Supreme Court Bill

This part sets out the purpose, amongst many other things, but I believe that that purpose is not clearly set out. The hidden purpose of this legislation is to turn New Zealand into a republic. That is one of the many steps that this Labour Party—this minority Labour Government—is taking in order to change New Zealand’s way of life. If this bill can proceed through this Committee on a vote of about 62 to 56, on a regular basis, what will it take to change New Zealand into a republic? Will there be another bill next week, once again supported by the Greens, on a 62 to 56 basis? We could have a republic this time next year by the way this bill is proceeding. We have so many things being done by this Labour Party to move towards a republic: the abolition of Queen’s Counsel, the abolition of rights of appeal to the Privy Council, and the many measures being taken without the approval of the New Zealand public. With the support of only about 31.9 percent of those eligible to vote at the last election, the minority Labour Government is ramming this bill through the House.

Again, what is the purpose of this bill? The purpose of this bill is so that the Greens can have the benefit of Nandor Tanczos’ Clean Slate Bill transposed into a Government bill, whereby all those people who have been convicted of smoking marijuana over the years can have those convictions silenced—not overturned, but silenced. Those people will no longer have convictions in New Zealand for marijuana use, if they have had no other convictions of that type in the last 10 years. That is one of the purposes of this bill. The Government says that it is against cannabis smoking and such like, but the Government is doing a deal with the Greens to support all those people who have been smoking cannabis over all those years, and to support Nandor Tanczos’ Clean Slate Bill. That is one of the hidden purposes behind this bill.

That deal has been done with the Greens to get this Supreme Court Bill through this Parliament. It is absolutely atrocious that that is the sort of level to which this minority Labour Government will sink, and it is the level to which the Greens have always aspired. When Keith Locke next speaks in this Parliament about the rights of the individual, and about the protection of the individual—a person such as Mr Zaoui—he knows, and we know, that he has no sincerity whatsoever, because the rights of appeal to the Privy Council for the likes of Ahmed Zaoui will be removed. If there was any opportunity for Mr Zaoui to go to the Privy Council, it will have gone. He will be taken well out of the sphere of the closed shop that is part of the legal system, the New Zealand political system, and so on.

Those people who are appointed to whatever court it is in New Zealand, by New Zealanders, are often affected by their New Zealand environment. The classic comparison is with the Samoan appeal in the early 1980s when Mr Rosenberg took an appeal to the Privy Council on behalf of the Samoan people. No one thought he would have a show, but he went to the Privy Council and he won. That type of right will soon be gone.

When Mr Locke sits here smugly in the future and tries to convince me that he is really concerned about people’s welfare, safety, and constitutional rights in New Zealand, I will know that that is absolute rubbish. Keith Locke, who is sitting here right now in front of me, is voting for the right of this minority Labour Government to remove protection and opportunity for people such as Ahmed Zaoui, and other groups like Samoans. There are many hundreds of New Zealanders who were deprived legal aid, and the Privy Council said they should have been granted legal aid and the right to appeal. Those types of downtrodden people, whom the Greens have so often said they support, will not have that right of appeal any more in future as a result of the passage of this legislation.

They will not have any extra rights, because virtually the same people who made the decisions in the Court of Appeal will make the decisions in the Supreme Court. Their study, backgrounds, and such like will be exactly the same. There will be no change whatsoever. As far as the purpose of this legislation is concerned, I believe that it does not improve access to justice. Access to justice for 12 cases means that there are still only 12 cases. Access to justice would be improved if the Labour Government removed the increase it introduced in High Court filing fees, which took them up to about $1,000.

I found it humorous to listen to speakers on the other side of the Chamber, particularly after we had had a discussion on humour and irony. The humour I found was to discover that parties of the right were suddenly concerned about justice and fair dealing. In all of my life I do not think—

Dail Jones: I raise a point of order, Madam Chairperson. We have just had a ruling from the Speaker on how members can call people and describe them. I take offence to my party being called a party of the right. I ask that that member refer to this party, perhaps, as a party of the centre. I do not want to be associated with a party of the right. I object to that. In terms of the ruling that has been made, that is totally out of order.

Please be seated. The member knows that that is a debating matter.

Gerry Brownlee: Point of order—

Please be seated. I have made a ruling on it.

Gerry Brownlee: I raise a point of order, Madam Chairperson. If you have made a ruling on that, then it is contrary to what the Speaker has just told us. He said that we could not refer to groups of people in derogatory terms. That is what he said. He made it very clear. Mr Robson most definitely meant his comment as a derogatory term. He should refer to parties of the Opposition either in a way that presumably does not breach the Speaker’s ruling or by their particular name.

Hon MATT ROBSON: Speaking to the point of order, I point out that we are entering into the realm of stupidity, in my opinion. The lexical terms “right” and “left” go back to the convention in 1789 of the French Revolution. They are accepted as general terms for parties to the right and to the left. I do not find it offensive if anyone says that I am in a party to the left—or a party to the right. That is fine. In my opinion, this point of order is just pure sophistry.

Rt Hon Winston Peters: I raise a point of order, Madam Chairperson. The member may not find offence at being called a member of a party on the extreme left. However, New Zealand First is New Zealand’s only common-sense, centre of the road party, and we like to be called that. We did not leave the parties that we were once members of—like some from Labour, when it was a right-wing loony-tune party. Another one—[Interruption] No, we did not change our name seven times. This party has had just one name. The party that member belonged to changed its name seven times. What an effrontery! But that member should describe us as a party of the Opposition, or talk about us as New Zealand First and the only New Zealand centre party—and do it properly. If he wants to get narrow about it, that is it, but again, if he has been through seven parties, any description would fit him.

Just ruling on the point of order, as Chair, I certainly do not regard that as a derogatory comment. As the Speaker referred to earlier, it might not be an accurate description, but that is a matter for debate.

Dail Jones: Point of order—

I have ruled on this matter.

Dail Jones: But you have not ruled on my matter.

Is it a new point of order?

Dail Jones: It must be. You have ruled that you do not regard the statement as being derogatory. With the greatest respect, I say that your view is your own. It is my view that I am concerned about here. In my view—and that is what matters in terms of the Standing Orders—being referred to as a member of a party of the right and being linked with ACT, for example, is derogatory. I do not want my party to be called a party of the right. I am a member of New Zealand First. I am a member of a centre party. I am not in a party of the right. I believe that for a party to be called a party of the right is derogatory. With all due respect, I do not care what you might think it is all about. The member should withdraw and apologise, and we can then get on with the debate. That will save a lot of time. The Speaker will not have to be recalled to have this matter clarified.

I, as Chair, have ruled on that.

Hon MATT ROBSON: I respect your ruling, Madam Chairperson. I take it that a member has taken offence at a term in this debate, so I withdraw and apologise. At a later time, we could possibly rule on whether the use of the terms “right” and “left” is offensive.

The CHAIRPERSON (Ann Hartley): The member has withdrawn and apologised. Please continue.

Hon MATT ROBSON: The humour I found was that certain parties have spoken in terms of justice and fairness. In all my political life, I have never associated many of the people in those parties with a great concern for human rights. For instance, recently I read a press statement of the Rt Hon Winston Peters where it seemed to me that he was advocating we give justice in this country only to people who may be of the Christian faith. If one is Muslim, agnostic, atheist, or Buddhist, one can whistle that justice goodbye. That was my reading of that—

Rt Hon Winston Peters: I raise a point of order, Madam Chairperson. With respect, you could say that this is a debating matter, but it is not now—when a member says something so offensive to a lot of people who are members of New Zealand First, whose beliefs are not as he has just outlined. I do not want to be categorised in that way. He knows full well that what I did say was that terrorists costing us hundreds of thousands of dollars should never have got here in the first place.

The member has taken offence to that. Would the member like to withdraw that remark.

Hon MATT ROBSON: I withdraw and apologise, if the member took offence.

The key question that I think members have misunderstood, and it is important that I can perhaps elucidate it for them, is that they have got mixed up that the replacement of the Privy Council is exactly that. There is a replacement—a third level of appeal. Members may quibble whether that third level of appeal is as good as the appeal level that is replaced, but they cannot quibble with the fact that there is a third level of appeal. So the people they are concerned about—who will not have a right to appeal, for instance, to the Court of Appeal—will give them no need to be concerned. Those people will have a right of appeal to the new and third layer of appeal within New Zealand.

Most of those who support that change will point out that that will also give greater accessibility to a level of appeal that before was only the preserve of those who could, in the main, afford to take a case to the Privy Council, or, in a very small minority, who could access legal aid or some other form of payment. But for the great number of people in New Zealand, the level of appeal that replaces the Privy Council is an extension of their right to appeal.

Concerning the question of the famous Samoan case that went to the Privy Council—I was supportive of, and overjoyed with, the Privy Council’s ruling; I thought it was very, very good, and a lawful appeal—I point out that it was the New Zealand Parliament that overturned the Privy Council’s ruling. Some people who have spoken about this debate outside, and even inside, this Parliament were connected to the decision of the then National Party—joined, unfortunately, by some Labour members at the time—to overturn that decision. I am absolutely confident that a New Zealand court, which is the third level of appeal in New Zealand, would also come to the right decision, and the question would then be whether the New Zealand Parliament would overturn the finding of a New Zealand court.

I want to make these points very quickly. I have been quietly listening to this debate on a hugely important issue for New Zealand. The first thing I noticed is that this bill has been drafted in two parts. To curtail the debate to just two parts on something so important is shocking. As I look at the purpose of the Supreme Court Bill, I am shocked. I would have thought that the purpose of what is proposed as the highest court of this land—

I am sorry to interrupt the member, but the time has come for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

The Hon Dr Lockwood Smith has asked me to take his place, and that is significant because National has opposed this bill right through the first and second readings. During the Committee stage, the National representatives who were on the select committee, the Hon Georgina te Heuheu and my colleague Richard Worth, made that opposition very evident. I was a member of the select committee, and from my office I have been listening with great interest to the way the bill has been proceeding. I know that Opposition members have been putting up a very strong argument that this bill is an abuse of privilege. It changes the constitution, and has no standing at all. It has not gone to the public, where the majority of people should have been able to have a say as to whether they believe that this sort of change to the way we have done things should happen.

I want to start by just setting the scene, under Part 1, about where this highest court we will have—the appellant court, the Supreme Court, which we are opposed to—actually fits into the bigger scheme of things. The courts are one of the three essential institutions of New Zealand’s democratic form of Government. The other two are the legislature and the executive. Our constitution recognises the importance of the independence of the judicial powers from the legislative and executive powers, but this bill will compromise those powers. We want to make sure that we highlight those points during the Committee stage. We would ask the Minister to take a call to explain why this measure is necessary, why there is so much misunderstanding of it, and why its interpretation will be so fraught with difficulty.

The importance of the judicial functions of Government, and of their independence from other forms of Government, applies to all the courts, and that is a very important point. But with this bill there is also an added dimension because of the proposed changes that are concerned with the ultimate judicial power—the final appellant court or Supreme Court. Most of the decisions of the final appellant court in a country with a constitution like ours have a very wide effect. They have an effect outside New Zealand on the foreign institutions that we might be dealing with. What this court will do has far-reaching implications, and that is something the Government has not taken on board, at all. It is very important that the existing appeal structure is not altered, unless what is put in its place is of the highest quality, and we have some doubts about whether that will happen. That is one of shortcomings of this bill. We do not believe that we have here the expertise we have enjoyed in the past by being able to take our cases to the Privy Council.

David Benson-Pope: Oh! They can’t even choose a leader.

LINDSAY TISCH: I hope the member over there takes a call, because it is all very well to sit there and interject. We are talking about a major constitutional change, and what does that member want to do? He wants to sit over there and glibly make stupid statements, when this bill is making major constitutional changes. Government members do not want to stand up and debate the issues.

I refer also to the separation of powers. If we look at the commentary on the bill, at page 10, we see that the legal profession made some very important points. I want to highlight what it said, and I quote: “The Criminal Bar Association of New Zealand submitted that the bill proposes to ‘replace a top free system with an expensive inferior system’ ”. That is what the Criminal Bar Association said, and National supports that system.

I rise to address the provisions of the bill. I am very much aware—

Richard Worth: I raise a point of order, Mr Chairperson. I hope that in the course of the night I may get a call from you. I want to give preliminary notice that I would like the comments I make translated into Māori for the benefit particularly of Ngāpuhi and Ngāi Tahu listeners, who, I understand, are gathered and prepared to listen to comments that are made. I just note that the Māori interpreter is not here, and that whilst it may be possible to have Georgina te Heuheu translate, in what is probably a departure from the recognised practice of the House, I would prefer that there be an opportunity for me to offer those comments in Māori, as I really do not think that my facility in the language is up to making a sufficient contribution.

The CHAIRPERSON (H V Ross Robertson): I thank the member for making that contribution in the manner he has done. If interpretation is required, it is done as a matter of course. My second point is that during points of order, members may not refer to persons listening outside the House. That is outside the Standing Orders.

Hon MARGARET WILSON: As I was about to say, there has been a great deal of discussion and debate around this matter over the past 4 years, and for some of us probably over the past 30 years. However, I understand our task here this evening is to concentrate on the specific provisions of the bill, and that is what I intend to do.

The first matter I wish to draw the attention of the Committee to is the Supplementary Order Paper in the name of the Government, and to the substantive matter in that Supplementary Order Paper, which is a new clause 42A. That provision arose out of the necessity to ensure that there is a Chief High Court Judge who will be able to ensure the proper administration of justice of the court at that level, and that is why that provision has come in at this time.

The only other matters I wish to draw attention to include the excellent work done by all the members of the select committee, and the amendments that were supported by the majority. In particular, there is a vastly improved, redrafted purpose clause that more fully sets out the purpose of the legislation, and to some extent, I think, puts the debate in a context. I would be interested to hear honourable members’ comments actually directed to the redrafted purpose clause, because I think it greatly improves the bill.

The other matter of substance in this part of the bill that was addressed by the committee related to the inclusion of the “interests of justice” provision within the grounds for appeal, and the reordering of the specific grounds for appeal that are in that particular clause. I refer to the new draft of clause 13, “Criteria for leave to appeal”. I think that is also an improvement. It makes clear, of course, that in the interests of justice—and if the court so decides on hearing the application—leave may well be granted on other grounds, but it does not require leave to be given at every possible opportunity.

In respect of the provisions relating to the number of members on the court, I found the debate and commentary very useful, and, I think, helped by the addition in the legislation of one member. Experience in the District Court and the High Court has shown us that when we have limits, it is at times extremely difficult to get the necessary legislation through to ensure the smooth administration of justice by increasing the numbers. So I think that was a very helpful provision.

Also, I think the specific provisions in this part generally enhance a clearer understanding of what, in essence, is quite a straightforward and simple piece of legislation in terms of its drafting and intention. That is not, of course, to take away anything from the arguments that surrounded this legislation, but the select committee was the place to have those arguments. My understanding of the process is that this House should concentrate on the specific provisions of the bill.

I want to make some comments on the purpose clause, which the Minister has just referred to. The bill as introduced had a very simple purpose clause that sensibly set out the very simple reason for the bill, which is basically to establish a Supreme Court, to end appeals to the Privy Council, and to make amendments that follow on from that. We now have a new purpose clause, which in my view is symptomatic of all the gobbledygook and wiffle-waffle that the Government is known for.

I can see why the Government has done this. It has tried to address the many concerns and points of opposition that were made at the select committee, but in essence I do not think it has done so. Clause 3(1) states that the purpose of the Act is to establish a court, and “to recognise that New Zealand is an independent nation with its own history and traditions”. Honestly, that is like telling people how to suck eggs. If that is not what a court should be about, then we are in a sorry state of affairs if we have to spell it out in legislation. New Zealand is an independent nation. No matter if we carried on with the Privy Council for the rest of our days, we are an independent nation, in any event. It is not the location of our final court of appeal that makes us an independent sovereign nation.

Hon Taito Phillip Field: And the umbilical cord has to be cut sometime.

Hon GEORGINA TE HEUHEU: The member is probably right. But it should certainly not be against the wishes of the majority of the New Zealand public. No matter how much the Government might say it has a mandate to do this, it runs a minority Government. The Greens, who are supporting the Government, are not even united. I know that. There are members in the Green Party who are not happy about having to do a deal so that Nandor Tanczos can get his Clean Slate Bill through, and wipe any offences relating to the smoking of pot that he or his friends might have.

That is the kind of deal-making that goes on here. A bill that the majority of New Zealanders have no time for will now be rammed through without a mandate, thanks to three extra votes from the Greens, whose word cannot really be taken seriously—particularly when we get someone like Nandor Tanczos, who at the beginning of the session said: “I will wait to see what Māori say about this.” He did not hear them, because 95 percent of the submissions Māori made are opposed to the bill, but he is still supporting it anyway.

Clause 3(1)(a)(ii) states that the purpose is: “to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved”. That does not satisfy Māori objection—not at all. No doubt it was put in to satisfy Nandor Tanczos. We get a situation whereby a little party somehow exerts its weight far above what it should. If Nandor Tanczos thinks that clause 3(1)(a)(ii)—

Keith Locke: I raise a point of order, Mr Chairperson. I think it is important that members’ names be pronounced correctly. “Nandor” is pronounced with the vowel sound of the “a” in Māori.

The CHAIRPERSON (H V Ross Robertson): I thank the member for drawing that to the member’s attention. Some people have difficulties with pronunciation—I am sure all of us do at certain times—but I would expect that members would do their best to pronounce names correctly.

Hon GEORGINA TE HEUHEU: Speaking to the point of order, Mr Chairperson, I ask how I should pronounce the member’s name please, as my name is mispronounced so much of the time.

Keith Locke: It has a Māori “a” pronunciation.

The CHAIRPERSON (H V Ross Robertson): That is not a point of order. Will the member please continue.

Hon GEORGINA TE HEUHEU: I did not realise that Nandor was a Māori name, or that I have to pronounce it with a Māori vowel. I look forward to the person who raised the point of order pronouncing my name correctly, if he would.

In any event, if the Government thinks that clause 3(1)(a)(ii) satisfies Māori objections, it is wrong. I ask Nandor Tanczos to think again and get it into his head that he does not represent a Māori point of view, no matter how much he might think that he wants to, or that he can. The bill in no way satisfies the objections of Māori. Their major objection is that this is being done without proper dialogue on the status of the treaty.

United Future will support the Government’s proposed amendments because we think they improve the bill, particularly regarding the change of date of instigation. Nevertheless, we believe that to enact the Supreme Court Bill on 1 January 2004 would be premature, and that the commencement date of 1 July 2004 is also premature. It would be preferable if the enacting of the bill were put back for 5 years, because, firstly, it is not needed yet, and, secondly, it is not wanted yet. It is not needed, because at this point in time the Privy Council is more than adequate in meeting New Zealand’s need for a second-tier court of appeal.

I accept that the new court would bring some advantages, particularly in giving access to a greater number of cases. However, the cases that it would be able to hear—in particular, Family Court, Environment Court, and Employment Court cases—would be appeals at a third-tier level, and the number of appeals that come through would likely be rare, and therefore very few cases would be affected and obtain that advantage.

Against that is the fact that we would lose, with the Privy Council, a quality of judiciary that has been accepted right across the Parliament as being of high quality. We would engage in a huge cost that we do not incur with the Privy Council, and, most important, we would be making a move that does not have the confidence of the community. I do not think we need to make this change yet. I said in my second reading speech that I predicted we would probably need to make the change within 5 to 10 years—and probably at the lower end of that—but at the moment the Privy Council is very adequate for New Zealand’s needs. We do not need to change, and to start the bill on 1 January 2004 is premature.

The bill is also not wanted, and this is perhaps the more important point. The business, legal, and Māori communities clearly do not want this bill. A substantial percentage of New Zealanders do not want this bill. The select committee process, which involved a wide range of New Zealanders, made it clear the bill was not wanted. There was overwhelming quantitative and qualitative opposition to the bill. I believe that the court will probably be needed by 2008. Events in the UK will have progressed and we will probably need it then. But we do not need it now. New Zealanders will by then, I hope, be ready for it, providing they see it as their decision and have come to that conclusion without feeling that it is being dictated to them by the Government.

Questions have been raised as to whether there should be a referendum. United Future did not initially support the proposal that there ought to be a referendum on the matter. In the commentary on the bill, our comments show quite clearly that we opposed the idea of having a referendum, because we considered it an inappropriate and unnecessary process, for the reasons that those opposed to the referendum enunciated. We thought it was unnecessarily expensive to undertake a public referendum prior to reforming the court structure.

However, in the absence of cross-party support in the Parliament, in the absence of public support during the select committee process, in the absence of United Future being able to negotiate amendments that would sufficiently satisfy and provide answers to the prime concerns of key sectors of the public, and given the prospect of a mere 63 votes being cast in support of the bill, a referendum is the only remaining way of providing the necessary buy-in by the public to justify this bill being passed. United Future will therefore support the Supplementary Order Paper being proposed by ACT.

In terms of the purpose clause, there was concern among objectors as to judicial activism. United Future supported the Hodder formulations, and with some amendment, we proposed, as revealed in the commentary to the bill, that they be adopted in a modified form. I note too that ACT’s amendments by and large follow that. Therefore, we will also be supporting the amendment in the Supplementary Order Paper proposed by ACT that the purpose clause and the addition to the purpose clause be put into the bill. The judiciary does need to be conscious of its place. There has been some concern, in particular with the Lesa case.

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): No. I call the honourable member Pita Paraone.

Tena koe, Mr Chairperson.

Clayton Cosgrove: Who?

PITA PARAONE: I presume that you asked “Who?” because you cannot pronounce my name. Never mind.

The CHAIRPERSON (H V Ross Robertson): The member may not use the word “you”, because that is referring to the Chair. He must use “the member”, “the Minister”, or speak in the third person.

PITA PARAONE: I stand corrected. New Zealand First will continue to oppose this bill. I want to take a call on clause 3, “Purpose”, in Part 1. Clause 3(1)(a) provides that the purpose is “to establish within New Zealand a new court of final appeal comprising New Zealand judges—”, and then it outlines the reasons in subparagraphs (i) and (ii). With regard to the wording, particularly in clause 3(1)(a)(ii), which states: “to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions;”, I suggest that at this precise moment in time, New Zealanders do not have a clear understanding of the Treaty of Waitangi. Those past cases that have already been referred to the Privy Council in relation to issues affecting the treaty have been better understood, and as a consequence better dealt with, by those from overseas. I am talking about those cases referred to the Privy Council in terms of the fisheries and broadcasting.

I suggest that perhaps the reason for the haste with which this bill has been introduced and processed through this Parliament is anticipation of the likely cases that could be referred to the Privy Council to deal with the foreshore and seabed. Perhaps there is a fear on the part of the Government that the people who sit on the Privy Council will have a better understanding of this issue, and may come down with findings that oppose the views of this Government.

I also want to ask the Māori members in Government what, in their view, they have done to represent their people in this area.

Pansy Wong: Nothing.

PITA PARAONE: The fact that we are now debating this bill in the Committee stage can say only one thing, and that, as my learned colleague from this side has said, is nothing. This is a betrayal of the highest order, not only by those Māori members, but also by this Government, because the majority of New Zealanders, including Māori, oppose this bill. In fact, we must question where the concept of democracy got lost on the way with regard to this Government.

Given the narrow margin by which this bill was scraped through, should not a halt be called until such time as adequate debate and consultation have been undertaken? The lack of support surely indicates that this issue needs further policy analysis—or is this Government afraid of what the New Zealand First, ACT, and National petition currently doing the rounds is likely to produce for the Government? This Government passed the Prostitution Reform Act by one vote. A similar situation is about to happen here.

David Benson-Pope: Stop telling porkies.

PITA PARAONE: Well, whatever the difference was, it was very close, even if we did have one member from the Government side of the House give new meaning to objection by abstaining. What does that tell us about this Government? It tells us that it has its own agenda, which will persist in the face of widespread public opposition and the glaring lack of a mandate from all New Zealanders. Constitutional changes should be made only with the consent of the people; but then, to this Government, what is the consent of the people?

Seventy-five percent of those who appeared before the Justice and Electoral Committee opposed the bill. The independence of the judiciary and its political neutrality should be inviolable in this country. The longstanding links with the Privy Council and the legal expertise that it possesses should not be severed on a political whim.

I move, That the question be now put.

The first point I would like to make, Mr Chairperson—and you will know these provisions well—is that on page 94 of the current Standing Orders it is made wholly clear that in debates of this type, each member seeking a call has the possibility of making not more than four speeches. I am referring to the third box on page 94. That is why I was so disappointed in someone whom I admire greatly, the Hon Taito Phillip Field, moving a closure motion after only three speeches had been given on this part. He may well have been directed to do that by his senior whip, but the follow-through from Georgina Beyer was similarly to seek to close down the debate. I think it is a matter of considerable sadness, in the context of Part 1, that a member whom I understand may well be a Māori member—Georgina Beyer—is not prepared to have the issues that arise in this part fully debated.

In the context of Part 1, we are being treated to an outrage. Why do I say that? It is because this morning we had a Supplementary Order Paper from the Attorney-General that, as others have commented, runs to eight pages, and there are also multiple amendments from other members. In addition, I would like to flag, and have the opportunity to speak to, several of the amendments I have put up in connection with Part 1. Two of the amendments are of particular significance. The first relates to clause 17 and the second, similarly related, adds a subclause to that clause. I hope there will be the opportunity to talk on those issues, because in this call I would like to concentrate just on the merits of this part—[Interruption]—without, I say to Mr Hide, his necessary and, I am sure, ever helpful interjection.

First, if we think that the record of the Court of Appeal in recent times has been flash, then we should rapidly disabuse ourselves of that notion, because in a sequential review of 10 appeals that went from the Court of Appeal to the Privy Council in a period of about 14 months, no fewer than seven—70 percent—of those cases were reversed. That is not a good record. If we look at some of those Court of Appeal decisions, we will see that one of the standout decisions of the Privy Council related to the Taito case. As others have commented, the first of 1,500 convicted criminals denied a right to appeal by systemic failure in the Court of Appeal will have his case heard later this month.

The key provision in Part 1 establishes the Supreme Court. In the short time available, and against the background of seeking—and, I hope, securing—further calls on this important legislation, I would like to summarise very briefly what National’s position is in respect of Part 1. With the establishment of this court, we are seeing the abandonment of a court of excellence. The Judicial Committee of the Privy Council, which is recognised as a court of excellence throughout the Commonwealth and has heard thousands of appeals—in the context of New Zealand, the first appeals are from about 1851—is to be with us no longer. All the intellect at that court and all the sustained knowledge built up over years of litigants appearing before that court and arguing cases in a New Zealand context and with a New Zealand flavour will be lost—for what reason?

I move, That the question be now put.

I raise a point of order, Mr Chairperson. This is a two-part bill with schedules. There are 42 clauses in the part we are dealing with at the moment. I am anxious to get a bit of an indication from you before I speak—and I suspect others may also need it—as to whether you would be inclined to allow more than one speech. I know that the Standing Orders encourage members to think that they can have up to four and that, commonly, the debate on the commencement provisions and the early phase may be very short, but I want to draw to your attention—and despite what Mr Worth said, it is not a bill with which you have been previously involved—that the whole substance of the bill is in this part. It does govern the way in which I would address—

The CHAIRPERSON (H V Ross Robertson): I have the member’s point of order. As the presiding officer, I am the sole judge of relevancy as to whether I take the closure. I am considering the issue at the present stage, but I have not yet been convinced that there needs to be a closure motion.

I want to speak to the first two of my three substantive amendments to Part 1. The first proposes that the commencement involve a referendum. In my opinion, a referendum is not the most desirable way in which to achieve a constitutional change of this type. A referendum necessarily would involve debate about the comparative or relative merits of our court and what the overseas judges can do. I know there are many judges who, quite properly, are anguished about the damage that may occur to the reputation of the judiciary as we go through the next few months. A referendum is constitutionally a very appropriate way for a country with a Parliament that has only one Chamber and no written constitution to establish a change of this magnitude. It should be in the hands of the people and require their endorsement. I am, nevertheless, sensitive to those who think that it is an unhappy necessity. But I am now persuaded by the passage of this legislation and by the haste with which we are dealing with it that it is absolutely essential that the commencement require the endorsement of New Zealanders.

This bill is treating our highest court and the tenure of the judges of that court as potential playthings of a minority ruling party. There may be no one in this House who would think it possible or likely that that precedent could be misused lightly. I believe there is no doubt at all that, at some stage in the future, what we are doing here tonight, and will be doing over the next week or so, will be cited as evidence that it is possible to tamper with the courts when it is convenient for a ruling party. I am sorry that the Greens are not supporting us—in particular, Rod Donald, who makes such a play of the constitution being the property of more than the generation currently exercising its powers. I am sorry that that is a matter where we will possibly—

The CHAIRPERSON (H V Ross Robertson): The member may not refer to the absence of members from the Chamber. That is a longstanding convention.

STEPHEN FRANKS: I am sorry. I meant that they are not supporting us. There are Green members present, and they are not supporting us. ACT’s proposed commencement clause, which I am pleased to hear that United Future will support and which I know the National Party and New Zealand First will support, is very simple. It enables all the detail to be before the people. It is all worked out: the bill is passed by the House but comes into force only when it has been endorsed by New Zealanders in a referendum.

I have a suspicion that many New Zealanders see this in the same crude nationalistic terms as the Attorney-General does. This Clark-Wilson Government is contemptuous of people and of their ability to understand, but the question of whether a court that is utterly independent of New Zealand political pressure and whose appointees are right outside the reach of any kind of caucus calculation is replaced with a court that is subject to the main constitutional problem for any country—who watches the watchers—is simple for people to understand. If they choose at the end of the referendum process to vote for it, the court will have been validated. The Supreme Court will have a mandate that the House cannot give.

The House is not giving a mandate to the Supreme Court but, by the squalid process of ramming the bill through now, is doing the very opposite. There will be no mandate. The new court will have to earn it painfully over many years of, probably, hostile scrutiny, because it will set off with people being suspicious about the motives for setting it up and concerned about its quality. Instead of being a celebration of nationalism as it was in Australia and Canada, it will start under the sort of scrutiny that may mean that it fails—and New Zealanders will lose confidence in yet another of their institutions. I urge that the Committee, in the interests of the new court, vote for a referendum process that will enable the court to be established properly.

I move, That the question be now put.

It is with pleasure that I make a contribution on Part 1 of the Supreme Court Bill. I was on the Justice and Electoral Committee when the bill first came before that committee, and at that time I expressed, along with my colleagues on the committee, many of the concerns that have been raised by my colleagues and by members on this side of the Chamber during the course of this debate. In fact, many of those concerns have not been addressed at all.

I reflect on what this bill will mean for the legal community and those seeking to have their cases heard at a high level by way of appeal, and, more particularly, on what it says about the Government’s basic attitude towards the people of New Zealand. This Government’s view is simply that the public are not smart enough to get it, and on that basis the Government believes that it will tell the public what is right for it and refuse to allow the people of New Zealand to have a say.

I am sure that amongst Government members on the opposite side of the Chamber, there are those who are concerned that a constitutional change of this magnitude is about to occur. I am sure there are one or two over the other side of the Chamber who are in fact a bit embarrassed that they are about to deal with a significant constitutional aspect of the lie of the land in New Zealand—by a very slim majority—in what can only be described as a slippery way to make a substantial change to a basic constitutional right of all New Zealanders.

We on this side of the Chamber—New Zealand First, ACT and National—share a very simple view. We actually believe that the public of New Zealand are smart enough to have a view on this. Funnily enough we believe that the people of New Zealand are quite capable of making an informed decision as to whether they wish to remove the right of appeal to the Privy Council. In fact we trust the people of New Zealand to get it right. On that basis, members on this side of the Chamber have been promoting a referendum on this issue.

It is not an issue that this Government is turning down in isolation. Members will recall that when a member’s bill in my name came before this House about 6 months ago, with an opportunity for the New Zealand public to have another look at the electoral system, the Government also threw that out. Parties who actually had a bit to lose from that referendum, like the ACT party because they are all list MPs, voted for that legislation. I remember it clearly. The reason that the ACT party voted with National on that issue is simply that members of those parties are not arrogant enough to believe that the New Zealand public are not smart enough to have a view on these issues, but believe that they are in fact able to make their minds up themselves. [Interruption]

That is what that member always says. I wish she had another issue, because I am getting a bit sick of it after 4 years. It would be nice if she had another issue. [Interruption] The well-liked Government senior whip—the only senior whip in the Parliament who chips in while people are speaking and does not have the decency to keep his mouth closed while other people are making a contribution—should learn a bit from the behaviour of other senior whips in this House. That sort of behaviour does the Government no good in the eyes of the public.

In fact this Government actually thinks that the public of New Zealand are not smart enough to make these decisions. We say they are smart enough. We say that the Clark-Wilson Government is not able to make a fair assessment of what the New Zealand public want. In fact I would have to say that on the more than one occasion that this has occurred in the last 6 months, it is that type of arrogance when dealing with the public that this Government would be—

I move, That the question be now put.

I call the honourable member Nandor Tanczos—

Hon Georgina te Heuheu: I raise a point of order, Mr Chairperson. Could I just point out that a point of order was taken on my pronunciation of that member’s name, and it was pointed out to me that I was not pronouncing it correctly. You happen to be saying it in the very same manner that I did, and I would ask that you pronounce his name correctly.

The CHAIRPERSON (H V Ross Robertson): That is not a point of order. I call the honourable member Nandor Tanczos.

For the clarification of everybody in the Chamber, it is pronounced “Narn-dor Tarnt-zosh”.

I would like to begin my speech this evening by offering, and putting on record, an expression of sympathy from the Green MPs to Green staff member Roland Sapsford for the loss of his father, whose funeral was held earlier this evening. Members may have noticed that a number of Green MPs have been away from the Chamber this evening to attend that funeral, but we are now back in full strength.

I would like to address the questions raised by the amendment of Stephen Franks regarding the referendum. This is an issue of some interest to members of Parliament, and to a few people outside of Parliament. I think that first of all we need to address whether the bill is a major constitutional issue, and I think that that is debatable. I say that because, if we look back to 1996, the New Zealand Courts Structure Bill, which was introduced by the National Party, sought to remove—not to replace, as this bill does—the right of appeal to the Privy Council. That bill was therefore a significantly more important constitutional move than this one, and it did not contain provision for a referendum. The Supreme Court Bill, in contrast, replaces the Privy Council with a Supreme Court that will fulfil the same function in a different forum, and, arguably, more effectively.

We have to ask what kinds of things are appropriate to have referenda on, because, contrary to some members’ opinions, we do not have a convention in this country that major constitutional changes should be done by referenda. The history of the use of referenda in this country is extremely patchy. They were first used in 1919, and there have been only 10 Government-initiated referenda in all the time since then. Three of them were on alcohol, one on gambling, one on the military draft, two on the length of the term of Parliament, two on MMP, and one on superannuation. In contrast, the most significant constitutional issues this Parliament has faced, such as the adoption of the Statute of Westminster, the abolition of the Legislative Council, the adoption of the New Zealand Bill of Rights Act, the establishment of the Court of Appeal, and the privatisation programmes rammed through this House, were not done by referenda.

Let us bear in mind that no country in the world, including Canada, Australia, Singapore, India, Hong Kong, and a whole host of others, has used a referendum to end appeals to the Privy Council. In practice, we do not have in this country a convention that means significant constitutional issues should be decided by referenda.

If anything, we tend to use referenda for minor issues in this country, and if our country is to adopt a principle that says major constitutional issues should be so decided—and that is something I would be supportive of—we need to establish some guidelines about how we determine what is a major constitutional issue of the kind that should be addressed by referenda. We have to have some criteria. Accusations that this bill is a major issue needing a referendum needs to be backed up by some criteria and evidence.

It seems to me that, if we are to look at the question of what issues should be decided by referenda, we should look at things like whether the issue relates to the composition of Parliament, because referenda would then provide a safeguard against the ability of Parliament to act in order to change its own composition—that safeguard being the people’s will. Issues that are subject to the self-interest of parliamentarians, such as Parliament’s re-elections, would be suitable for referenda. If there were evidence of widespread and general demand for referenda, such as we would have indicated to us through a citizens initiated referenda process, that would be a suitable indication. We might need to look at amending the process to be less onerous, but there is no such indication in this case.

Lastly, if the balance of power between the executive, the legislature, and the judiciary is to be changed, a referendum would be indicated. I would argue that the Supreme Court Bill invokes none of those criteria. It may invoke others that have not been mentioned, but this Parliament would need to identify what those were if we were to make a credible argument. Let us bear in mind that the 1996 Royal Commission on the Electoral System was very cautious about the use of referenda. It said that they should, in general, be avoided, provided there is continued development of restraints on the power of Governments, such as through parliamentary select committees, the Ombudsman, the Official Information Act, and administrative review through the courts. Those comments were made before the advent of MMP, which provides further restraints upon the executive because of the need for minority Governments to fashion working majorities.

Some say that the bill will pass with too slim a majority. I reject that view. The bill has the support of three parties in this Parliament.

The public deserve an explanation. Like myself, they might be a bit confused by the Green member who has just sat down. He started to tell us that we should respect convention—if something has not been done in Parliament before, then we should not even try to attempt it. It is incredible to think that the Greens actually respect tradition and convention.

Let me come back to this bill and, interestingly, to its purpose. Clause 3 states: “(1) The purpose of this Act is—(a) to establish within New Zealand a new court of final appeal comprising New Zealand judges—(i) to recognise that New Zealand is an independent nation with its own history and traditions;”. At first glance, one may tend to agree with that, but when one reflects on it, one wonders why Prime Minister Clark consistently tells us that we have to do what the United Nations wants us to do, for example under section 59 on smoking—because all the other countries have to repeal it, so do we.

Whenever there is an issue, such as the labour laws, etc., we are told what to do by this very flexible Prime Minister, Helen Clark, who seems to be able to change her argument according to the issue she is championing. In this case, it is said that New Zealand is an independent nation with its own history and traditions, so therefore we must have our final court of appeal, the Supreme Court. Why is it that when we come to other issues we say we must do whatever international rules or regulations stipulate? How can we consistently follow the argument of this Labour Government, when one day it says we are obliged to do what the international community believes we should do, and the next day says: “Hey, we’re an independent nation with our own history and tradition, so we should not continue this linkage with a very superior Privy Council in Britain.”?

The second reason, we are told under clause 3(1)(a)(ii), that we should have a Supreme Court is “to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions;”. One would think that a Government that put such a provision in the purpose clause of a bill would actually respect the treaty partner’s—the Māori community’s—opinion on that. I was told by my very learned and well-respected colleague Georgina te Heuheu that the majority of the Māori population was not consulted and did not agree. In fact, most Māori—the treaty partner—who turned up to the Justice and Electoral Committee actually said that they do not believe we should cut our link with the Privy Council.

The Minister should at least have the decency to stand and take a call to explain to us why it is that the purpose clause in this bill does not seem to equate to our actual observations. I was surprised earlier that my parliamentary colleague Taito Phillip Field stood up and sought to shut down the debate, even though we appreciate that Labour members always do what they are told. He and I sat on the same select committee in respect of the Western Samoan citizenship petition, where he kept telling the committee and the submissioners that the Privy Council had made such a great ruling, and he tried to persuade us, and Parliament, to listen to the wisdom of that court.

I move, That the question be now put.

I rise to speak in particular to clause 3 in Part 1. It sets out the purpose of the bill, which, according to the minority Labour Government, is to improve access to justice. Well, that shows how little the minority Labour Party knows about access to justice and about the effect this legislation will have on access to justice for New Zealand companies. One of the things that happens in commercial law is that a clause is included in contracts between New Zealand companies and overseas companies, stating: “The law of the contract shall be the law of ...”, and the name of the country is put in. That country’s law governs the way that the contract is administered in legal situations if things go wrong. Until now it has been easy for that country to be New Zealand, because people from countries such as France, Brazil, or outer Mongolia knew that our law would ultimately, if necessary, be determined by the Privy Council—a well-known body that is based on British principles of common law and clearly established principles of statutory interpretation.

When this bill is passed, the country’s law stated in a contract will no longer be the law of New Zealand for the vast majority of existing contracts that refer to the law of New Zealand; it will, in fact, be the law of the other country. That country may be the Netherlands. If one is dealing with Philips, then Philips will make sure that the law will be the law of the Netherlands, and, if necessary, of the European Union. If one is dealing with Australia, say, in mining cases, the law will be as determined by the High Court of Australia. If one is dealing with any other country, such as Russia or the United States—and in the United States it will inevitably be the state of New York—that country or state will govern the law of the contract. So New Zealanders will cease to have the access to justice that they currently have.

This bill will reduce access to justice for New Zealand companies. It is acknowledged that commercial organisations are one of the groups that use the Privy Council. I would think that roughly 50 percent of the appeals to the Privy Council have been made by commercial bodies. Those cases will no longer go to the Privy Council, obviously. They will not go to the Supreme Court, either. Our business dealings will be determined by states such as New York, by the High Court of Australia, and, funnily enough, by the House of Lords. They will determine New Zealand contracts—

Stephen Franks: Supreme Court of Singapore.

DAIL JONES: —and the Supreme Court of Singapore—for that type of case. We will lose access to justice. Our lawyers, of course, will be out of work, unless they start working on trans-Tasman ways of doing things. We will be giving away work to overseas companies, and if we think those cases will still be determined by the Supreme Court of New Zealand, we have another think coming.

This bill represents the dumbing-down of the New Zealand judiciary. As one of the submissions stated, this legislation will create a backwater for the New Zealand judicial system in the South Pacific. No one will take any notice of our decisions, and we will be given the respect we deserve for having a court that is totally untried—a court whose track record has been one of being constantly overturned in the Privy Council on some fairly obvious decisions. [Interruption] Ms Chadwick can make as much noise as she likes. She is obviously ignorant of the situation, and does not give two hoots about New Zealand becoming a backwater in the South Pacific.

When Australia and Canada did away with the Privy Council, they already had a two-tier system. They had the equivalent of our Court of Appeal, and they had a higher court, which became their final court of appeal. We do not have that system in New Zealand. That is the difference between us and Australia, with its High Court of Australia, and between us and Canada, with its Supreme Court. We do not have that situation in New Zealand; we have only one Court of Appeal. That is the difference between the way Canada and Australia did it, and the way New Zealand is doing it.

I am disappointed that none of the seven Māori Labour members of Parliament has spoken. I wonder whether they are “Bashful” or “Happy”, or whether they are “Sneezy”, “Sleepy”, “Grumpy”, “Dopey”, or “Doc”.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. There seems to be a plan to put these amendments globally. There is nothing in the Standing Orders that strictly sanctions that course. I seek that the amendments be put separately, in the absence of a Speaker’s ruling to the contrary. I stand subject to correction that there may be a Standing Order or a Speaker’s ruling concerning that, but I do not think so.

I understand that it is up to members themselves as to whether that can happen. It is my understanding that the Minister has chosen to do it that way.

RICHARD WORTH: The issue is what Speakers’ rulings, the conventions of the House, or the Standing Orders state. I do not believe that the issue is covered by the Standing Orders. You have a better knowledge of that than I do.

I refer the honourable member to Standing Order 301, which states: “The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question. …” We will now put the question that the Minister’s amendments as set out on Supplementary Order Paper 151 be agreed to.

I raise a point of order, Mr Chairperson. With respect—

The CHAIRPERSON (H V Ross Robertson): I have already ruled on that matter.

RICHARD WORTH: I appreciate that, but is that what the Minister wants?

The CHAIRPERSON (H V Ross Robertson): I am sure that is what the Minister wants.

RICHARD WORTH: Should we not inquire of her?

The CHAIRPERSON (H V Ross Robertson): The Minister indicated that was what she wanted, and I will do that. Can I now have the vote?

A party vote was called for on the question that the amendments set out on Supplementary Order Paper 151 in the name of the Hon Margaret Wilson to Part 1 be agreed to.

I raise a point of order, Mr Chairperson. The point of order arises from Standing Order 301, to which you have just referred members of the Committee. As you have correctly observed, it states: “The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question.” But the second sentence states: “An amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place of the bill.” That is an irregularity in the process that has been followed today. I seek that the irregularity be corrected by re-voting on the amendments to the relevant part of the bill.

The CHAIRPERSON (H V Ross Robertson): I thank the member for drawing that to my attention, and say that the Minister’s amendments are taken at the end in order that there is no confusion and that the amendments are not taken in the wrong order. That can happen if we have different amendments being put in by different members. So for the convenience of members, the Minister’s amendments are put at the end. It has been the custom in this place for a considerable amount of time—especially since I have been in the Chair, anyway—that that occurs. I am now going to declare the vote.

I raise a point of order, Mr Chairperson. It is all very well for you to say that that is done as a matter of convenience, but it is a clear breach of the second sentence of the Standing Order, and that is what I ask you to focus on. Matters of convenience are fine, but the rules of the House are another matter. Unless you suspend the Standing Orders, then I ask that we follow the regular processes of the Committee as recorded in the Standing Orders. Why is that unreasonable?

It is abundantly clear from practices in this Committee—and I say, with respect, that I have been here longer than that member—that Ministers’ amendments are taken collectively at the end. The practice that we are seeing tonight is no different from what has been practised over the last 10 years, and the Chairperson tonight is complying with what we have witnessed for the last decade.

I raise a point of order, Mr Chairperson. I want to query your ruling on this because I vividly recall that when we did the Gambling Bill, on which I had a number of amendments, the Minister’s amendments came first. They actually ruled out a number of the amendments that I had. If we look at the point that my colleague Richard Worth has raised concerning that second sentence of Standing Order 301, we see it is very clear that an amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place in the bill. There is a precedent set in recent times—when we passed the Gambling Bill in the last month—whereby the Minister’s amendments were taken first and a number of my own amendments were ruled out because of the Minister’s amendments.

The CHAIRPERSON (H V Ross Robertson): I just tell the member that the Minister’s amendments are taken at the end, and that has been the practice for a considerable amount of time. It enables other members’ amendments to be taken and voted on. Where there is a conflict, members’ amendments may be ruled out if it is the case that the Minister’s amendments are taken first. That is the ruling, and I will now declare the vote—

I raise a point of order, Mr Chairperson. I do not plan to waste the time of the Committee on this. I seek that the Speaker be recalled. Whatever the practice may be, I argue that it is contrary to the clear words of the Standing Order, and unless the Standing Orders are suspended that is the way it must be. I seek that the Speaker be recalled.

I raise a point of order, Mr Chairperson. Members in this Committee are also aware that when the Chairman makes a ruling, that ruling is not to be relitigated. That is exactly what members are doing with regard to the very clear ruling you have made. The relitigation of issues happens too frequently, and that is exactly what is happening now.

I raise a point of order, Mr Chairperson. The member who just spoke has no idea whether we are attempting to relitigate a ruling. I am looking at Standing Order 301, and I am now unsure exactly what it is that you wish to put to the vote, in any event. It does appear to me that the Standing Order requires that all amendments in that member’s name to a provision be put as one question. Does that mean that all the amendments on Supplementary Order Paper 151 are about to be voted on, or is it all the amendments to a clause or all the amendments to a part? What is the provision to which the Standing Order relates? The provision will dictate, perhaps, whether some vote yes or no, given that all the amendments are to be taken as one question. It seems to me that the contemplation of this Standing Order appears to be that a member can elect to have all his or her questions put as one. I suspect that the drafter of this rule, or the practice when it happened, assumed that that was all the provisions in a Supplementary Order Paper, but I would be surprised if that, in fact, was the member’s intention. I suggest that you clarify that before we proceed.

The CHAIRPERSON (H V Ross Robertson): We are dealing with a part by part motion, rather than a provision. The reason we do it this way is that other members can have their amendments voted on. Otherwise, their amendments could be ruled out.

I raise a point of order, Mr Chairperson. I do not think there is much difficulty here, at all. The rule is, in fact, very clear: the Chairperson always puts the Minister’s amendments first, as a block—

Dail Jones: Tell that member to sit down.

The CHAIRPERSON (H V Ross Robertson): While a point of order is being taken there is to be silence. That is in Speaker’s ruling 16/6.

Hon ROGER SOWRY: Mr Field was standing up, which was a bit unhelpful.

The CHAIRPERSON (H V Ross Robertson): I am sorry, I did not notice that.

Hon ROGER SOWRY: The rule is quite clear. The Chairperson puts the Minister’s amendments as one when that is requested. You asked the Minister whether she wished to have them put as one. She indicated, as I saw her do on two occasions, that she did. That is fine. But they are to be put before any other amendments are put. In fact, that has always been the case. I, like many members, have had amendments ruled out of order because they have been inconsistent with the Minister’s amendments. That has been a longstanding tradition. The fact that you have taken other amendments before the Minister’s amendments does not mean that the Minister can then decide that she wants hers taken as one. That is what we contend. Mr Worth has asked that, rather than waste time—we could waste time for another 20 minutes with points of order, if you want—

Hon Matt Robson: Ha!

The CHAIRPERSON (H V Ross Robertson): There are to be no interjections during points of order. It is highly disorderly, and I refer the member on my right to Standing Order 85/1. That is the member’s first yellow card.

Hon ROGER SOWRY: I think that because you have started to put some of the other amendments before the Minister’s amendments, you are bound to put her amendments individually. Even though she wants them to be put as one, the Standing Order is quite clear. If you are getting advice that that is not right, that advice is totally contradictory to Standing Order 301. So rather than have endless points of order, all we are saying is that we should have the Speaker back to make a ruling on that, because I have not struck the situation before where you take individual members’ amendments at the beginning, and then the Minister’s amendments. All of us have put amendments in on bills. You, yourself, I think, as a member of the Opposition would have put amendments in and had them ruled out because they were inconsistent with the Minister’s amendments as taken during the progress of a bill.

The CHAIRPERSON (H V Ross Robertson): I just say that if we look at Standing Order 301 we see it is quite clear. It states: “The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question.” The Minister has decided that that, in fact, is what she wants to do. In the time that I have been Assistant Speaker I have seen a number of times when the Minister’s amendments have been put at the end. The reason is quite simple: by doing it that way, it means that other members have their amendments voted on. Otherwise, their amendments could be ruled out of order. There the matter rests, and I will now put the question.

I raise a point of order, Mr Chairperson. You have quoted the first sentence of Standing Order 301—and you are right—“The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question.” The second sentence states: “An amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place of the bill.” That is the issue. My colleague Mr Worth has rightly asked for the Speaker to be recalled, because the voting order of the amendments is wrong. What we are contending is quite simple. If the Minister wants the amendments to be taken as one, that is fine and should be done upfront. But once you start to take other amendments, then you cannot take the Minister’s amendments as one. If that were the case, and if that is the advice you are now getting, then it was wrong that, in the Gambling Bill we just debated, for example, our amendments were ruled out of order because the Minister’s amendments were taken as one, upfront. If the Minister decides to take his or her amendments as one question, the question has to be taken either at the end or at the beginning. Standing Order 301 is quite clear. It has to be done at the beginning.

We are seeking clarification on that point. Otherwise—let me put it this way—we will always argue for an individual’s amendments to be taken before the Minister’s, and, therefore, no amendment would be ruled out of order and we would always have votes rather than amendments ruled out as being inconsistent with the bill. That is why the Standing Order is worded like that. We cannot just pick and choose, depending on the bill. I also emphasise—[Interruption] The junior Government whip can yell out all she likes. That is fine for her, it seems, during a point of order, but I do not think that it is acceptable.

My other point is that you have been asked for the Speaker to be recalled.

I raise a point of order, Mr Chairperson. My understanding is that once we commence voting you cannot start allowing Opposition members, or any member, to call points of order.

This is about the voting; the voting is the thing.

Point of order—

I want a ruling on my point of order.

I gave a ruling on the point of order. This is about the voting. That is why we are in this situation now—because it is about the voting.

I raise a point of order, Mr Chairperson. I wonder whether some assistance might be derived by looking at the strict meaning of the words in the first sentence. If you were to rule, or if we were to get a ruling, on what is meant by the word “provision”, it may help. If “provision” is the same as “clause”, then the outcome for which Mr Sowry is arguing would happen anyway. If, instead, “provision” in that line means “part”, then we still have the difficulty Mr Sowry raises. I suggest that you take it in that order—that we need to look first at “provision”. I believe that the purpose of the rule probably was to have it taken provision by provision, and the member could elect to have everything dealt with within a clause. Otherwise, if a member whose amendments were taken as one question went first, the outcome would be that he or she could then knock out a whole range of potentially valid amendments later. However, if the bill is dealt with provision by provision, that will not happen within a part.

I tell members that if amendments occur in the same place, then the Minister has preference. We are doing these amendments at the end for that very reason. They have been done at the end before. By doing it this way, it means that other members’ amendments are voted on. Otherwise, those amendments could be ruled out. To me, it is clear and simple.

I raise a point of order, Mr Chairperson. I note that you have rushed ahead and done what you have just done, but my point of order is unresolved. My point of order was that the Speaker be recalled to rule on the view you have taken of Standing Order 301. You have not dealt with that point of order. Instead, you have chosen—I would say wrongly, with respect—to declare the result of the vote. I am seeking that my point of order be resolved and that the Speaker be recalled.

The member is free to move that at any time.

I have. I have done it on several occasions.

The CHAIRPERSON (H V Ross Robertson): The question is that the Speaker be recalled. The Ayes have it. The Speaker will be recalled.

House resumed.

Speaker Recalled