WHAT MAKES PARLIAMENT TICK?
‘LEGISLATION DIRECT’ SEMINAR FOR LAWYERS
LEGISLATIVE COUNCIL CHAMBER, PARLIAMENT
17 AUGUST 1999
OVERVIEW – HOW PARLIAMENT REALLY WORKS

SPEAKER THE HON DOUG KIDD, MP

Since I was elected in 1978, Parliament has been evolving rapidly. At that time it was very much under the control of the Minister in charge of the Legislative Department, usually the Prime Minister. So much so that one of my predecessors had to go to the Prime Minister to seek funding approval to host a lunch for a visiting delegation – and was refused. Any notions of the separation of powers between the Executive/Cabinet and the Legislature were difficult to discern.

The Speaker presided over the House and attended to some administrative matters and undertook certain ceremonial roles. It was not a position which, I for one, would have sought or accepted.

By 1979 members had secured the reference of all bills, except ‘money bills’ to select committees. By 1980 the ‘Alternative Caucus’ comprising the 1978 National intake, were insisting to ministers that select committees had the right to consider amendments to bills not incompatible with the broad policy direction of the bill. MPs on both sides were also asserting the right of select committees to initiate inquiries. Some of the first origins of economic deregulation were to be found in the Public Expenditure Committee in such work as an inquiry into the New Zealand Forest Service. It found, amongst other things, that the State forests were in the books (such as they were) as a liability and that the Forest Service did not have one professional accountant on its payroll for what was one of the largest business activities in New Zealand. Ian McLean and Roger Douglas were the sub-committee involved. Such activities were not welcomed by the Executive. Cabinet even went to the extent of diverting bills to other select committees to avoid us: I recall a Banking bill which the Minister of Finance feared would be amended to remove the provisions as to when banks were permitted to be open.

The presumption of MPs and select committees was also spreading elsewhere. By 1982 the Commerce Committee, which I chaired, flatly refused to progress a bill for the Minister of Civil Aviation which proposed a carte blanche for tertiary legislation. It died. Parliament was starting to assert itself.

Following the change of government in 1984, the new shoots emerging around the place, and which the Executive had often sought to roll flat, put on a growth spurt. This led, under Sir Geoffrey Palmer, to the enactment of the Parliamentary Service Act in 1985 and the Clerk of the House of Representatives Act in 1988.

The role of the Speaker began to develop and leapt ahead when he was deemed by the Public Finance Act 1989 to be the responsible minister for the Votes: Parliamentary Service, Office of the Clerk and the three Officers of Parliament – Auditor-General, Ombudsmen and Parliamentary Commissioner for the Environment.

In addition, the Speaker chairs the Officers of Parliament Select Committee, the Standing Orders Select Committee and the Business Committee which came with the major changing of Standing Orders at the beginning of 1996 in anticipation of MMP and is a rapidly developing institution.

The Speaker is now responsible in a ministerial sense for votes of around $150 million and over 800 staff – rather more than a number of ministers who sit around the Cabinet table. It is an interesting and wide ranging job. Indeed, it is the best job I have ever had.

A new Parliamentary Service Bill will be introduced soon further enhancing the role of the Speaker and bringing the Commission fully in to line with MMP.

In addition, in my case, the Speaker is the electorate MP for Kaikoura which extends from Cook Strait almost to the doorstep of Christchurch and comprises an area 2,000 square kilometres larger than Israel.

There are only a handful of members who have any experience of how dramatically things have changed. That is due to the fact that the average life expectancy of an MP in our Parliament, taken over the whole history of the New Zealand Parliament, is but six years. After this election, at best there will be no more than 18 who were here before the Parliamentary Service Act of 1985. As a matter of interest, there will be a maximum of only 29 who were here before the 1990 election – less than a quarter of the new House which will assemble after this year’s election. It is not a place to look to for long term careers.

Other speakers will focus on select committees, members bills and the Regulations Review Committee, all of which have been areas of considerable development over the period I describe and have seen accelerated development since the start of MMP.

Turning to the role of the Speaker in relation to the House, the first thing to note is the Speaker doesn’t speak in the sense that he does not take part in debate. However, Speakers have always had the right to sit in the House and speak and vote on the committee stages of bills. I asserted that right for the first time that anyone can remember when I made a contribution on the recent Sale of Liquor Bill. Now that petitions are no longer introduced by members on the floor of the House – they are now delivered to the Clerk who reads the list – I can see no reason why the Speaker, in his capacity as local MP, cannot sponsor petitions relating to matters arising in his own electorate and have done so. I have also sponsored a local bill for one of my district councils which would be rare, if not unique for a Speaker.

The Speaker votes, or more correctly, his vote is cast on a party vote by his Whip. MMP requires it, lest the proportionality of the House be disturbed. My predecessors could not vote in the House, except to exercise their casting vote and did not vote in Committee unless the narrowness of the Government’s majority made it essential. Neither the Speaker nor Chairs of select committees have a casting vote because that would also disturb proportionalities. Now, in the event of a tied vote, the matter is lost.

In chairing the House, which incidentally only sits on a normal week for 17 hours (of which I would sit typically for 12, the chair being taken for the rest by the Deputy Speaker or one of the two Assistant Speakers) my job is to attempt to ensure compliance with Standing Orders and in particular to uphold the rights of members and protect the rights of minorities. This latter point is largely taken care of by the new Standing Orders introduced for MMP.

The Standing Orders give great weight to the principle of proportionality. From this it can be seen that the party list vote (as affected by defections and changes of party) dominates everything. The twelve questions each day are allocated proportionate to party membership of the House. The Clerk and I establish schedules over periods of several weeks at a time so that during the period of any schedule each party and independents get exactly their proper share of the number of questions including the number of times they get to ask the first question. The same goes for the weekly one hour general debate of 12 five minute speeches for which a similar schedule is established. Most debates in the House (as opposed to the House in Committee of the Whole) are fixed time debates. Proportionality also applies, subject to some trading between parties at the margin and not infrequently the splitting of speaking times to accommodate members with a special interest.

The makeup of the House with a large number of parties and a considerable number of independent members, as well as an informal unrecognised party, leads to a more political and competitive environment. On one occasion I commented that the place was rather like a Baghdad bazaar with a plethora of stall holders all shouting their wares. With the benefit of long experience of the House my summation of it after one term of MMP is that it is neither better nor worse than before, rather that it is different. As always, a tiny number of members give the place its bad reputation in the eyes of the public. On the whole members work harder and are better informed than in former times.
With the introduction of much shorter speaking times, normally 10 minutes, debate is more focused. It is better informed by the intensive select committee process. MPs are more properly described as legislators today than they ever were.

But no one should ever run away with the idea that anyone can take the politics out of Parliament. To do so would be to destroy it. I have already said that it is more political and competitive than ever before and such must be the nature of a multi-party parliament, where each party is committed to promoting its brand and diminishing those of others.

With MMP, Parliament is much more representative than ever before. Commentators often point to the significant increase in the number of women MPs and the greater representation of Maori and Pacific Islanders and we have seen the arrival of our first MP of Asian origin. Such points are real enough but the big change has been in the range of backgrounds and lifestyles, many of which were unrepresented in public life a few years ago. The old stereotype of a Parliament of farmers on the one side and trade union officials on the other has long gone. The largest single occupational background is from the education sector.

When it comes to the behaviour of members there is an interesting contrast between what the public say and what they do. I have a steady mail from people complaining about the conduct of a small minority of members. On the other hand, they are almost invariably re-elected time and again with large majorities because they are regarded as strong and effective members. There is more than a little truth to the saying that all publicity is good publicity and being ignored is the only problem. Few seek election to Parliament who are of a retiring or quiet disposition. All members have strong opinions and strong motivation to pursue the causes they hold dear and not infrequently suffer from acute frustration when they find, soon after arrival, that others have equally strongly held contrary opinions and will not yield. More than ever in a multi-party parliament, politics is the art of the possible. Building support for proposals is not just the task of ministers. Trading at more than the margin to make progress is a skill which some ministers and members have grasped but others not. Few in the media seem able to grasp how things have changed. Most still report in terms appropriate to the old two party system. We are very much this term a Parliament in transition. It is certainly the most interesting term I have experienced and undoubtedly the most exciting one to be Speaker.

One of the best known of Parliament’s huge range of activities is Question Time. On each normal sitting day 12 questions are set down for ministers to answer. Who gets to ask a question depends on the schedule and the allocation by party managers within a party’s allocation. Question Time starts soon after formal business at 2.00pm and lasts for 45-60 minutes. In that time the 12 questions and 33-45 supplementary questions – here again more or less proportionately, are asked and answered. It is usually the most exciting period of the day. It is not infrequently noisy and highly controversial and always hugely political. It is a process where the Executive answers to the Parliament. With questions being lodged by 10.00am on the day it is very close to real time accountability – something other managers in society do not face. It is a time of challenge and contest. The Government obviously tries to present itself well, the opposition parties want to make it look bad. The whole struggle of politics between those in power (and who think they should continue in such), and those in opposition (who will not rest content until they in turn are in power), is played out. It has strong elements of a forum and theatre and is not without humour. A regular Question Time, with all its faults as seen by observers, is the hallmark of an open democracy. It is one of the first things to be constrained and indeed eliminated by powerful Executives in other lands. It is no more lively or noisy than in Canberra or Westminster.

It performs a truly critical role in society: it is really the ultimate guarantee of honest government. Every minister knows that any element of public affairs for which he or she is responsible may overnight come in contention and be the subject of a question. Everyone in every public sector department or agency knows the same. In this day, rather more than in former times, anything that goes wrong or develops any sort of a smell will be exposed sooner rather than later. The minister and departments have got to get to the bottom of it within four hours before the minister stands up to answer. For a minister who is on top of his or her portfolios it can be a time to demonstrate ability. For others it can be a time of terror. Over the years I have seen the careers of ministers made and broken by their performance in Question Time.

One of the areas of greatest change in this Parliament compared with earlier ones has been the use of Maori in Parliament. Our procedures have long recognised that any member may speak in English or Maori. Since 1985 Maori has been accorded official status along with English. There is no requirement to interpret. In my 21 years Maori has typically been used for a mihi of greater or lesser length at the beginning of a speech which the member then interpreted in summary and moved on to give the rest of his or her speech in English. It has been very rare indeed in my experience, prior to this term, for members to debate in Maori. The permitting of waiata and other compliments to speeches followed Sir Peter Tapsell himself rendering a waiata following his acceptance speech in 1993. Such expressions by way of compliments to speeches from both the floor of the House and the galleries have become rather more frequent this term on occasions of significance to Maori.

This increased use of Maori has not gone down well with a lot of the population and I am bound to say, some members. I have had more letters complaining, often in virulent terms, about the use of Maori than on any other topic and they flow in following every sitting day when the language is used.

Maori is an official language of New Zealand and its use in Parliament and in select committees is certain to increase rather than diminish. The increased number of Maori seats and the assessment by most parties that they need to ensure that a number of Maori candidates are high up their party lists, guarantees that the Maori membership of the House will grow – just as their percentage of the overall population is growing steadily. With large numbers passing through Te Kohanga Reo and now in and through Kura Kaupapa Maori and increasing numbers studying Maori at the tertiary level in both Wananga and mainstream institutions, the number of fluent speakers of Maori entering Parliament will increase steadily.
Although interpretation of speeches is not required, clearly the Speaker, to say nothing of other members, needs to understand what is going on, if only (in my case) to ensure that Standing Orders are being complied with. In the last sitting week we have seen, I think for the first time post War, the full time availability of an interpreter and it is inevitable this will increase. Simultaneous translation cannot be far away. Maori members have pointed out that to have to interrupt their speeches for interpretation as they go, or to have them summarised in English on a ‘best efforts’ basis by another person immediately on conclusion of the speech is to put constraints on the use of the language. Up until the Second World War Maori was regularly used in the House, as it had been from colonial times, with an interpreter standing alongside the member speaking. I am certain it will again become a regular feature of our Parliament, facilitated by the use of modern technology. As with other topics I have mentioned, the use of Maori, time accorded to the Maori viewpoint and issues of concern to Maori are areas of rapid development.

Of interest to lawyers is the relationship between Parliament and the courts. It is fair to observe that our courts have been places of rapid development as much as Parliament has been over recent years. Our Standing Orders have long provided that, ‘subject always to the discretion of the Speaker, and the right of the House to legislate on any matter, matters awaiting or under adjudication in any court of record may not be referred to in any motion, debate or question, including a supplementary question from the time that the case has been set down for trial or otherwise brought before the court if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case’. That Standing Order has effect in relation to a criminal case from the moment the law is set in motion by a charge being made and in other cases when proceedings have been initiated by the filing of the appropriate document in the court. It ceases to have effect when the verdict and sentence have been announced or judgement given. It reapplies from the time a notice of appeal has been lodged until the appeal has been decided.

It should be noted that there is no absolute prohibition in all circumstances from commenting on matters before the courts. For example, Parliament always has the right to legislate on any matter notwithstanding that it may be before a court. There have been a number of Speakers Rulings over the years which, on this subject as with all others, flesh out the bare bones of the Standing Orders.

Members have absolute privilege in the House and cannot be held liable outside the House in relation to statements they have made in the House. As my predecessors have ruled, the privilege that the House enjoys is not a licence for anyone to break the laws of the country outside the House. It is incumbent upon all members to treat the privilege of free speech in the House with the utmost respect and to use it only in the public interest because it has been conferred on Parliament in the public interest. If a court has made a suppression of name order it must be presumed to have been made for good reason. It should be obeyed by members in the House unless the public interest impels them to act otherwise. Like one of my predecessors “I can envisage it being necessary to disregard such an order only in the most exceptional cases”. I had reason recently to act quickly to pull up a member who appeared in a context which seemed narrowly party political to be about to breach such an order.

There has developed something of a comity between the courts on the one hand and Parliament on the other. As one of my predecessors put it so well, ‘members should respect the position of the judiciary in the judiciary’s sphere just as members would expect the judiciary to respect the privileges of Parliament’. With very rare exceptions that comity between these two elements of the constitution has been well respected over successive Parliaments. There are from time to time two main areas where that comity comes under stress on our side of Molesworth Street.

It would be fair to say there has been an increase in what some, in the legal profession, would call judicial activism since the mid-1980s. There are times when even some of the more reflective Members of Parliament wonder privately who is making the laws in this land. It would not be unfair to say that there are areas of developing interest, activity and thought in our society where there is little or no direct law or precedent available in New Zealand or indeed available internationally in any sense of easy transfer of applicability to New Zealand. In such cases which are few in number but potentially of great importance the judiciary might hesitate to seek to divine and settle the law. An appropriate conclusion in such cases might be that the parties be directed to Parliament and/or the Government to seek the development and enactment of law appropriate to the issue, and the times and which reflects the unique New Zealand perspective on things. Parliament is, after all, a representative forum (which the Courts are not) and now has well developed procedures for involving the public in its deliberations (which the Courts cannot readily do). On matters that involve judgement on matters of social and economic policy, it can reasonably be argued that Parliament is the appropriate body to take decisions.

The other area which causes pressure from time to time is in issues like sentencing, name suppression, bail and parole. I do no more than try to fairly represent the views of a significant proportion of members when I suggest that there has been over the years – it is no new thing – considerable frustration at what MPs see to be a lack of responsiveness by the courts to, for instance, longer sentences. There is the feeling that no matter what maximum sentences Parliament prescribes, the Judges’ sentencing rules seem to prevail.

Successive Attorneys-General have properly leapt to the defence of the judiciary in the face of the occasional ill-considered remark by an MP in relation to a sentence or granting of bail in a particular case. On the other hand, the argument that Parliament ought to make its laws clearer has led some MPs to wonder what has to be done to achieve that objective. It is in this environment that the demand for fixed sentences arises from time to time. I, for one, need no persuasion of the potential for terrible injustice in fixed sentences.

I want to end with some profound sentences. Winston Churchill, amongst others, has been attributed with the saying ‘that democracy is a bad form of government but all the others are so much worse’. Whatever its faults, it is the only system of government compatible with a free, open and pluralistic society. It is by nature rather inefficient and argumentative. Its main constraint is that today’s majority needs to have regard to the rights of the minority lest the democratic process reverse the positions. In the House itself the basic rule is a rather Old Testament one – you will be done as you did – that is a powerful constraint on the government of the day who might become the opposition on the morrow.

But in the end I fall back on one undeniable truth in the long run of human experience: democracy is the only system under which the people can change the government at regular intervals without the use of force. There are millions of dead around the world who might have lived out their natural lives if democracy, with all its freely acknowledged imperfections, had been available to them. The defence of democracy has cost millions their lives. The battle honours around our Chamber bear witness to the sacrifice New Zealanders have made to this priceless, fragile institution.

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