5 March 1986, New Zealand Parliament.
Debate resumed from 20 November 1985.
Clause 1. Short Title and commencement (continued).
[A dispute having arisen, the member for Papakura withdrew from the Chamber on the instruction of the Chairman of Committees.]
[A dispute having arisen, the member for Tamaki withdrew from the Chamber on the instruction of the Chairman of Committees.]
The Committee divided on the question, That the amendments set out in Supplementary Order Paper 71 be agreed to. Ayes 23 Angus; Austin, H. N.; Austin, W. R.; Batchelor, Birch; Bolger; Falloon; Friedlander; Jones; Kidd; Luxton; McClay; McTigue; Morrison; Muldoon; Peters; Storey; Tirikatene-Sullivan; Wallbank; Wellington; Young, T. J. Tellers: Banks; Lee. Noes 51 Anderton; Austin, M. E.; Bassett; Boorman; Burdon; Butcher, Caygill; Clark; Colman; Cox; Cullen; de Cleene; Dillon; Douglas; Dunne; East; Fraser; Gair; Gerard; Gerbic; Goff; Graham; Gray; Gregory; Hercus; Hunt; Isbey; Keall; King; McKinnon; McLay; McLean; Marshall, C. R.; Matthewson; Maxwell, R. K.; Northey; O'Flynn; O'Regan; Palmer; Prebble; Rodger; Shields; Shirley; Smith; Sutton, J. R.; Sutton, W. D.; Tizard; Woollaston; Young, V. S. Tellers: Mallard; Wilde. Majority against: 28 Amendments negatived.
The Committee divided on the question, That clause 1 be agreed to. Ayes 47 Anderton; Austin, M. E.; Bassett; Batchelor; Boorman; Burdon; Butcher; Caygill; Clark; Colman; Cox; Cullen; de Cleene; Dillon; Douglas; Dunne; Fraser; Gair; Gerbic; Goff; Graham; Gregory; Hercus; Hunt; Isbey; Keall; King; McKinnon; McLean; Marshall, C. R.; Matthewson; Maxwell, R. K.; Northey; O'Flynn; O'Regan; Palmer; Prebble; Rodger; Shields; Shirley; Sutton, J. R.; Sutton, W. D.; Tizard; Woollaston; Young, V. S. Tellers: Mallard; Wilde. Noes 27 Angus; Austin, H. N.; Austin, W. R.; Birch; Bolger; East; Falloon; Friedlander; Gerard; Gray; Jones; Kidd; Luxton; McClay; McLay; McTigue; Morrison; Muldoon; Peters; Smith; Storey; Tirikatene-Sullivan; Wallbank; Wellington; Young, T. J. Tellers: Banks; Lee. Majority for: 20 Clause agreed to.
Part 1. Amendments of Crimes Act 1961.
JACK LUXTON (Matamata), on a point of order, said that an instruction from the House had to be worded in specific terms, but the motion moved on 20 November had been: "That it be an instruction to the Committee of the whole House on the Homosexual Law Reform Bill that it may consider the Bill part by part". Unless members had voted on whether the Bill should be taken part by part the Chairman had an obligation to consider it clause by clause.
The CHAIRMAN: I agree that this is a matter for the discretion and the decision of the Committee, which has the power under the resolution passed by the House to consider the Bill part by part if that is its decision.
FRAN WILDE (Wellington Central) moved, That in accordance with the power conferred on the Committee by way of instruction the Homosexual Law Reform Bill be considered part by part.
GRAEME LEE (Hauraki), on a point of order, asked whether the four 5-minute speeches allowed under the Standing Orders on each clause could be extended by the Chairman in the course of the debate should the Committee decide to discuss the Bill part by part.
The CHAIRMAN: Standing Order 286 applies and is quite clear: any question before the Committee-including the part by part consideration of a Bill in the Committee stage-is allowed 4 speeches of 5 minutes' duration.
JACK LUXTON (Matamata), on a point of order, said that it was normal for a specific instruction to be given to the Committee by the House. That could be done on a clear majority of the House. It was his understanding that when the Committee was deciding to take a Bill part by part the question was put directly by the Chair. If one member of the Committee objected the Bill would be taken clause by clause.
The CHAIRMAN: The question as to the Bill's being considered part by part was not a clear instruction from the House; rather, the House had given the Committee the power to consider the Bill part by part should it want to do so. When the Committee had reached the stage at which a part by part consideration of the Bill was appropriate I moved that Part I stand part, whereupon there was a point of order on the nature of the instruction to the Committee, followed by a formal motion by the member in charge of the Bill. At that stage the question before the Committee was that the Bill should be considered part by part.
Rt. Hon. Sir ROBERT MULDOON (Tamaki), on a point of order, said that the resolution of the House had stated that the Committee "may" take the Bill part by part. The Chairman had said that there was a resolution to do that, but he had not ruled on the point made by the member for Matamata, that it was not possible in the Committee of the whole House to do that by resolution, as it had to be done by leave, and one voice could stop it. That was a very important issue upon which, if necessary, the Chairman should take the advice of Mr Speaker. It was an important matter if the Committee of the whole House purported to take powers to itself which, under the precedents of the House, it was not entitled to take.
Dr MICHAEL CULLEN (St. Kilda), said, on the point of order, that the procedure the House had followed had been adopted in relation to the Goods and Services Tax Bill in 1985. A permissive motion had been moved to enable the Committee to consider whether the Bill should be taken part by part. It had not meant that the Committee had to take the Bill part by part. In McGee, at page 251, it was stated: "An instruction to a committee of the whole House is an abstract motion. . . . The committee... merely has power conferred upon it to do these things if it sees fit." Whether or not the Committee saw fit was a matter for resolution by the Committee and was therefore a motion to be debated within the Committee. There was no suggestion that the matter should be resolved by leave. That procedure would empower a single member to thwart the will of the overwhelming majority. The matter was one to be settled by debate, resolution, and division within the Committee.
The CHAIRMAN: It is fairly clear that, in the past, when there has been an instruction from the House that the Committee may consider a Bill part by part, it has been considered an instruction that not only empowers the Committee but obliges it. The member for Matamata is quite right. When a voice has been raised in dissent it is then a question for the Committee to decide. A voice was raised in this instance, and, there having been dissent, it was then appropriate for the member for Wellington Central to move as she did. The Committee has the power if it wishes to exercise it. Since it has the power, it is in the process now of deciding whether it wishes to exercise it.
JACK LUXTON (Matamata) moved, That progress be reported, to obtain the Speaker's ruling on the instruction to the Committee.
[A dispute having arisen, the Chairman of Committees named the member for Whangarei.]
Progress reported. House resumed.
The CHAIRMAN: I report progress so that I can advise you that under Standing Order 193 I have been obliged to name a member-namely, the member for Whangarei-for a sequence of events during which he repeatedly challenged the authority of the Chair and left me with no alternative but to move under Standing Order 193.
Mr SPEAKER: No doubt members have taken the opportunity to familiarise themselves with Standing Order 193. I draw to their attention the last three lines in particular: “... and the Speaker shall, on a motion being made thereupon, put the same question, without amendment or debate, as if the offence had been committed in the House itself". There is no provision under that Standing Order for the Speaker to do any other single thing. If members are in any doubt about that they should reread the Standing Order. Therefore, in accordance with the requirement of Standing Order 193, I call upon the Leader of the House.
Hon. VENN YOUNG (Waitotara): I raise a point of order, Mr Speaker. The Committee has been debating a very difficult proposal—
Mr SPEAKER: Order! We are dealing with a very serious matter, and I remind the member for Waitotara that the ultimate purpose of a point of order is to ask for some action to be taken or relief to be given by the Chair. To raise a spurious point of order is highly disorderly-by that, I mean a point of order that does not have the purpose to which I have just referred. I have drawn the attention of the House to the limitations of the Speaker's ability in the matter. The requirements of the Standing Order are absolute, and admit no departure from the procedure laid down. As long as the member for Waitotara is fully aware of that, is not involved in a spurious point of order, and concludes it by requesting some action from the Chair that would make the point of order totally in order, he may continue.
Hon. VENN YOUNG: The heading for Standing Order 193 is "Member may be suspended after being named". It does not say that the member shall be suspended after being named. That being the case, the Speaker has the discretion to take into account the circumstances that led to the naming of the member.
JACK LUXTON (Matamata): I draw your attention to the circumstances that led up to the incident. I moved a motion under Standing Order 289, and I refer you to the ruling—
Mr SPEAKER: Order! I am sorry to interrupt the honourable member, but no provision exists for the Speaker to review decisions that have been made by the Chairman in Committee. If there is dispute about whether correct procedural matters have been followed, it is in the authority of the Chair to review the procedure of the Committee of which the Chairman happens to be part in the light of the greater responsibility to the House; however, in the actual conduct of the proceedings of the Committee, the Chairman is in exactly the same position and has the same authority as the Speaker in the House. The Standing Orders and Speakers' Rulings specifically disallow the Speaker to review in any way a decision that has been made by the Chairman in matters of that account. Having stated that and explained the position I shall allow the member to raise his point of order, but he should bear that in mind and also remember that a spurious point of order is disorderly.
JACK LUXTON (Matamata): I raise a point of order, Mr Speaker. I have no intention to making a spurious point of order. I draw your attention to Standing Order 289. I moved that the Chairman of Committees report progress to take a Speaker's ruling. The Chairman had no alternative but to call the Speaker. Standing Order 289 states: "A motion may be made during the proceedings of a committee of the whole House that the Chairman report progress in order to obtain the Speaker's ruling on some question raised therein. Such a motion shall be put forthwith without amendment or debate." After I had moved the motion-and that was the start of the sequence-the Chairman proceeded as if the Committee was still sitting. My argument is that the moment the motion was moved the Chairman had no further business in the Chair and had to call the Speaker to rule on the matter that I wanted resolved. I have a right to have my point of order dealt with first.
Mr SPEAKER: I take cognisance of the matter the member has raised—that a motion was before the Committee that the Chairman report progress in order to obtain a Speaker's ruling. Of that I have no knowledge-it has not been reported to me—but if that were so that matter has still to be resolved by the Committee. The Committee is master of its own destiny until the motion has been put and passed-the mere putting of the motion does not involve the recall of the Speaker. Nothing in the Standing Orders states that it is any different from any other motion. That being so, the question of disorder apparently arose, from the Chairman's report, before the motion had been put. Therefore the Committee was still in control of its own affairs. A matter of disorder takes precedence over all other matters, and it is such a matter that the Chairman has reported to me. After it resumes, the Committee is free to decide whether to seek a ruling from the Chair on any matter.
Hon. MERV WELLINGTON (Papakura): I should like to make two points: one has already been mentioned by the member for Matamata, and I raise it in the form of a question to you. What happens if the first part of a two-part sequence of events—the first of which is unresolved-leads to the suspension or the naming of a member? I do not see how we can separate them, but my question is whether we can do that. I now refer to Standing Order 193, which you are required to administer in the second part. It is subtitled "Member may be suspended after being named". That leaves a question to be answered about the word "may": in the text of the Standing Order it is stated that the Chairman "shall", the Speaker “shall”, and so on. I believe that the Standing Order is deficient in that the subtitle has the operative verb “may” and the word “shall” is used in the text. The question before the House is not whether he shall be named, but whether he may be named. In arriving at an answer to that, should we not take into account the actions that preceded the member's being named-particularly if, in the opinion of the Committee, the matter might not have been handled judiciously, for whatever reason.
Mr SPEAKER: There is no difficulty about the matter at all. First, it is not a question of whether a member may be named; it is that the member may be suspended. The process of naming is one of the steps to be taken in suspending a member. The doubt that may exist has nothing to do with the text of Standing Order 193; the doubt that exists is whether the House will sustain that motion. It is not a decision of the Chair; it is not a decision of the Chairman of Committees; and it is not a decision of the Speaker-as it is on other occasions whether suspension is being considered. On this occasion it is a decision of the House, and no one may prejudge what the decision of the House will be. The member having been named, the Standing Order states that he may be suspended; that is where the element of doubt sets in.
Hon. RICHARD PREBBLE (Minister of Transport): I move, That the member for Whangarei be suspended from the service of the House.
The House divided on the question, That the motion be agreed to. Ayes 44 Anderton; Austin, M. E.; Bassett; Batchelor; Boorman; Butcher; Caygill; Clark; Colman; de Cleene; Dillon; Douglas; Dunne; Fraser; Gerbic; Goff; Gregory; Hercus; Hunt; Isbey; Keall; King; Mallard; Marshall, C. R.; Matthewson; Maxwell, R. K.; Neilson; Northey; O'Flynn; Palmer; Prebble; Rodger; Shields; Shirley; Sutton, J. R.; Sutton, W. D.; Terris; TirikateneSullivan; Tizard; Wallbank; Woollaston; Young, T. J. Tellers: Cullen; Wilde. Noes 31 Angus; Austin, H. N; Austin, W. R.; Banks; Birch; Bolger; Burdon; Cox; East; Falloon; Friedlander; Gair; Gerard; Graham; Gray; Jones; Kidd; Lee; Luxton; McLay; McLean; McTigue; Morrison; Muldoon; O'Regan; Smith; Storey; Wellington; Young, V. S. Tellers: McClay; McKinnon. Majority for: 13 Motion agreed to.
Hon. TONY FRIEDLANDER (New Plymouth): I raise a point of order, Mr Speaker. You may recall that when the Chairman of Committees was reporting on the matter that has now been dispensed with, the issue that led to that incident was that the member for Matamata sought to have a matter reported back. I ask you to rule on that.
Mr SPEAKER: I have no knowledge of that matter except what has been reported to me by the member for Matamata. If the Committee intends to pursue that matter I have no doubt that I will hear about it by the appropriate means, which are laid down in the Standing Orders.
Committee resumed.
JACK LUXTON (Matamata) moved, That progress be reported. Motion agreed to.
House resumed.
The CHAIRMAN: Mr Speaker, I have been asked to report progress and to seek your ruling on a matter that arose during the Committee's consideration of the instruction given to it by the House, "That it be an instruction to the Committee of the whole House on the Homosexual Law Reform Bill that it may consider the Bill part by part." During the discussion on the instruction the point was raised that in the past the matter had been dealt with by leave, whereas, on a motion moved by the member in charge of the Bill, the Committee proceeded to debate the question that the Bill should be debated part by part. Several members have raised objection to that procedure, on the basis that it does not conform with precedent. Other members have pointed out that as recently as last year, on the Goods and Services Tax Bill, that was a way in which a Bill that can be divided into parts might be dealt with by the Committee. It was considered advisable that you be recalled so that the matter might be determined both in terms of recent precedent and of the past practice of the House. We seek your ruling on whether to proceed with the procedure we have adopted in the debate, which is to take the instruction and consider it by way of a motion moved in the Committee, to determine whether the Bill shall be considered part by part.
Mr SPEAKER: It is not difficult to establish the tradition of the House.
JACK LUXTON (Matamata): I raise a point of order, Mr Speaker. As I asked for the Speaker to be recalled, surely I should be able to give a little background on the matter.
Mr SPEAKER: Certainly, if the member wishes to speak. I was unaware that he was on his feet.
JACK LUXTON: The Committee has a very narrow brief. It deals with the short title of a Bill; it deals with a Bill clause by clause; and it deals with amendments. It can take an instruction from the House. The motion agreed to by the House, as reported in Hansard, Volume 467, at page 8254, was: "That it be an instruction to the Committee of the whole House on the Homosexual Law Reform Bill that it may consider the Bill part by part". It was not a specific motion that it will deal with the Bill part by part; it stated that it may do so. When that matter was raised the Chairman of Committees said that it was a decision of the Committee of the whole House as to whether it would deal with it part by part. The promoter of the Bill then moved that it be dealt with part by part. It is my contention that in the Committee stage it is not a debatable issue. It is not one that divides the Committee of the whole House; rather, that proceeding takes place by leave of the Committee. If leave is given it needs the full support of every member of the House. The idea of having an instruction to the Committee from the House is that it can be done on the majority vote of the House, but a decision at the Committee stage must be taken by leave or have the concurrence of every member of the House. That is part of the democratic process. I believe it will start a series of motions that are not within the bounds of the Committee of the whole House. I believed it was of such importance that the Speaker should be recalled to give a ruling, so that it is known whether in future such motions can be moved at any time during any debate at the Committee stage.
Dr MICHAEL CULLEN (St. Kilda): I refer to McGee, pages 251 to 252, where the matter is dealt with adequately: "An instruction to the Committee of the whole House is an abstract motion... An instruction to the committee of the whole House must be permissive only. It gives the committee power to do something, it does not direct it to act in a certain way.” It goes on to explain why that is so, and, on page 252, states specifically that the debate on an instruction is restricted to the subject-matter of the motion and must not extend to the general principle or objects of the Bill. In other words, there is a motion in the House that is a permissive motion. That is then moved at the proper time-in this case it related to dealing with the Bill part by part, therefore it was moved after consideration of the short title. That motion is itself debatable. The leave of the Committee could be taken at the time debate on the short title finished, and leave could be refused; but that does not pre-empt the possibility of the motion then being moved, debated, and voted on by the Committee of the whole House. The crucial point made on page 251 of McGee is: "A committee of the whole House consists of all the members of the House and it would be absurd for the members in the House to bind themselves irrevocably to something in committee (in contrast to controlling select committees of which all members of the House are not members)."
Hon. JIM McLAY (Leader of the Opposition): I raise a point of order, Mr Speaker. As I was in the House when the proceeding commenced it might be helpful if I outline to you the sequence of events.
Mr SPEAKER: Order! With due respect, I draw to your attention that the authority of the Speaker is sought to give a ruling solely on the interpretation of the Standing Orders. The Speaker's ruling has been sought on the principles involved. The Speaker may not give a ruling on the particular incident in the Committee; that is solely within the control of the Chairman.
Hon. JIM McLAY: I realise that entirely, and I certainly do not seek a ruling on the events. They are part; they were not challenged at the time; and they are not relevant to the discussion-other than that they put the discussion on the interpretation of the Standing Orders into context so that you are not being asked to rule in a vacuum. As we moved past clause 1, the short title, which the Committee had voted on and agreed to, we proceeded to consider whether the Committee would deal with the Bill part by part, in accordance with the permissive, but certainly not mandatory, instruction from the House. The Chairman first sought leave, which, as the events suggest, was obviously denied. I would submit that that is where the matter ended. However, I suggest that it is only a matter for leave and not one for vote, which may be opposed only by a majority with a minority dissenting. The proper course of action would be for the Chairman simply to seek leave. If that leave is objected to there is no alternative but for the Committee to deal with the Bill in the manner prescribed by the Standing Orders, which is clause by clause.
Mr SPEAKER: The matter is quite clear. It is well laid down by McGee but I suggest that it is just as clearly put in Speaker's ruling 34/6, which states: "An instruction to the Committee on a Bill is an abstract motion, not an amendment to the motion to go into Committee on the Bill. It is not mandatory; it merely gives the Committee power, if it thinks fit, to consider and bring into the Bill the matters referred to in the instruction." That appears to be the position. The Committee is empowered to deal with the Bill part by part if it so wishes on an instruction from the House. The wishes of the Committee may be sought in two ways. One is the simple way of taking leave, and if all members are unanimous the wishes of the Committee are without dispute and the matter proceeds. However, the wishes of the Committee may also be sought by means of a motion so that the Committee decides by its numbers. That is nothing novel because that is what the Committee does when it passes any clause or any part of a Bill that subsequently becomes part of its reporting back to the House. That is the normal procedure of the Committee to determine its own wishes. In the present case it was decided that the Committee should seek a resolution of its opinion by means of a motion, and that is entirely in accordance with the customary procedures of the House. It is a motion, like any other motion before the Committee.
Hon. JIM McLAY (Leader of the Opposition): I raise a further point of order, Mr Speaker. I accept your ruling entirely, but to assist the Committee when it considers the Bill-either clause by clause or part by part as the case may be-could the Committee, having agreed initially to consider the Bill part by part, subsequently, on a motion moved by any member, agree to consider, say, a particular and complex part clause by clause? In other words, does that one motion preclude a subsequent motion that might involve clause by clause consideration either of the remainder of the Bill or of a particular part?
Mr SPEAKER: That raises the question of what the wish of the Committee is. If the Committee in its wisdom has decided that the whole of its proceedings shall be part by part, then the Committee is bound by that decision. If someone chooses to test that on a subsequent occasion, it could only be done by leave. But if the Committee, again in its wisdom, wants to avoid prejudging something it has not yet had time to consider, and does not want to put itself into a position in which it is judging the whole Bill part by part, it is quite entitled to say that in that instance the first part will be considered as one unit, as a part, and the second part may be dealt with in the same way or clause by clause. The instruction from the House leaves the matter entirely in the hands of the Committee.
Hon. JIM McLAY: If the Committee agreed to it on Part I—
Mr SPEAKER: That does not bind it, provided the motion is worded in such a way that every member who votes on it knows exactly what he or she is voting on. But if the motion is that Part I be now considered-which would be an appropriate way of putting it-that deals only with the problem of Part I and with the problem of Part II. That can be dealt with by subsequent motions or decisions of the Committee.
Hon. JIM McLAY (Leader of the Opposition): I raise a further point of order, Mr Speaker. I hesitate to draw the matter out but we are breaking new ground with what is a very important issue-one that is a conscience issue and not of the nature of the legislation we would normally deal with part by part. Can I take it from what you have said that if, as is the case in this instance, a general motion that the Bill be considered part by part is passed by the Committee, it is still open for the Committee to seek leave or move that, say, Part III or Part IV be dealt with on a clause by clause basis?
Mr SPEAKER: No, I am sorry, if a general motion to consider that whole Bill part by part is taken, then the Committee is bound by that; but if the Committee does not wish to be bound by that it may do it in the manner that I suggested before, so that it deals solely with the matter in front of it. Then, when it comes to the other parts, the Committee has not bound itself to how they will be dealt with and the treatment of those parts can be resolved subsequently. This motion is like any other motion. If the motion before the House is that the whole Bill be considered part by part, then it is competent for any member to amend it by moving that only Part I be so considered and that Part II be left for further consideration by the Committee. The matter is entirely in the Committee's own hands.
Committee resumed Part I.
Amendments of Crimes Act 1961 (continued).
Hon. Dr MICHAEL BASSETT (Minister of Health) moved, That the question be now put.
The CHAIRMAN declined to accept the motion.
GRAEME LEE (Hauraki) moved, That the motion moved by the member for Wellington Central be amended by deleting the words "part by part", and substituting the words "clause by clause on Part I; and that speaking times be strictly in accordance with the Standing Orders".
The CHAIRMAN declined to accept the amendment on the ground that it negatived the motion before the Committee. Progress reported. The House adjourned at 10.55 p.m.