Electoral (Integrity) Amendment Bill

Members, we now have three amendments that relate to how the courts treat the bill, set out on Supplementary Order Papers 58, 59, and 90. These will be debated together but with the questions put separately.

I want to speak to my new clause 5A in respect of the issue of judicial review. I would like members of the committee to reflect as they walk into this Parliament every day past the picture, the painting, of the signing of the Bill of Rights. The reason that picture sits in that pivotal place is that 330 years ago, men and women gave up their lives in the Glorious Revolution to provide for some very basic rights and principles of democracy in this Parliament.

There were two very clear principles. The first of those was that no member of Parliament would be removed from office—

💬 Dr Deborah Russell: Doesn’t know his history. There was no blood in the Glorious Revolution.

—except by voters. I would like it if the screaming member opposite would take a call, because this stuff does matter, and what she and her colleagues are doing is a total disgrace for anybody that believes in democratic rights.

The second really important celebration of rights that’s reflected in that painting is freedom of speech. Let me explain why that is so relevant to the amendments in respect of new clause 5A of this bill. The Minister in the chair, Andrew Little, and the Government have repeatedly asserted that this bill complies with the Bill of Rights. Now, the problem is that the Solicitor-General, 15 years ago, in a report on an identical bill, said that it did not. We know that there are 23 constitutional experts who say it does not. We have the Law Society saying it does not. But we have one person—David Parker—who says it does comply, and members opposite hang their hats on that.

So this amendment is very simple, for the Minister in the chair. If you really believe in the integrity of your New Zealand Bill of Rights Act clearance on this bill, you will support the very simple amendment that says, “Well, let’s leave it to the courts to decide.” Righto? If they’re so sure of their ground and if they really believe in what they have repeatedly said—“This bill complies with the Bill of Rights.”—they will vote for our amendment that says that this bill takes legal effect only in the event that the High Court agrees with their view that it complies with the New Zealand Bill of Rights Act. If they don’t vote for that, members opposite are, effectively, tearing up 330 proud years of Westminster parliamentary principles in respect of that Bill of Rights, and that should send shudders down the spines of freedom-loving New Zealanders.

Here’s the second important amendment: I note that the Clerk of the House, the Law Society, and over 35 submissions before the Justice Committee said that there is legal doubt over whether you can judicially review the decision of a party leader to sack a member of Parliament. Let me tell you how serious it is. If we go back to when the Court of Appeal considered the case of Awatere Huata v Prebble, Justices Elias, Gault, Keith, Blanchard, and Tipping considered the judgment at that time, and if you read that judgment, every one of those judges said this: there is doubt as to whether these judicial review proceedings can go ahead, because, under parliamentary privilege, the courts are not meant to intrude into the business of Parliament.

💬 Hon Shane Jones: Oh, he’s making it up, as usual—making it up.

Well, I say to Mr Jones, read the decision of the Court of Appeal, and even better than that, read the submission of the Clerk of the House. Is the member Mr Jones saying that the Clerk of the House is wrong, because not only did the courts say there was very real doubt as to whether you could take judicial review proceedings but, actually, since then, we have significantly passed through this Parliament the Parliamentary Privilege Act of 2014 and the Judicial Review Procedure Act of 2016, both valued pieces of work by my colleague Chris Finlayson. So I say to the Minister in the chair: why would you not support an amendment that makes absolutely explicit that there is the right of judicial review for a member of Parliament who is to be kicked out of this Parliament by their party leader? The Office of the Clerk of the House said in their submission to the select committee that we should make this change; that there was very real legal doubt around the right of judicial review, and that was repeated by so many other submitters.

Let me also say to members opposite how important it is in terms of where they have hung their hats. David Parker, the Attorney-General, said in his New Zealand Bill of Rights Act clearance of this bill that it was very finely balanced. He accepted that it would have a chilling effect, but he said that it complied with the New Zealand Bill of Rights Act because of judicial review, and the Law Society came to the select committee and said, “The Attorney-General is wrong. There is not automatically judicial review.” So if the Government really wants to hang its hat on David Parker’s legal view around the New Zealand Bill of Rights Act, then we must absolutely provide the explicit right for judicial review with the amendment that is in my name.

I say to members opposite: I’ve been here for 27 years and I have never heard the Clerk’s Office submit against a Government bill—never. But they understand in the Clerk’s Office the way in which Parliament’s rights are being ripped up with this bill, and thus their recommendation that we at least provide some sort of check on the power of a party leader to indiscriminately dismiss a member from this House by ensuring there is judicial review.

Then there’s a third amendment in my name that is equally important. Again, the Clerk of the House, the Law Society, and an additional 32 submitters said that this bill is unworkable unless we clarify the bounds of this legislation with the Parliamentary Privilege Act, because the Parliamentary Privilege Act says the courts are not allowed to use our voting records in the House. So if you take an academic situation—Mr Darroch over there is fired from New Zealand First, he judicially reviews it, and he goes to the court and says, “But, Mr Justice, I voted with the New Zealand First Party on every single vote.” Without my amendment, Mr Darroch, that evidence of your voting record—

💬 Hon Shane Jones: I raise a point of order, Mr Chairperson. It’s a well-established tradition in the House—now, we should not take ourselves too seriously, and, obviously, that former Minister doesn’t—and it’s only right that he greet my colleague in a professional and constitutionally correct manner.

Mr Ball—I will refer to him as Mr Ball, yes.

CHAIRPERSON (Adrian Rurawhe): Yes—

Absolutely. I’d say to Mr—

CHAIRPERSON (Adrian Rurawhe): —and I’ll make that ruling while I’m on my feet, thank you. It has been a little bit too common, so I remind members to use correct names. I’m sure that, in this instance, it was not deliberate, and I want to acknowledge the Hon Dr Nick Smith.

So my claim is that, unless you support the amendment providing the clarity between the Parliamentary Privilege Act and this bill, you will not be able to use voting records in the courts to be able to proceed with a judicial review. Far from this being a controversial amendment, this is what was recommended by the Clerk’s Office, this was actually recommended by Parliamentary counsel, and this was recommended by the New Zealand Law Society.

If members opposite, including the Green Party, vote against these amendments, they are, effectively, voting for the absolute, unconstrained discretion—unchecked—of a party leader being able to dismiss an MP from Parliament without any sort of judicial check. Here’s the hard part: without these amendments, the only issues for the court will be whether the piece of paper was signed and whether the correct number of days were provided. Any sort of check on whether that is an unreasonable exceedance of the leader’s powers will not be there. So I genuinely urge this Parliament to support those amendments.

Thank you very much, Mr Chair. I’m delighted to be able to follow on from the Hon Dr Nick Smith and to endorse that very important point that he has been making about the crucial role of the judiciary in any Electoral Act scrutiny, but particularly in this one, where, frankly, the consequences of this repugnant piece of legislation are so severe. So I add my very strong support to the three Supplementary Order Papers numbered 59 and 58—both in the name of Dr Nick Smith—and 90, in the name of the member for Hutt South, Chris Bishop, which would create new clauses 5A. As Dr Nick Smith has just pointed out, they will at least provide an important check on the unbridled power and, frankly, the abusive power that is represented by the amendment bill.

You were probably conscious, as I was, that while Dr Smith was outlining his views about the judicial review observations of judges in the Awatere Huata case of about 15 years or so ago—I can’t remember exactly when—the Hon Shane Jones interjected at that point with “He’s making it up.” Now, that interjection must not go unchallenged, and so I call on the Hon Shane Jones to stand up and explain his interjection and explain why he believes that that very well-informed contribution from Dr Nick Smith was fantasy, because it most certainly wasn’t. Of course, Mr Jones won’t take that call, because he can’t. I’m not sure whether they were observations in the form of obiter or they formed a substantive part of the judgment, but those comments of the judges in that very important case that examined the relevance of electoral law in New Zealand are absolutely crucial—

💬 Hon Shane Jones: Irrelevant. Irrelevant. Irrelevant.

—in this particular instance.

Mr Jones is now calling out that they’re irrelevant. He’s gone from saying that they are fantasy to the fact that they’re irrelevant. Well, that in itself is a contradiction, Mr Jones, because, at least, there is implicit in your comment that they are irrelevant an inference that they must be correct. So thank you for at least acknowledging that, and I repeat to you the challenge that I’ve given you to stand up and justify your outrageous interjection.

Could I have one positive note, and that is we’ve moved on from clause 5 to this new clause 5A. I want to thank the Minister in the chair, Andrew Little, for the fact that he has at least been prepared to engage in the debate at regular intervals during the course of the night. But I say that because the only other contribution we’ve heard in several hours—and I’ve been here for much of the time before the dinner adjournment and entirely since the dinner adjournment—apart from party votes being cast, of course, from members of the Government was Deborah Russell’s extreme interjection a few moments ago when she was absolutely outraged by a comment that Dr Smith made about the Glorious Revolution. So I say to Dr Russell, I acknowledge her background as an academic. I, too, am a student of history, but I don’t claim to know a lot about the Glorious Revolution. So if she can find a way to make her comments about the Glorious Revolution relevant to the new clause 5A, I very much look forward to her doing so. I invite her to do so, because at least that will show that the Government is prepared to defend this indefensible piece of legislation. We have to call them out for the fact that they are sitting here—

💬 Simeon Brown: Hanging their heads in shame.

—tonight, hanging their heads in shame, as Mr Brown has commented, and failing to get involved in the debate on what I have to say is the most outrageous, undemocratic, and vile piece of legislation to come before this House since the Electoral Finance Act of 2007.

💬 Hon Shane Jones: Why? Why? Why?

There hasn’t been another bill that—why, Mr Jones? Because in both cases your party, in particular, has been determined to subvert the will of the people, to fly in the face of all fundamental Western democratic principles, and to serve—I can’t say “your ends” because that would be bringing the Chair into the debate—the ends of that party, the Labour Party, and the Green Party. It’s fascinating to note that it was those same three parties back in 2007 that were determined to inflict that monstrosity on the Parliament. I would actually argue that it was a major part of the—[Time expired]

Thank you, Mr Chair. I will say this about Deborah Russell, and that is at least she’s showing a little bit of passion for the debate. She’s about the only one who we can be sure is awake over there, and while that intervention was somewhat inarticulate, and my ears are still bleeding, at least she made some kind of contribution that wasn’t a motion that the question be put. But I do hope that she actually wants to back that up and take a call and say why she feels so passionately about the intervention of Dr Smith.

But I agree with Mr Macindoe—it is good that the Minister in the chair, Andrew Little, has been there for an extended period of time. He has really locked himself in, he is taking calls, and I certainly appreciate that. Although I want to come back to his last contribution, which was in clause 5, it’s very important that I just reference that in order to make the point I want to make in support of the new clause 5A and, in particular, Supplementary Order Papers 58 and 59.

Mr Little, in response to my intervention, said that rather than weakening the hand of an electorate MP—the ability of an electorate MP—his or her hand is strengthened by the fact that if on conscience they go against the party will and the party kicks them out, then they can go back to the electorate and have that mandate retested. Only, here is the flaw in the argument: let’s assume that that does happen and the member stands as an Independent and wins the seat. The paradox to that is that the very thing that the Minister in the chair says is designed to be maintained, which is the integrity of the proportionality of Parliament, would be even further undermined.

CHAIRPERSON (Adrian Rurawhe): And after two minutes, this part—

Which is the very good segue into what I wanted to make about—

CHAIRPERSON (Adrian Rurawhe): No, no. Let me finish, please. This is about the amendments inserting new clause 5A—how the courts treat the bill. So you need to address those issues.

That’s exactly right, but at this stage we don’t know how the courts will treat the bill. The point is that if a by-election was so poorly run that, actually, the person responsible for distorting the integrity of Parliament could well be the member of Parliament that ran the by-election or the leader of the party that lost the by-election—and Mr Little is not prepared to say, actually, what in section 55D(a) would constitute a distortion of the proportionality of the political party.

CHAIRPERSON (Adrian Rurawhe): We’re debating Supplementary Order Papers 58, 59, and 90 on the insertion of a new clause relating to how the courts treat this bill. We have gone past clause 5. Please direct your comments to these.

If a member is not happy with the circumstances that led to their expulsion from the party, and, therefore, from Parliament, they have no recourse. They have absolutely no way of challenging the decision of a tyrannical party leader who forces his or her caucus members into a two-thirds majority to turf someone out. That is unconstitutional. But, even more so, if that person does not have the right of recourse to the courts to at least review the decision—and the fact that there is such a vagueness about what would constitute the expulsion from Parliament; indeed, the Minister in the chair would not say that one definition is voting against the party line. In fact, Mr Ball was used as a hypothetical example of voting against a party line and wanting to take a judicial review on that.

Actually, in the Prebble v Awatere Huata case, the question of loyalty to the party and voting along party lines was put to the courts. The court said they could not determine that, but it was Huata’s submission that she had never voted against the ACT Party’s position and, therefore, that will not be enough in and of itself to constitute upsetting the proportionality. It could be any number of things, and the person affected by that decision has no recourse by a judicial review, no recourse under the New Zealand Bill of Rights Act, and that is the sort of framework we see in the very countries on which this bill is modelled, and I think Zimbabwe is the best country that springs to mind.

I move, That the question be now put.

Thank you very much, Mr Chair. I’d like to speak in support of the amendment tabled by the Hon Dr Nick Smith, which is to insert a new clause to allow for judicial review of vacancies. I’d like to support this Supplementary Order Paper 59 because one of the things which is missing from this bill, as it has been put forward, is the openness and transparency which this Government came to power and said they were going to champion. We’ve seen in recent days how their lack of openness and transparency has been on display. But this is an opportunity for Mr Little to take some leadership and actually show some leadership and try to address the appalling lack of accountability which we see in this piece of legislation.

What the Hon Dr Nick Smith is trying to do here is to allow the judicial review of the vacancy provisions to be inserted into this legislation. That applies to any action under sections 55A to 55D that leads to a seat becoming vacant under section 55A(2). What is important to note here is that, at the moment, there is no recourse. What we see under sections 55C and 55D is, essentially, a process whereby party leaders execute their powers in removing someone that they wish to say they no longer want to have in their caucus. They have to “state that the parliamentary leader reasonably believes that the member of Parliament concerned has acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election;”. And what that says, basically, is that these provisions aren’t safeguards. We’ve heard the Minister try and talk about safeguards. These are not safeguards. This is just a checklist. As long as the checklist has been ticked off, the party leader has the ability to fire at will.

What we need in here is we need the judicial oversight which is required and which in so many other pieces of legislation is able to actually look into those affairs, to actually check and see whether there is reasonable belief that the member of Parliament concerned has acted in a way that will distort or may distort, and that the proportionality may be distorted by that certain action. We’ve had so many examples talked about in the Chamber this afternoon of different MPs who’ve done different things: sometimes they’ve crossed the floor, sometimes they’ve spoken out, sometimes they’ve raised objection over particular issues relevant to their electorate. But what this bill allows is the party leader to, essentially, determine in their mind and just tick a box and say, “Yes, I believe that.”, when the evidence is of such a low threshold, or could be of such a low threshold, that they’re simply just using this as a fire-at-will provision.

What is required here is the judicial oversight to actually be able to test and ensure that those members of Parliament who could be affected by this legislation have some recourse, have some ability to ensure that their rights are being upheld, and judicial review is a way in which that can happen and a way in which accountability can be brought in.

My question to the Minister is, if he doesn’t believe that judicial review is required, what is he going to include in here to ensure that the accountability is? As I said, this is simply a checklist. This is not accountability. This is not a transparent process. This is simply a checklist that the leader of the particular party has to follow through with in order to be able to get rid of one of the members of their caucus. So what the Minister needs to guarantee or assure the committee and explain to the committee is how is he going to ensure—what recourse is he going to ensure those members of Parliament have, other than 21 days? It says here “21 … days … to respond to the matters”. So 21 days to, basically, write a letter back which will then be ignored, because that’s what will happen. If a party leader is determined to get rid of some member of their caucus, will they listen to what that member says when they’ve replied within 21 days? Of course not. That’s not a safeguard, that’s just a process. These are not safeguards in this legislation; it’s just a process that a leader of a party has to go through.

So I’m asking the Minister to answer some of these very important questions about the integrity of individuals who stand here in this House, who are going to be affected by this legislation, and what rights they have under this law.

Thank you, Mr Chairman. I have to say I am truly appalled that the Labour chief whip would be attempting to move closure when there are very serious questions to answer on this part and not a single call has been taken by the Minister or any member of the Labour Party.

Let me, firstly, say that the concerns that we raise are raised by very reputable organisations around these issues of judicial review and the interaction with the Parliamentary Privilege Act. So, firstly, we have the Clerk of the House in their submission to the committee saying that the right of judicial review is questionable and, secondly, for this legislation to be workable, then we need to amend the 2014 Parliamentary Privilege Act. And the Minister’s own officials raised concerns at the select committee about the interaction of this bill and the Parliamentary Privilege Act.

These questions, I say to members opposite, go to the very heart of this Parliament and the way in which it interacts with the courts. We are being negligent in our duties as members of Parliament and law makers over an issue as fundamental as the right of a member of Parliament to sit in this House or not, if we are not able to answer those clear questions.

So I put it to the Minister in the chair, does he give an absolute assurance that the provisions of his bill are judicially reviewable? He nods his head. Well, why is it that the Law Society, that the Court of Appeal in the Prebble v Awatere Huata case, and the Clerk of the House all say that there is significant uncertainty. Who else does he line up? It’s all very well for him to nod his head in the House and to say “There’s an absolute right of judicial review.” Here’s the part that’s really important, Minister. It’s one thing to have judicial review over the fact as to whether the leader of the party gave the correct notice to the Speaker—has it been signed, is it the right number of days? Here’s the key part. Is the element of the leader’s judgment that a member of Parliament has behaved in such a way to distort the proportionality of Parliament—is that value judgment going to be judicially reviewable?

The Minister in the chair—and I’m wanting it in the Hansard because constitutionally it’s important, and he’s not going to take a call. Well, it’d be better still if he takes a call, because I actually think this stuff matters, and getting it on the record matters. What we know is that there are a substantial number of lawyers who take a different view, and for Parliament to have on the record the right of judicial review is very important.

The other point I really wish to see the Minister take a call on is the amendment with respect to compliance with the New Zealand Bill of Rights Act. If the Government is so confident of its position, as the Minister has repeated so many times, that this bill is compliant with the New Zealand Bill of Rights Act—and that point is quite clearly disputed by members on this side of the Chamber, disputed by people who I think the Minister in the chair respects, that are constitutional lawyers; I think your former lecturer, Minister, from Auckland University is one of those that disputes your view that it’s compliant with the New Zealand Bill of Rights Act—let’s clear that up and put it in the hands of the High Court. If I’m proved wrong, well, look, I’ll suck it up. But why is the Government, given that this is such a disputed part of this law, not prepared to leave it to the judgment of the courts?

The third issue I’ve raised, and again I do it with a great deal of seriousness, is: are the records of Parliament that our Hansard reporters diligently take down admissible to the court? That is in very serious doubt. What my amendment seeks to do is to make absolutely plain that those judicial review proceedings, whether it be voting records, whether it be the recordings of members’ speeches, be admissible evidence because, frankly—[Time expired]

Thank you, Mr Chairman. Look, there have been a few contributions from members on the Opposition benches that I think are worthy to respond to. I’ll come to the Hon Dr Nick Smith’s points he’s raised just now—totally legitimate points to make about the justiciability of any aspect of this bill. In fact, in his first contribution he said there is legal doubt about judicial review. There is no legal doubt at all. With all due respect to Dr Smith, I think he overstates—unusual, I know—some of the arguments that have been put about concerns about justiciability. It has already been shown that legislation of this nature is justiciable. We saw it in the Prebble v Awatere Huata litigation. Where there is exercise of private power against an individual, such as a party against an MP representing them, the court will intervene to ensure that that action has been lawful. That’s what they did in the Huata case.

The problem with the amendment that is being proposed—I think it’s Supplementary Order Paper (SOP) 59. The problem with that SOP is in the opening words: “Any action”. Any action in these relevant provisions of the bill, as proposed, would be subject to judicial review. Now, that is a nonsense, because it is not every action that is subject to judicial review. The voting of two-thirds of a caucus could not possibly be subject to judicial review, but that is what the SOP calls for. It calls for the reviewability of the receipt by the Speaker of a notice. That could not possibly be subject to judicial review in a properly drafted SOP. That SOP must be voted down if we are to maintain the integrity of the lawmaking function of this Parliament. It is an absurd amendment to propose.

Where power is exercised against an individual, such as would happen in relation to a decision by a caucus conveyed to the Speaker by a leader of the party and which has the effect of removing that member of Parliament, then that has to be reviewable—and it is reviewable, as it has been proven to be reviewable in litigation on this matter. We could use the dramatic language and the exaggerated language of “unchecked, unrestrained discretion of the party leader”—there is none, and it is not what this legislation provides for.

If I can go through—with all due respect—to the Hon Tim Macindoe, whose real complaint was about unbridled power, of course, I say to the member there is no unbridled power; there are checks and balances throughout. There’s the requirement to have support of two-thirds of caucus. There is a 21-day period which can be a cooling-off period, a discussion period, a fixing-up period, as these things always are.

💬 Simeon Brown: I was very heartened by his concern at what he described as a “fire-at-will” provision. That’ll be very useful in the future to debate in this Parliament, because we don’t like that on this side of the Chamber either. But his question that he raises is: what recourse do members have? Members who are subject to this process, who might find themselves subject to a notice or would otherwise have been removed from Parliament—they do have the right of judicial review because some of the actions are properly justiciable in relation to this.

To Dr Smith’s latter point—he asked for an assurance that the provisions are reviewable. I’ve given him that assurance. The problem with Supplementary Order Paper 90 is that it is so confusing and contradictory that it wouldn’t only make a good appearance in an episode of Blackadder, it’d make a fantastic appearance in a Monty Python sketch. So this provides that “No party leader may give notice under [the relevant section] if the High Court issues a declaratory judgement that they are in breach of the New Zealand Bill of Right Act,”—but if you’ve given the notice, you’ve given the notice. A declaration is not going to undo the giving of the notice; it is just a declaration. So the argument must be that there’s going to be this appointed time where you’re just about to give it, and hopefully some declaration is going to be issued. It is an absolute nonsense. Of course, the courts are very loath to get into declarations of actions provided for under statutory actions. So that is an absurdity. It is a nonsense.

Again, for the integrity of the lawmaking function of this Parliament, it must be voted down—that’d be more embarrassing to the Inter-Parliamentary Union if that went through. So all of those issues are covered off, Mr Chairman.

Thank you very much, Mr Chair. I acknowledge you, and I also acknowledge the Minister, Andrew Little, who’s responded to various points. I think that some of the points I would disagree with, but as part of the broader context of the debate it is at least heartening that he has addressed some of the good-faith objections on this side.

I wish to speak to Supplementary Order Paper (SOP) 58, in the name of my colleague Dr Nick Smith. It’s with some trepidation that I follow his act in terms of talking about some of the issues, but to do so, I think, is very important because it follows on neatly from the point about the justiciability, as the Minister has noted—the ability, in other words, of the courts but also the desirability or otherwise of the courts examining the issues at stake and the actions that might be taken under this bill. It’s almost a truism to note that words matter. Well, words matter in terms of what has been said by members of Parliament that might lead them to being dismissed, but also the words of the SOP itself matter.

With that in mind, I intend to go through and discuss some of the particular legal niceties of this proposal that Dr Nick Smith is making. It seems to me that he’s doing so for three reasons, essentially. One is actually to protect the courts. It’s to protect the courts from criticism that would otherwise be legitimately levelled at them that they are interfering with another branch of government in a way that is unconstitutional and against the rule of law.

It’s to protect, as well, the constitution itself. This whole notion that we have a separation of powers—that Parliament makes laws and the courts apply them—is to be protected at all costs. So if we’re going to ask the courts to make determinations on the proceedings of this place, then we must give them the ability to do so clearly, such that they will have a defence against criticism for what would otherwise be interference.

Third, and finally, I believe it’s protecting the intent of the bill. The intent of the bill is not one that we support—at least not in the way that the Government is proposing it. But, again, I repeat my earlier comment that if we’re going to have this piece of legislation passed, then at least the procedures can be tidied up in a such a way as to make it less unsafe than it currently is.

Just to use an example of how a judicial review proceeding might activate the provisions of the SOP; a caucus vote must surely be able to be subject to judicial review because, like any other procedure by a “reasonable decision-maker”, the principles of natural justice must apply. So, for example, if a caucus vote that resulted in a two-thirds decision to expel a member was taken without that member himself or herself having had the right to be heard, in accordance with the principles of natural justice, then that would be a ground, I would have thought—and the law, I’m pretty sure, is on my side very clearly—for administrative or judicial review.

So the wording of the SOP then, to insert new clause 5A to insert new section 59A, talks about parliamentary privilege. The meaning of privilege, indeed the derivation of privilege, is important. The root of the word goes to aspects such as secrecy or the inviolability of information being held. So it’s the proceedings of Parliament that are privileged—that are held, not secret in strict terms but, really, essentially, as the intellectual property, if you will, of Parliament, and not of the courts—that we need, effectively, to unpack if we are to say to the courts that they are to have the power to determine whether things in this Parliament have been done correctly.

The wording of this SOP, then, begins with “In proceedings in a court or tribunal”. Now, it might be redundant to talk about a tribunal—invariably it would be a court; I presume the High Court, with its inherent jurisdiction to conduct judicial review that would examine such matters. But for the sake of good drafting, for the sake of completeness, we’re talking about the proceedings of a court or tribunal. A number of different types of proceedings of Parliament are set out, and that’s really important because without the clarity of what is included in that, we might say, for example, that the proceedings of Parliament are what we are actively engaged in right now—debates in the debating chamber. However, it’s clear from the way that the SOP is drafted that it’s not only in the House but also committee—[Time expired]

Thank you, Mr Chair. It is a good opportunity to take a call on this, the Electoral (Integrity) Amendment Bill, particularly in relation to Supplementary Order Papers (SOPs) 58 and 59. In doing so, I want to respond, in particular, to some of the comments from the Minister, because I believe that they raise more questions than they, in fact, answer, and that it would be appropriate for him to take another call in this debate to clarify these matters—because, as other members have discussed, these are very likely to be matters that will end up in court. What we know, when we stand in this Chamber and we debate pieces of legislation like this, is that the courts will look to this Hansard for guidance. They will try and imagine what was in the Minister’s head, what the intentions of these provisions were, what the intention was of how this bill should be applied—and so it is important that if the Minister has views in his head that are not clear to those of us who, in good faith, are reading this and not seeing those things that he put them on the record of Hansard and make it very clear for anyone who, in future, wants to consider the implications of this bill.

In particular, I want to look at this question about how recourse will be found if there is an abuse of process. As I’ve outlined in an earlier contribution this evening, this bill sets out a very clear process about what should happen if a party member wishes to expel somebody from Parliament. We have the 21 days of consideration, we have the right of reply from the member, we have the two-thirds vote in caucus—and I ask, what is the point of detailing all of that process if there is no enforcement mechanism available? The Minister has said, “Oh, no, that’s just simply incorrect. All of this is subject to judicial review.” And, of course, we’re very confused on this side of the Chamber by this plan, because it is my understanding from the members of the Justice Committee that questions about whether judicial review does, in fact, apply have been raised by the Law Society, have been raised by the Clerk of the House, and have, indeed, in previous cases, been raised in the Court of Appeal. So, if those authorities’ views can be dismissed that readily by the Minister of Justice, I’d suggest that we have a deeper problem.

In fact, I would like to hear from the Minister why it is that he feels so readily able to dismiss the views of the Clerk of the House and the Law Society that say that, actually, no, judicial review wouldn’t necessarily apply, and that there is some confusion. Certainly, members of the select committee emerged from the discussion of this bill with some confusion, and that is why this SOP has been put forward: because we seek clarity on this matter.

Now, why is it important? It is important because here we have a fiddling with democracy, and the piece of legislation we debate tonight in this Electoral (Integrity) Amendment Bill, as it’s so wrongly named—we are giving great power to a party leader. There is the potential for the abuse of process. There is the potential for tyrannical behaviour. There is the potential for someone to take free rein and fiddle with the representative notions that we hold so dear in this Parliament. So with so much at stake, we deserve clarity about what the enforcement mechanism will be, what the review mechanism will be, and how it will be applied. These matters are important and deserve clarification.

We have the specific example raised by the honourable Minister that of course judicial review would not apply to the question of a two-thirds vote in caucus. He took issue with the wide wording of this SOP, saying that a judicial review should not be able to apply to all matters. Of course, this is very interesting, because I would have thought that that was exactly the sort of matter that could cause great consternation, because if a party leader was to claim that two-thirds of the caucus had supported a member being expelled from that caucus but actually members of that caucus raised questions about that publicly and said, “Look, actually that’s not what went on in the caucus room. We are not satisfied with the leader’s claim that two-thirds of us supported it. Actually, we think it was quite different.”, then we would want to know whether that fact is available to be judicially reviewed. The Minister has suggested that, no, that’s the sort of thing that shouldn’t be available for judicial review, and I’d like him to elucidate on that further, because it is not apparent to me why that would be in the process if it’s at the same time not available to be enforced in any way.

I move, That the question be now put.