References to Tiriti o Waitangi/Treaty of Waitangi (Standardisation) Amendment Bill

on behalf of the Minister of Justice: I present a legislative statement—

💬 SPEAKER: You must move.

I move—

💬 Hon Kieran McAnulty: Point of order.

💬 SPEAKER: No, hang on. We’ve got a point of order here.

💬 Hon Kieran McAnulty: We accept your clarification of the situation and that, at normal times, and in the situation that occurred, it’s possible that the bill could have been discharged. We do have an additional issue here, however, which is that you called the Hon Penny Simmonds, and it was her call, and now we have a situation where another member has just attempted to move the legislative statement on this. If the Hon Penny Simmonds is not in the House, which appears to be the case—and I apologise for breaching the Standing Orders around that, but I need to say that to make this point—the Government has not taken that call.

You’ve called her; she is not here to take it; therefore, the convention is that the Government has forgone its opportunity to take that call. It has, therefore, foregone its opportunity to move the legislative statement, and it has forgone its opportunity to make the first reading introductory speech. On that basis—and I’m not disputing your ruling around the previous situation—I’m asking you to rule on this presently, that, if you have called the Hon Penny Simmonds to do so on behalf of the Government, it is improper for the Hon Simon Watts to take that call.

💬 SPEAKER: I accept that you’re right; I did ask the call and the call wasn’t taken at that time. The point is that, if you look at the effect of Speaker’s ruling 15/4, the Government can actually bring bills that are on the Order Paper before the House at any time. The bill itself can’t be discharged, so the question is that it is the Government’s decision as to where we go from here. The calls that went to the Minister is irrelevant to the position of where the Government wishes to place the bill on the Order Paper.

💬 Dr Lawrence Xu-Nan: Point of order. I do also acknowledge that, compared to previous instances where bills have been discharged by this House, we’re in this unique situation where it is under urgency and the Government is able to do that; but also, in this peculiar instance where there has been a break, in the normal convention where we didn’t have a lunch break, there would have been some form of ruling to at least move to the next order in the House and for this particular item under urgency to come back later.

I do note that, while this bill won’t be discharged, in previous instances where it’s not under urgency, there have been bills that have been discharged—or, in this case, at least the ability to move to the next order item—that have been far shorter in terms of the time that has been taken for the House to decide who is going to be speaking on the bill. For example, one of the bills that was discharged between the Speaker calling for that particular bill and the first person getting up to do a point of order versus the bill being discharged was less than 30 seconds. Yet, just before lunchtime, we’ve taken nearly two minutes to decide that.

While I understand that, under urgency, a bill cannot be discharged because it can always be brought back, I think we should at least have moved on to the next item, whatever that item is in the Order Paper, because, otherwise, there isn’t that consistency for how we have handled these sorts of situations in other instances in this Parliament.

💬 SPEAKER: Well, I reject that consistency argument because there hasn’t been another situation that is comparable—similar but not comparable.

💬 Hon Kieran McAnulty: Speaking to my point of order, if I may, and responding to your guidance to the House, I’ve now had an opportunity to read Speaker’s rulings 15/4, and it is of note that that is specific to a third reading. This is not a third reading, and it doesn’t actually relate to the process that is clearly outlined in Speaker’s ruling 15/4, where a bill is reported back to the House from committee and set down for third reading, presumably because it’s talking about the committee of the whole House. Neither of those two things has occurred in this instance; but, more to the point, you have called a Minister to take a call and that Minister is not here to take it.

Now, if it is a case that, where a bill is not listed on the Order Paper, the requirements for a Government to be present to move to seek a call—is it your ruling, given that there is nothing I can see in Speakers’ Rulings that relates specifically to this instance, that the requirements on a Government to be present and to move when called and when required to does not apply if the legislation is not listed on the Order Paper? There’s two issues there.

💬 SPEAKER: Just say that again, sorry.

💬 Hon Kieran McAnulty: Well, sir, you’ve just said to the House that it is, in your view, a Government’s responsibility to indicate when bills that are not listed on the Order Paper occur, but you’ve also indicated—

💬 SPEAKER: Can I ask people over there to stop the conversation, so I can hear the point of order.

💬 Hon Kieran McAnulty: But you’ve also stated, in your opening address, that in normal circumstances it’s possible that the way that things played out could have warranted the bill being dismissed; but the fact that it’s not on the Order Paper means that that isn’t a requirement. Actually, in this instance, we’ve gone through and looked at the footage on a couple of occasions. You made it very clear to the House that we were going to proceed. You then called the Hon Penny Simmonds, so we’re under way. Now, we’ve come back from the lunch break, the Hon Penny Simmonds is not here, and the Hon Simon Watts tried to take that call. Regardless of whether the bill is on the Order Paper or not, the Government have been called and they have not taken it, and the Government cannot put an additional Minister to speak in that Minister’s stead, because Penny Simmonds was called. She’s not here, and so the next call is ours.

Now, we can’t move a legislative statement, and we can’t do a speech to introduce a bill. They have forgone that opportunity. We’re not actually disputing your ruling in regards to the situation. I’m raising a specific point here. You’ve called a Minister; she isn’t here to take the call. They can’t proceed with this bill, because of the requirements that are specifically for that Minister who has been called.

💬 SPEAKER: That’s true. The point I’m trying to make is—because you’ll read it also in conjunction with Speakers’ ruling 15/3—that we have a bill that cannot be discharged. We’ve got a situation where the Government didn’t take the call as swiftly as they should have. I don’t think it’s relevant that, after the lunch break, the same Minister must return. But setting all that aside—we’re in new territory here, and I acknowledge that—the point I was trying to make is that the Government can introduce this any time it likes. It’s an odd situation. It’s a bill that hasn’t been introduced, because the call wasn’t taken, but it can’t be discharged, and so the question always has to be: what is the Government’s intention? It’s their urgency motion. I asked that question. The Hon Simon Watts, or whoever is going to move it, would need to say that they are moving to the bill, and that the bill be progressed, effectively.

💬 Hon Kieran McAnulty: Well, as it happens, the Hon Penny Simmonds has now turned up, and I imagine that’s only because we’re raising this concern. I accept your point that this is unprecedented. It is unprecedented because the Government wasn’t organised, but we’re now in a situation where you’ve called the Hon Penny Simmonds and you’ve called the Hon Simon Watts. The Hon Simon Watts has started to read out and move the introduction of a legislative statement. Now, it’s your ruling that, if the bills that are under consideration are not on the Order Paper, the conventions and requirements that are on the Government for bills that are listed on the Order Paper don’t stand.

Now, I think that’s something that the Standing Orders Committee should consider, because I don’t think that this instance should be allowed to set a precedent, because in practice, that precedent would mean that a Government doesn’t need to be organised in an urgency motion, and that would be regrettable for the order of the House. I take your nod as agreement to that. I’ll accept that this is going to be referred, and I’ll pose a simple question to you: who’s going to be reading this? Is it the Hon Penny Simmonds, who you called in the first place, or is it the Hon Simon Watts, who started the process?

💬 SPEAKER: Well, the point I would make in response to your points is that the—

💬 Rawiri Waititi: Messy.

💬 SPEAKER: Beg your pardon.

💬 Rawiri Waititi: It’s messy.

💬 SPEAKER: Yeah, that’s right. Quite right. Unusually succinct and on the button. The point is that the Speaker is not responsible for the Government’s management of its programme, but I am responsible for how the House might proceed in future. I think it is something that should go to the Standing Orders Committee. I think the lack of guidance in Speakers’ Rulings indicates that that is a good idea. I, unfortunately, probably won’t be able to get there for this particular round of the Standing Orders, but some sessional order around this might be appropriate. The situation we’re in at the moment is that, regardless of the mismanagement of the arrangements before, this is a bill that cannot be discharged, and the question for the Government is: where do we progress from here? If the Government sees it wants to move to progress that bill, that’s something that the House has to accept given the nature of the urgency motion.

💬 Hon Kieran McAnulty: Speaking to that, sir, I accept that, and I thank you for it. I think it would be appropriate if that matter would be referred to the Standing Order Committee from you.

Now, I come back to Speakers’ rulings 15/3 and 15/4. By your own admission, this is a statement that doesn’t quite fit in with those. You’d need to read both Speakers’ rulings for what is, essentially, a vibe, but it’s not specific to this situation. Speaker’s ruling 15/4 in particular is very specific to a certain circumstance which doesn’t apply here. Essentially, at least in the interim, until the Standing Orders Committee has an opportunity to review this, you are making a new ruling, essentially, and so you also, therefore, have the opportunity now to add to that new ruling that, in an instance where a bill is not listed on the Order Paper, and if a Government isn’t organised and doesn’t take the call, then it can be dismissed.

If you are considering a new ruling in this instance, it is entirely appropriate that you also consider that. If a referral to the Standing Orders Committee deals with the matter, so be it; but, in the interim, notwithstanding the fact that we only have one more week and it’s going to essentially be a partial week of sitting, the point stands, and I think that that should be seriously considered by you.

💬 SPEAKER: Well, I am seriously considering it, obviously, and while you say that Speakers’ ruling 15/4, read with 15/3, does, as you describe it, a vibe, I think it’s a little stronger than that. I think there are comparisons in it insomuch as it talks about bills that are not on the Order Paper. What is absolutely clear, and I’m not going to rule against it, is that, if a bill is not on the Order Paper but it’s an urgency motion, it cannot be discharged. The second part is that it is for the Government to determine the order in which it deals with bills that are on the Order Paper. This is an untidy situation—messy, as Mr Waititi describes it—but none the less, the question has to be: does the Government intend to move this bill?

💬 Hon Kieran McAnulty: Speaking to that, one final point, if I may: given that we are considering Speakers’ rulings 15/3 and 15/4, I would suggest it would be appropriate to also consider that in the context of Speakers’ ruling 15/5, where it clearly says that notwithstanding an item being on the urgency motion—leaving aside whether or not it is included on the Order Paper—if it is part of the urgency motion and the Speaker has an indication that the Government doesn’t wish to proceed, that can be interpreted as the end of urgency.

Now, there could not be a clearer indication from a Government that it doesn’t want to proceed when Ministers don’t take the call. I’m not putting to you that the urgency should be ended, but I am suggesting to you, sir, that, as you consider Speakers’ rulings 15/3 in conjunction with 15/4, you should also consider 15/5. There needs to be a provision in Speakers’ Rulings that accounts for a Government not being organised in its own urgency that it’s moved.

💬 SPEAKER: I think time would be a small factor there as well. You’ll be aware that, while there’s nothing in Speakers’ Rulings—or, in fact, the Standing Orders—for matters like this, if it were a select committee and the Government didn’t turn up it with its quorum, it’s 10 minutes. Now, we were a much shorter period of time than that, and in the end, it was 11.56 a.m. and I decided the best thing to do would be to take the lunch break and get this advice so that the House would have some guidance. I appreciate what you’re suggesting regarding a ruling that would prevail until such time as the Standing Orders deals with it, or a sessional order is brought in, but I’m reluctant or not willing to do that.

💬 Hon Kieran McAnulty: Speaking to that, as part of your considerations, I wish to raise to your attention an instance that occurred on 11 September 2018 under Speaker Mallard, where there was no Government Minister available to seek the call and the matter was discharged. I accept that that was on the Order Paper, but I think it adds further consideration to any potential ruling on your part, be it interim or otherwise, as to how to deal with the situation under urgency when a Government isn’t available to move its own bill, regardless of whether it’s on the Order Paper or not.

💬 SPEAKER: Well, look, it might be a fair argument, but it still remains that it was clear at that time that it was a bill on the Order Paper, which is dealt with in the Standing Orders. This is a bill that is not on the Order Paper, which is also dealt with in the Standing Orders, so there’s an interpretive position that has to be taken, and the position I’m taking is that I will ask the Government: does it wish to progress this bill?

💬 Rawiri Waititi: Point of order. Thank you, Mr Speaker. Just for clarity’s sake, and I’m looking at Speaker’s ruling 31/5: “Once the presiding officer has called on a member to speak that member has the floor and cannot have the call taken away. This applies even though the principle of alternation or, in committee, the obligation to give preference to a member who has spoken less often is overlooked.” I just want to get your clarity on that ruling 31/5—that the call was given to Minister Penny, and now we have Minister Watts who’s also been given a call. I just want some clarity around, “Once the presiding officer has called on a member to speak that member has the floor and cannot have their call taken away.”

💬 SPEAKER: Yes, I think the point is that Speaker’s ruling 31/5 is referring to proceedings inside a committee of the whole House stage where members might have multiple calls, and the calls in this direction here are to always go to the member who’s had the least number of calls.

First Reading