Points of Order — COVID-19 Public Health Response Amendment Bill (No 2)—Voting Process

Point of order. I raise a matter of order that has some implications for the business of the House this afternoon, and it relates to an exchange and decision that was made by the committee of the whole House in the COVID-19 response bill that was being debated. During voting on Part 1 of that bill, a Supplementary Order Paper (SOP) in the name of Melissa Lee was called on the voices for the Ayes. The result was not challenged, and the chair of the committee moved on to consider the next SOP. What followed was a challenge to that ruling, which led the chair to then declare the result of Melissa Lee’s SOP for the Noes, and a party vote was called for.

Now, my submission to you, Mr Speaker, is that that was an invalid process and outside of Standing Orders, particularly Standing Order 141, which says, “The Speaker asks members to answer ‘Aye’ or ‘No’ to the question and states the result of the voice vote. Any member present may then call for a further vote to be held.” That did not happen. Furthermore, in Speakers’ rulings we have a requirement, at Speaker’s ruling 66/2, that “When the Speaker declares the result on the voices, that, unless challenged, is final and may not be disputed.” Speaker’s ruling 67/1 states that “If members want a party vote, they must challenge the Speaker at the time when the result is declared. A party vote does not follow automatically because a voice is given for the Noes.” In the case that we’re discussing, I’m sure it would equally apply if the voice was for the Ayes.

This is important because my submission to you is that a vote validly cast means that Ms Lee’s SOP stands part of the bill that we will be debating after question time in its third reading. I seek your considered ruling upholding Standing Order 141 and the Speakers’ rulings 66/2 and 67/1.

Speaking to that point of order, Mr Speaker. I was in the House for that exchange. As the Speaker will be aware, having been a presiding officer in committee stage of the House on many, many occasions, it is not at all unusual after the presiding officer declares what their view on the voice vote was for there to be a challenge to that. It happens almost every day where the presiding officer will say, “The Ayes have it.”, and the Opposition will say, “No, no, the Noes have it.” The theatre of that happens in this House almost every day. In this particular case, the presiding officer indicated that perhaps she’d changed her mind on the voice vote and how the voice vote went. Either way, a party vote was then called for and a party vote was held.

Once the party vote has been held, it is the party vote that is the definitive vote, and that has always been the case except where a personal vote is then called for and the presiding officer determines that a personal vote is appropriate, and there are limited reasons for doing that. So in this case, the committee did hold a vote, the vote was conclusive, and then ultimately the bill as reported back by the committee—and the report-back motion, from memory, was a unanimous one; the report back to the House from committee was accepted unanimously by the House. It is therefore the bill as reported back by the chairperson of the committee that the House now considers.

Speaking to that point. Thank you, Mr Speaker. I wasn’t in the committee at that time. However, I have watched the video of the exchange very, very closely, and I agree with the Leader of the House, with the first half of his description on what normally happens during the taking of a vote.

In respect of what happened this morning, his recollection of it is very different from mine, and that is this: a party vote was not called for. The Chair declared the result, and I draw the House’s attention back to Speakers’ rulings, which are very clear that if the members want a party vote, they must challenge the Speaker at the time when the result is declared. It is that that did not happen. And, indeed, when—regardless of the merits or otherwise of this, whether this was within the Standing Orders—the Chair then declared a Noes vote, the Government whip in the chair called Aye to this. Therefore, it was only very, very belatedly, and certainly after the result of the vote that was declared, that a party vote was taken.

In respect of the summing up of the committee of the whole House, what I would suggest to the House is that, indeed, we had two decisions that were declared by the Chair. My submission to you is that it was the first decision that was valid and not the second one, according to the Standing Orders.

Well, speaking further to the point of order, Mr Speaker—

💬 DEPUTY SPEAKER: I’ll just take this one.

Ultimately, the pace at which the committee of the House proceeds is the sole determination of the Chair. The Chair had not moved on to any further business, therefore the vote had not been concluded. In fact, only about a moment later there was an instance where the National Party did not call for a party vote immediately and the Chair sat there for a good 15 seconds looking at the whip from the National Party in silence to see whether they were going to call for a vote. The pace at which the Chair determines a vote has been concluded is a sole matter for the Chair.

💬 Hon Michael Woodhouse: Speaking to that point—my final point, I hope.

💬 DEPUTY SPEAKER: Final one—Michael Woodhouse.

That submission is not consistent with the video transcript of what occurred this morning. I wasn’t in the Chamber, but I know, because I watched that video, the business having been concluded, that the Chair went on to consider a Supplementary Order Paper (SOP) in the name of David Seymour. I know that, because she had moved on to that item of business. There is no question that the result of the vote on Melissa Lee’s SOP having been declared, the Chair saw the matter having been concluded and moved on to Mr Seymour’s SOP. There is no question that a challenge was sought, and Speakers’ rulings are clear: if the House wants to challenge a vote, it has to do so at that time.

Kāti rā, tēnā rā tātou. Can I thank the Hon Michael Woodhouse for raising this matter, and also the matters that the Hon Chris Hipkins has also raised. I’ve watched the video and I have read the draft Hansard. I’ve got a written response, which covers most of the things that both members have raised. Can I just say that it’s not easy being a presiding officer and getting it all perfect, nor is it easy for members either, and on a number of occasions whilst presiding I myself have gone back for a party vote that wasn’t called for, on both sides of the House.

But, to be more specific, when the presiding officer declares the result of a vote, that is almost always the end of the matter. When a vote is decided on the voices, a presiding officer can expect that, in all normal circumstances, the Government will be the majority—and that’s from McGee, page 247. However, in this instance, the Chairperson declared for the Ayes on an Opposition amendment. She subsequently admitted to the committee that she had made an error in declaring the result that way when it was drawn to her attention. A party vote then resolved the matter.

Where the presiding officer realises they have made an error, it is within their power to go back and correct it. That happens occasionally where a presiding officer declares the result of a party vote incorrectly, either because the votes were added incorrectly or because an error was made in announcing the result. In those instances, the Speaker corrects it without further reference to the House. In my view, this is a similar situation. It is my ruling that the Chairperson corrected the error by holding a party vote, and the result of that vote stands.

Point of order. Thank you, Mr Speaker. Thank you for the ruling, and I agree with you that the role of the presiding officer is indeed an occasionally thankless and always difficult one. McGee and Speakers’ rulings also go on to say that the voice vote isn’t a contest for loudness, it’s not automatically the right of the majority to have it declared; otherwise we’re wasting our time on the consideration of various parts of a bill. My concern with the way in which the ruling is worded is it’s very difficult for members of the committee or the House to know whether a presiding officer has indeed made a mistake or whether it was his or her intention to call the way that they did. One needs to rely on the words meaning what they mean. The Standing Orders provide for this.

Firstly, if there is an error during a vote, whips or personal voters are free to change that vote before the result is declared, but, however it is arrived at, the declaration of a result is final and the House has it within its power by the leave of the House to change it. My suggestion to you, Mr Speaker, is that the committee had it within its power to consider that. If the whip, recognising her error—because I submit that she also made a mistake in not calling for the party vote—could have sought the leave of the committee for a party vote to have been held at that point, and she did. So my question is, firstly, is this a Speaker’s ruling that will go on to Speakers’ rulings in the future and how do we reconcile that with the existing powers of the House and the committee to fix its errors by leave?

💬 Hon Chris Hipkins: Speaking to that point—

No, I don’t—

💬 Hon Chris Hipkins: Speaking to that point of order, Mr Speaker.

Well, it’s not really a point of order, so I’m just going to rule that I have ruled and that is the end of the matter, and we will continue on to the business of the day.