Points of Order — Speaker’s Ruling—Admissibility of Minister’s Amendments, Criteria

Thank you, Mr Speaker. I waited until the end of the last question to raise this point of order. We didn’t get an opportunity to do so last night; you were on your feet when you put the House back into committee. The ruling that you gave warrants some clarification. I acknowledge that there was considerable thought put into that, and it was quite extensive. However, Speakers’ decisions are guided by previous rulings and established practices, and it is noteworthy that there was no reference to Speakers’ rulings at all throughout your ruling. To aid our understanding and that of the House, could you please explain what precedent you looked at and relied on to land on the ruling you did?

Well, I think your first assumption that all Speakers’ rulings rely on previous Speakers’ rulings belies the fact that, in fact, Speakers’ rulings are Speakers’ rulings—and that’s exactly what was given last night. I looked, over a period of days, at the extensive list of projects, which was well known by people. I heard the advice, obviously, from the clerks and spent some time looking through the book that talks about parliamentary practice in New Zealand. That’s a book that draws on a previous publication by a previous Clerk, and has been updated by our current Clerk. In that, there’s an interesting statement that—sorry, I can’t call to mind exactly the page and paragraph number. It essentially says that there will always be some degree of private gain or benefit from Government bills.

I think when you start looking through other aspects that were looked at, of which, of course, one was: is the amendment proposed in scope? There’s another page in there that lists about, I think, in the order of about maybe eight to 10 different points that an amendment must comply with. The amendment complied with all of those, in my opinion.

The next point which was relevant was the three tests that have to be applied for a bill to be considered a private bill as opposed to a Government bill. I made it very clear that I thought it failed on the third part of that test. Now, I’m sorry I don’t have references for you because there are some that I can point to, and I’m happy to bring that back to the House at some point or to give to you personally if you want them.

Point of order. Thank you very much for that. I didn’t make an assumption, sir. The opening line of my point of order was actually from McGee, the book that you’ve referred to yourself, page 92: “The Speaker’s decisions are guided by previous rulings and established practices”.

💬 SPEAKER: What did they do on day one?

Well, I don’t know what they were up to 100 years ago in Westminster—

💬 SPEAKER: No, well that’s the point—

And neither do you—

Sorry, let me speak. A hundred years ago—or more, in fact—private bills were brought in because of gaps in legislation. One of the original reasons for it, you’ll find in Wilson, which is the latest tome that we tend to refer to; it talks about a person wanting a divorce, for example, would need to petition Parliament to have an Act of Parliament passed for their private benefit. Now, I think we’ve gone a long way from that. The other thing is that if you look at the recent bills that have been passed that are of a private nature, there is a very specific benefit for any of the individuals who are seeking that preferment. I think this is just another step in Parliament itself claiming its right to legislate, which I think is important.

Point of order, Mr Speaker. I had an opportunity to review your ruling in writing this afternoon, which is always helpful. Your ruling, particularly with regard to the third test that you set out there, is problematic in the sense that if you applied—so, in the third test, you seem to be relying on the fact that there is no guaranteed conferred benefit from truncating the process. The people who are listed in the schedule go through a faster process, but the outcome of that is not guaranteed.

I thought about how, if that was to apply to other legislation that might come before the House, that could be very problematic, because I don’t think that is the way the Parliament could continue to interpret such an approach. For example, if the Government was dealing with legislation regarding crimes, and made the decision that a new criminal process would apply to categories of offender, and then a Minister was to table an amendment that said, “except for these specific cases”, it would be allowed; therefore, those specific cases would go to a different process—go, say, immediately to the Supreme Court. Under the ruling that you’ve made, that would be allowable because the outcome is not guaranteed. It’s short-circuiting the process for a particular group of named offenders, whilst the other category of people would all have to go through the regular process. That’s somewhat of an alarming concept for this House.

I actually think you’ve applied—this bill deals with economic interests, but there are other private interests the House deals with, including issues around liberty and rights. If you applied that—exactly the same ruling that you have made—to a question before the House of liberty and rights, you’re saying that the House can specify in a public bill, in a Government bill, that particular people could have a different set of rights in terms of the process of the law that may apply to them. I think that would be very problematic.

Well, that’s a view that I’d like to think further on. I did think about that. I would say, for example, electoral law carves people out already in general legislation. A lot of alcohol-related law carves people out. There are different classes of criminal offence in almost every bill that’s related to the fight the Parliament works against crime. It’s not unusual to have people carved out. The issue in this case was in that schedule, if a company or an entity that is not a public entity is getting the opportunity ahead of someone else to go through the short-track process, what is the extent to the private benefit? The question then becomes: what is the public benefit in the activity that they’re asking to be engaged in? I think, on that balance, I made the call that the list was acceptable.

Mr Speaker, I think your comments there highlight the problem. The examples that you’ve just given are examples of where Parliament has treated classes of people or organisations differently—perfectly acceptable for the Parliament to do that in a public bill. It’s where specifically named individual people or entities are being treated differently that it becomes a question of whether or not it is a private bill. It is perfectly acceptable in criminal legislation to treat classes of people differently in terms of the nature of their offending or so on, but then to say that these named individuals would be treated differently, that would be very, very problematic for the Parliament to adopt a process that allowed that to happen. Having looked carefully at the ruling that you made last night, if you applied that same ruling to criminal law, you could end up with exactly the same conclusion.

Speaking to the point of order. I’m not sure what else is to be gained from going through this, because you’ve made a ruling, but the only comment I would make is that Parliament has already considered a bill like this. It was called the COVID-19 Recovery (Fast-track Consenting) Act 2020—

💬 Hon Rachel Brooking: It’s different.

Well, it’s not, and that’s the point: it lists specific projects, including private projects. That bill was acceptable three years ago. I accept that the current version of fast track is wider in scope, it has more projects, and it’s a one-stop shop, but that’s not relevant to the issue.

💬 Rt Hon Chris Hipkins: Yes, it is.

No, it’s not, because Parliament, it is a matter—well, you’ve got to the Government’s preferred outcome with a different form of reasoning. The Government’s reasoning is that it is a matter of public policy that the Government can expedite projects. Our view is that privately owned developments can have public benefits. We spent four hours this morning litigating the fact that Meridian Energy could build a publicly owned—in the sense that the Government owns 51 percent of Meridian—wind farm that would be the exact same as a privately funded and owned wind farm by Contact Energy, but both have public benefits. That’s our view. I don’t want to relitigate that. The only point I’d make is that you’ve made a ruling; you should get on with it.

Can I just suggest, I do hope you were referring to my reaching a position that the Government wanted was in terms of all Governments, as opposed to my being particularly persuaded by the current Government. I’m not unmoved in my decision by a consent that was granted under the COVID legislation for a project that exists in the electorate that I previously represented. That has been incredibly problematic and is entirely a private project. For those who argued that my ruling is wrong and wanted precedence, then that would be one that I would certainly quote to them.

Point of order, Mr Speaker. I think the intervention by Chris Bishop actually raises serious concerns. Chris Bishop’s suggestion that you have reached a conclusion that is the Government’s preferred position actually undermines your independence, and certainly—[Interruption]

💬 SPEAKER: While a point of order is being taken, no one else will express an opinion.

—and certainly draws into question all members of Parliament’s ability to have confidence in the ruling you made last night. The ruling you made last night began with a suggestion that the Government took a policy position and the Opposition took a procedural position. As the Speaker of the House of Representatives, it is very clear that your job is procedural, not policy. The Government’s positions on policy should have no bearing on the decisions that you make as Speaker. The intervention that we just had from the Leader of the House suggests that it has—that’s wrong.

It most certainly did not have bearing on my consideration. As I’ve said, I’ve spent quite some days looking at this particular issue and reaching my own conclusion on it. I can’t help but be in some way influenced by previous experiences that I’ve had, particularly with regards to Christchurch, where there was significant legislation that, in my opinion, prevented faster progress. I’ve just given you the example of a project in the electorate that I formerly represented that is entirely a private benefit but was consented under the COVID legislation. I took that as being Parliament understanding that there are times when the intersection between public and private benefit might occur. The question in my head then was to what extent is the private benefit greater than the public interest in the project progressing? That’s where we’re going to leave the discussion. Thank you for the point of order.

Point of order. Thank you. I don’t intend to relitigate that, but given the House is limited in the processes available to it when it’s under urgency, the normal way in which we would express this is not available to us. The only option we have available to us now is that we, regrettably, indicate that where you as Speaker had the full confidence of the House, that is no longer the case.

Well, that’s all right. You’ve got a mechanism to signal that.