Referendums Framework Bill

I want to draw the House’s attention to clause 85(a) of Part 4 of this bill. I’m going to read directly what it says because it has been described by the Regulations Review Committee unanimously—this is Labour members of Parliament as well who have said that this is a “Henry VIII” provision. This is one of those provisions which the Legislation Design and Advisory Committee and the Regulations Review Committee have said enables Cabinet to overrule law that’s passed by the Parliament. What the bill says is that at any time before the start of the regulation period, the Governor-General by Order in Council—that means Cabinet—can declare an advertisement, a class of advertisement, an activity, or a class of activity not to be a referendum advertisement for the purpose of the Act.

Now, that’s extraordinary. What we’re allowing is—let’s say that they want to describe any ad that’s run by the Green Party promoting people to vote for a Yes vote on the cannabis referendum. They could pass a regulation and say, “Oh, that’s not an advertisement for the purposes of the Act.”, despite the fact that it would blatantly meet the legal test in the Electoral Act and replicated in this bill or an advertisement that was intended to influence voters. In other words, I have confidence in the current definition in our Electoral Act as to what is a political advertisement: it is an advertisement that attempts to persuade people to vote a particular way—a pretty common-sense, fair definition. So why on earth is the Government promoting a bill that will allow Cabinet to overrule that definition? That is incredibly serious.

I’d love to hear in the House from Rino Tirikatene. He voted at the Regulations Review Committee for a letter to the Justice Committee saying “It should be changed; it’s a ‘Henry VIII’ provision.” I also say that was Duncan Webb. Duncan Webb is a lawyer from Christchurch. That Labour member of Parliament said, “This provision 85 is a ‘Henry VIII’ provision that overrides Parliament and should not be allowed.” I’d also love to hear from Jo Luxton. She too is a member of the Regulations Review Committee. Check the minutes; she’s probably forgotten. She said and wrote unanimously from the Regulations Review Committee saying that clause 85 of this bill is a “Henry VIII” provision that gives the power for Cabinet to overrule parliamentary law that this Parliament has passed.

And here’s the part that really shows how disingenuous the Government is. The Regulations Review Committee even provided the Justice Committee with the amendments that would fix this. We moved at the select committee that those amendments be adopted and it be fixed—it’s wrong; it’s unfair. What did the Labour members of that committee decide to do? Their answer was, “Oh, we’ve just got to do what the Minister says. This is just part of a bill of disenfranchising Parliament, taking the decisions away from Parliament, and, actually, we don’t care if Cabinet is able to override the Parliament.” Well, I say they should care. They might be naive members that are currently in Government, but they would be screaming from the rooftops if you had Cabinet wanting to pass regulations that could overrule law that has been passed by the Parliament.

So the question I want to put to the Minister is: why did the Government not accept unanimously the recommendations of the Regulations Review Committee to clause 85(a) of the bill? And, more particularly, why does the Government want to reserve the power to screw the scrum on the information and advertising campaigns that will operate on the referendum—whatever they might be: euthanasia, abortion? As I say, this bill gives a blank cheque for the Government to have referendum on any topic it likes. Here in this provision we are giving powers to Cabinet to be able to redefine what an advertisement is. It’s wrong, it should be changed, and I’d love a Government member—particularly Jo Luxton who was on the Regulations Review Committee that said it was a “Henry VIII”—to say why she has not followed through on that and is now proposing to vote for that provision.

Thank you, Madam Chair. Part 4, in relation to clause 85—I’ve chosen to focus on that. I don’t have many options available. It’s either that or 84, and I’ll get to that too. But clause 85 “Regulations”—I’ll make slightly different points in relation to those of Dr Nick Smith. I wouldn’t try your patience by repetition, but his point is a very good one on which I would like to build.

Before I, sort of, get into the detail of the second aspect of that—and Dr Smith’s covered the declaration of advertisements as such, referring back to a previous provision in the bill. I’d like to talk about the prescribing of forms, but just to take a step back before I do that. “The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:”, that’s what we’re told that can be done by the Governor-General. But just to be clear, that word “may”—one doesn’t instruct the Sovereign to do things, so one suggests that Her Excellency, as is currently the case, may do these things, but that’s really a nicety. The reality is that the Governor-General would act on the advice of Ministers. So what we are looking at, just to be very clear for the sake of the record, is a set of provisions that allow, effectively, Cabinet, and a Minister who would make recommendations that would be acted upon to the Governor-General, to do the things that are set out in clause 85.

The aspect regarding declaring referendum advertisements to be such—notwithstanding that the bill already has ways of determining exactly what those things are. That is a “Henry VIII” provision, as Dr Smith has pointed out. I’d like to focus on the next bit, which is that the Governor-General—again, read Minister, effectively—can prescribe forms for any matter in relation to a referendum. Well, that’s very interesting, because at clause 16 of the same bill we have a provision named “Form of referendum voting paper”. So, clearly, this is captured by the “Henry VIII” clause at clause 85. So what we’ve got is that the Minister can prescribe a form for any matter in relation to a referendum, and it could hardly be clearer because clause 16, which talks about the form of a referendum voting paper, has the word “form” and the word “referendum” in it. So the alignment is just about perfect that this is exactly what we’re talking about.

In that clause—the one that would apply to the Electoral Commission—what we see is that the Electoral Commission can make such a decision and can decide how the law is to be applied. So what we, effectively, have is a quasi-judicial function being carried out by the Electoral Commission that could be overridden by the executive part of the Government. That’s at the heart of what it is to have a “Henry VIII” power. In constitutional terms, that’s—well, it seems a little bit egregious. I don’t know if you can have something that’s a little bit egregious. What the hell, it’s egregious. And so that’s something that we’d like the Minister to address for the record, because, just to be very clear, that’s something on which we are very unhappy about on this side of the Chamber.

The other aspect which I’ll touch on more quickly within Part 4 is the duty of the Electoral Commission at clause 84. What we see there is that “(1) If the Electoral Commission believes that a person has committed an offence under this Act, [they] must report the facts on which that belief is based to the New Zealand Police.” What we don’t have then is any requirement that the Electoral Commission also notify the person concerned who may have committed an offence and the belief that the Electoral Commission has. So that seems problematic in the context of the principles of natural justice, which have been long held to include that a person has the right to be heard.

So with no opportunity to correct the record or, perhaps, negotiate a manner in which certain conduct could be reduced to below the threshold of an offence, the Electoral Commission must, as a first and only step according to this clause, report the facts as they see them. Their belief, as formed in their somewhat subjective opinion—and I don’t mean that in any way to suggest that it would be improperly reached. But none the less, it is a decision maker coming to a belief without recourse or reference to the person who has conducted or committed the apparent offence. That seems to me unfortunate, at the very least, for the reasons that I’ve described.

So for that reason, Part 4 is hardly able to be supported on this side of the Chamber. It’s overbearing and unfortunate in its inability to allow proper participation.

I was hoping the Minister in the chair, Andrew Little, would take the opportunity to address the question. We have a select committee of Parliament, the Regulations Review Committee, unanimously saying that Part 4 of this bill contains “Henry VIII” powers. Parliament deserves an explanation from some member of the Government as to why they want to take those sorts of powers. It is simply unacceptable that nobody’s prepared to provide some sort of explanation.

Here’s my suspicion: we know in a very unusual way the Government has decided that an information campaign is going to be provided around the referendum, and that that information campaign, inconsistent with what Labour said in Opposition, would be provided by the Ministry of Justice. Now, what this provision in clause 85 would do is override the legal test of what is an advertisement. What we have in clause 39 is a very reasonable definition, that if you are running a campaign and an advertisement, then the Electoral Commission—I’ve had experience with the Electoral Commission around the definition of what is an electoral advertisement, because we don’t want to have people saying some basic comment in an area suddenly be needing a fine. I’ve actually found the Electoral Commission—and there have been court decisions—very fair in what is an electoral advertisement. But here’s the mischief that could practically come with clause 85. On the issue of recreational cannabis we all know the Drug Foundation has a very pro-cannabis legalisation point of view. The Government, under this provision, could just pass a regulation and just say that any of the information as provided by the Drug Foundation, even though the law says it’s an advertisement persuading people to vote Yes to dope, actually, with a regulation under this section could be excluded from those expenditure limits and those regulations.

Now, surely these members of the House can see that’s wrong. You can’t screw an argument by saying, “Well, some people can advertise freely.”—and that’s what it says. It says that “declaring an advertisement, a class of advertisements, an activity, or a class of activities not to be a referendum advertisement” for the purpose of the Act. In other words, it’s saying you could pass a regulation to say anything that the ministry says, anything that the Drug Foundation says, well, that’s not an advertisement. As I say, that is very significant for the referendum because, effectively, it gives the Government that free hand to be able to put tight regulations on those that might want to express one point of view but exempt the others from any of the restrictions.

I say again to this Parliament, four Labour members of Parliament on the Regulations Review Committee said that this provision contained “Henry VIII” powers. They recommend change. Others recommend change. The Government in its sort of bull-headed way is saying “Well, we don’t give a shoot. We just want all the power. We don’t mind if Cabinet overtakes the Parliament.”, just as with the base of this bill where they are taking over the role of Parliament to determine the topic and wording of referendum. They’re even going further and they’re now saying that Cabinet is going to have the right to overrule Parliament’s definition of what is an advertisement over those referendum. So again I say to the Minister in the chair and members opposite, who have not taken a single clause on Part 4, that you have the institution of Parliament and the Regulations Review Committee saying no.

The last point I’d make is this, Government members say, “Oh, there’s no mischief with this bill. You’ve got the Regulations Review Committee as a check on what questions they might have and what referendum they have.” Then we have the very check of the Regulations Review Committee applying to clause 85 and the Government says, “Well, we don’t give a stuff. We’re going to do what we’re going to do anyway.” Why would Parliament have any faith in their argument that there’s a big safeguard, it’s the Regulations Review Committee, when they’re ignoring the Regulations Review Committee on this very provision. It just shows the crock that is part of this Government’s agenda around electoral law.

This referendum bill is all about internal coalition negotiations. It’s about stacking the scrum to suit the Government. It is not about actually providing a fair and democratic process by which New Zealand can make decisions. I urge any member of the Government to get up and defend the overriding of the recommendations of the Regulations Review Committee on clause 85. [Bell rung]

This is the fourth call I’ve taken because members opposite are not prepared to address the issue. It is—

💬 Hon Member: No one cares.

Well, the member says, “Nobody cares.” Well, that reminds me, and maybe it’s the Government’s view. The Minister of Internal Affairs says you can’t trust the Parliament, that’s what she said. What this provision says is that Cabinet can override the Parliament on a definition of an electoral advertisement. My colleague has said, “It’s a shocker.” It is a shocker. But you know what’s even more shocking?

💬 Hon Kris Faafoi: What about you?

Well, I’d just love the member, rather than—

💬 Hon Member: Take a call.

Look, take a call. Here’s my question for you: yes, having a personal shot at me is very easy, why not address the issue?

💬 Hon Member: It is. It’s very easy.

Yip. So why not address the question?

💬 Hon Member: Playing the man, not the ball.

That’s right. He doesn’t have the argument about the issue. Can he explain why in clause 85 we are overruling the decision of the Regulations Review Committee that this is a “Henry VIII” clause provision? Why are we overriding the view of officials that this is inappropriate? Can he explain to me why Labour members of the Regulations Review Committee voted for a motion?

💬 Hon Kris Faafoi: Enjoy the view from over there, Dan.

Well, Mr Faafoi’s interjecting. Can he explain for me why the Labour members of the Regulations Review Committee—

💬 Hon Kris Faafoi: Enjoy the view from over there, mate.

I’m sorry?

💬 Hon Kris Faafoi: I’m talking to somebody else. Carry on.

No, I’d just love to understand: why did Labour members of the Regulations Review Committee say that this was a “Henry VIII” provision that should be changed? What’s changed Labour’s mind? Why do they want the power of Cabinet to be able to overrule Parliament on the definition of an electoral advertisement? You know what it shows? What it shows is that the current Government has absolutely no respect for the institution of Parliament. They are prepared to ride roughshod over 165 years, where referendum have only been held with the authority of Parliament at general elections. They are roughshodding over the very advice of officials around this. They’ve got a completely inconsistent approach around the different referendum that are being proposed. Now they want the power for Labour and New Zealand First sitting in the Cabinet room to overrule the law.

I just say to colleagues opposite, it seems that what Tracey Martin said is correct. When Tracey Martin said “The Government view is you can’t trust the Parliament.”, she was actually saying it was correct.

💬 Hon Kris Faafoi: Let’s put it to a vote.

Well, does the member agree with Tracey Martin’s statement that you can’t trust the Parliament? I’d love an answer. Does he agree with Tracey Martin’s view that you can’t trust the Parliament, and is that why clause 85 allows Cabinet to overrule the Parliament, something that has been opposed since the English revolution and the development of the bill of rights, and the relative powers of Parliament and Cabinet?

I have to repeat again, that shows complete disrespect for the work of the Regulations Review Committee. It shows complete disrespect for Parliament that the Minister in the chair and Labour members opposite cannot even get to their feet for five minutes and explain why the Regulations Review Committee and the serious concerns about clause 85(a)—some explanation, some debate, some view as to why this particular Government believes that “Henry VIII” - type powers that allow a Cabinet to overrule Parliament are appropriate.

It really just says to me that this Government doesn’t give a hoot about our democratic traditions. We see that in the sort of mischief that’s gone on with New Zealand First. We see it with the mischief of this overall Referendums Framework Bill. We see it in the mischief of clause 85(a). They are undermining the basic democratic traditions that are so much a part of New Zealand. It is disgraceful. It is why this will only be a one-term Government.

💬 Hon Dr David Clark: That member is disgraceful.

Well, I just simply say to the member—

💬 Hon Dr David Clark: What outrageous things to say.

Well, why don’t you get to your feet and debate the clause? Not a single Labour member has been prepared to get to their feet and to argue why the Government is passing a clause that his own Labour colleagues have said breaches basic conventions and is a “Henry VIII” power. I’d be far more reflective if a single Labour member would get to their feet and say, “This is why we’re doing it.” I can only conclude that not a single Labour member is prepared to defend it. Actually, this is just about power. This is just about Cabinet doing whatever the hell it likes and damn the democratic and parliamentary traditions that are so important to our democracy.