very concerned that unless the committee has an opportunity to look at these issues, the interrelationship between the Parliamentary Privilege Act 2014 and the Electoral (Integrity) Amendment Bill, this House and this Parliament could be in danger of legislative negligence.

I certainly don’t want to get into the substance of the debate but simply say that a number of people who have made submissions to the Justice Committee have emphasised the importance of Parliament addressing the relationship between the two pieces of legislation, because at the present time, if the bill is passed in its current form without any amendment, there could be a clash set up for the courts. So that’s the reason why there needs to be a debate.

I am very conscious—I don’t want to get into the substance. But I simply refer to the submissions of the Clerk of the House, the New Zealand Law Society, and the Legislation Design and Advisory Committee, which have all pointed out the need for the committee, and indeed the House, to grapple with this interrelationship.

Thank you very much, Mr Speaker. Look, it’s very important that Parliament considers this issue. The protection given to the privileges that MPs enjoy and its relationship with the bill that we are debating is an extremely important one. I do want to reflect on exactly why that is. It’s important because it goes to the critical issue of judicial review and whether or not judicial review is available, because if judicial review is available for MPs that may be subject to the procedure outlined in the Electoral (Integrity) Amendment Bill, then that mitigates significantly the detriment that is potentially done to them. As Donna Awatere Huata found out in the case against Richard Prebble, she was able to have a substantive court hearing.

If judicial review is unavailable, then it is a significant impingement on the rights that MPs enjoy. I’m not saying that as a party political statement; that is the written legal opinion that the Attorney-General has provided. So judicial review is absolutely critical, but a decisive issue as to whether or not judicial review is actually available to members of Parliament is the issue around parliamentary privilege. The Justice Committee heard evidence from a number of august bodies about whether or not judicial review was available. There were submissions made by the New Zealand Law Society quoting—

💬 SPEAKER: Order! I’m now going to ask the member to address—very directly and only—the question of whether this motion should be agreed to.

Sir, I’m coming to the point around privilege, and some of the submissions that were made to the committee around parliamentary privilege in particular. It’s very important that Parliament gets to the bottom of this issue, because, in Prebble v Awatere Huata, the parties in that case proceeded on the assumption that privilege was not impinged. Three judges in that case actually expressly said that it was not necessary to decide any concluded view on the scope of parliamentary privilege. Justice Gault made similar remarks, and so did Justice Keith. Of course, since then we have had the passage of the Parliamentary Privilege Act 2014. So, in the time between Prebble v Awatere Huata and today, we have passed a very important piece of legislation. As members will well know, that Act, actually, in some ways codifies parliamentary privilege following the Leigh litigation but also the Buchanan v Jennings litigation. It also adopts a very expansive definition of “proceedings in Parliament”: “all words spoken and acts done in the course of, or the purposes of or incidental to, the transacting of the business of the House or of a committee.”

Now, the Minister of Justice, speaking in the motion on this instruction to the committee, just made mention that the bill that we are debating in no way touches the other enactments that exist in New Zealand statute law. I do have to ask how exactly he can make that statement, because I think it is beyond doubt that there is at least some tension between the Parliamentary Privilege Act, which essentially says that the courts can’t inquire—

💬 SPEAKER: All right. This is the second warning for the member. There won’t be another one. He is, again, discussing the substance of the amendment. The issue is whether it should be heard.

Mr Speaker, I’ll just reiterate again that the issue of whether or not privilege applies is a critical one. It’s important that Parliament gets to the bottom of it, and that’s exactly why we need to have the amendment in scope so that the committee of the whole House can get to the bottom of it. I think I’ve made all the remarks I need to make around why exactly that’s required.

I move, That the question be now put.

Motion agreed to.