Dunne Peter: Privilege — Consideration of Report of Privileges Committee Electoral Act—Hon Harry Duynhoven 
Dunne Peter: Privilege — Consideration of Report of Privileges Committee Electoral Act—Hon Harry Duynhoven 
[Volume:610;Page:7847] 
Hon PETER DUNNE (Leader—United Future) 
: 
 I was a member of the Privileges Committee as well that considered the Duynhoven case and I would like to make some observations this afternoon about it and subsequent events. I do not believe that this was a case that in the end turned on whether Mr Duynhoven had taken out Dutch citizenship or Dutch nationality or the status of that. However for me it turned on a very narrow point. We received evidence about the way in which citizenship or nationality—call it what one likes—is conferred by the Dutch Government upon those people whom it deems to be eligible. The argument mounted by some during the hearing that because of change in the law in Holland earlier this year Mr Duynhoven was always deemed to be Dutch even though it had not been his understanding that he had been so is somewhat irrelevant. 
 I was prepared as the evidence unfolded to give him the benefit of the doubt but the sticking point for me came with the indication by him during his evidence that following discussions initiated not by him but by the Dutch Embassy he had formally applied to reactivate a status that he previously was not aware he had enjoyed. That was the point at which he rendered himself ineligible to remain a member of this House. Whatever other arguments could be raised about the rights and wrongs of the issue the application of section 55 (1)(c)—or (b) or whatever paragraph under section 55 one wanted to quote—became irrelevant at that point because Mr Duynhoven in terms of the statute had taken the action. I suspect had the Dutch Government conferred upon him a status akin to citizenship or nationality we may have found ourselves in a different position. He would have been the recipient of a decision not the active seeker of a decision and I think that the moment he actively sought to trigger that status he then registered himself as ineligible. I am simply for the benefit of the member who interjected making the point that this turns in the end on a very fine distinction. 
Having said that I point out that the next issue that arose for me was the relevance of section 55(1)(c) and I made the point during the debate the other night that this section was passed originally in 1852 at a time when the world was a very different place. Mr Prebble scoffed at my analysis that it was a time when the United Kingdom—the British Empire as it then was—stood alone against a hostile Europe and interjected that my view of history was flawed because there had been no wars in continental Europe between the end of the Napoleonic era—the Battle of Waterloo in 1815—and World War I. I gently sought to remind him—and I have checked the history again since—of events such as the Crimean War in the 1850s which was going on at the time this legislation was passed. The member opposite remembers it well. 
There was the Austro-Prussian War the Franco-Prussian War the wars of Italian unification the wars within the German states right through to the advent of World War I. So my point was valid; this was taking place in a very different time from now—which has no bearing at all on the status of Mr Duynhoven but does have a bearing on the relevance of these provisions to remain in our law. 
The next issue that arose for me was to quote from Gilbert and Sullivan that famous line in  
The Mikado 
: “My object all sublime I shall achieve in time to make the punishment fit the crime.” My concern was as to whether the punishment being inflicted upon Mr Duynhoven at this time was indeed fitting to the crime that he was deemed to have committed. In other words he had rendered himself ineligible to remain a member of Parliament because he had initiated actions regarding his Dutch nationality but did those actions of themselves then warrant the decision that he be deprived of his membership of this House? Upon reflection it became clear that whilst that was a point for some musing it was one that was allowed a great deal of latitude by the legislation as it now stood. He was deemed to be ineligible and therefore his seat ought to be deemed to have been vacated. 
It was at that point as the chairman of the committee said earlier that the “majority within the majority” argument came to pass at the committee regarding the action that should have been taken with regard to this situation. As was reported a minority simply said that the law should take its course and the seat should be declared vacant and a by-election held. A majority held that some amendment to the law was required to deal with this situation. I was part of the actual minority within the majority which held that the amendment that was passed should simply deal with Mr Duynhoven’s position retrospectively; in other words from the period between the actions that he took at the commencement of this Parliament through until the date that the bill was passed by Parliament—I think from 14 August 2002 to 6 August 2003 from memory. 
I was interested to hear the Green member’s comment which I found somewhat unconvincing. The majority took the view that the Act should be amended not just retrospectively to deal with past events but also prospectively to deal with future occurrences through until the time of the next general election. That causes huge problems and it was the reason in the end that United Future found that it could not support the legislation that was being passed. What we were doing was creating a contradictory situation. On the one hand we were saying to Mr Duynhoven: “We understand your predicament. We understand that unwittingly you have placed yourself in the position where your membership of the House is nullified and we are legislating to correct that action because we don’t think that the penalty that you are being inflicted with is merited by the crime that you are alleged to have committed.” 
But at the same time—and here is the really strange contradiction—we were also saying: “But anyone else from this point on until the next election who wants to do precisely the same thing with impunity is protected herewith.” Despite many attempts to find a rationale for that prospective decision we were all unsuccessful. We are still none the wiser as to why legislation had to be passed saying not just that Mr Duynhoven’s retrospective position was dealt with but everyone’s prospective situation in this Parliament right through to the next election is dealt with. So poor old Mr Duynhoven suffers the ignominy of this whole saga suffers the indignity of appearing before the Privileges Committee literally to fight for his political life while every other member of Parliament now can sit back relax go out and apply for joint nationality citizenship or whatever and be protected by the law. 
That is frankly absurd. The sour taste in the mouth for me arising from this Privileges Committee report is not the way we have dealt with Mr Duynhoven—because we certainly have drawn to the attention of the House the anomaly of his position and the need for the law to be reviewed and amended perhaps in the future—but we have the curious situation which is as far as I am aware still unresolved by this debate this afternoon where no one knows why the law applies right through to the time of the next general election. 
Dr Mapp would agree with me. I see him nodding. I do not know what his nationality aims or objectives might be but he and I could walk down to a foreign embassy tomorrow and inquire about citizenship or nationality or appointments and we would be utterly protected despite the fact of the very restrictive provisions of section 55(1)(b) and (c). And no one is any the wiser as to what is being protected here. 
So the suspicion immediately arises and has not been knocked away that this actually is not about Harry Duynhoven. He in some senses was the innocent fall guy who came along and has triggered a situation that is far wider in its context and that Parliament has given a blanket protection to; and we as members of Parliament who passed that law by a narrow majority are stillnone the wiser as to the true intent and reason of it. 
When the presiding officer referred this matter to the Privileges Committee—and I will leave aside the argument about his actions—he did so seeking some clarity from that committee. What he has got now and what the country has got is a small decision in one sense in favour of Mr Duynhoven clear and resolved rightly or wrongly but a much bigger unclear picture in respect of everyone else in this House. It is the worst of all possible outcomes. 
Dr WAYNE MAPP (NZ National—North Shore) 
: 
 It is beyond doubt and this is for the benefit of Labour members of Parliament that Mr Duynhoven was in breach of section 55 of the Electoral Act—that is he transgressed the Electoral Act. No one suggested it was a crime to apply for another passport. But what is absolutely clear beyond doubt is that Mr Duynhoven broke the law and that law is the Electoral Act. The consequence should have been that the seat was vacant—the Privileges Committee found that that occurred on 11 June at the time of Mr Duynhoven’s application—and the next consequence should have been a by-election. 
I have been listening to United Future and New Zealand First which have both argued for narrow legislation for Mr Duynhoven on the basis that his actions were inadvertent and that the consequences would be excessive. But in Australia whenever there is a breach of the Electoral Act that leads to a vacancy there is only ever one result which is a by-election. 
Why is it that in New Zealand we now effectively have two standards of law with one for Labour MPs so that if they break the electoral law and if they are in breach of their privilege to sit in this House they can go to the Government and get a law passed in their favour? What kind of message does that send to those New Zealanders who will be appearing in court tomorrow? Will they now be able to say: “Your Honour I may be in breach of the law but I have written to my local Labour member of Parliament and the Government will shortly pass a law that will absolve me of responsibility.”? 
I can see that Mr Damien O’Connor sees that that proposition is absurd—and of course it is absurd but that is exactly what the Government has done. It has established one set of laws for its recalcitrant members—and I say “members” deliberately because the situation is as Mr Dunne has said it is: someone in that Government is being protected. Someone has never owned up. Someone has done something since the last election that rendered his or her seat vacant. The reason I say that is that as a result of a discussion in the Privileges Committee each and every whip was asked whether his or party had any members who were in breach of the law and with the exception of the Labour Party each party was able to answer no it did not. But when that question was put to Labour members on the committee they refused to answer. 
Then the Government introduced legislation that referred to “vacancies”—being more than one; plural. It was disgraceful that this Parliament was forced to pass legislation last week that on the face of it protected a dishonest member an unknown person. That brings everyone in the Labour Party into disrepute. I am sure that if Labour members thought about it they could not possibly want that to be the outcome but that is the outcome they have brought on themselves. 
There is another point and it involves the officer of the Speaker. Section 129 makes it plain and clear that the duty of the Speaker when a seat is vacant is to declare the vacancy leading to a by-election. Last Wednesday at 1 o’clock this report was tabled in the House. One would assume that it is almost certain that the Clerk had given the Speaker advice of the report at 1 o’clock or shortly thereafter. The contents of the report are plain the view of the Clerk of the House is plain and the view of the Solicitor-General that was given to the committee was plain: the seat was vacant. 
We on this side of the House have yet to be satisfied as to why it was that the seat was not declared vacant no later than Wednesday last week. Yes a by-election would have been the result but that is how our constitution works and there is nothing wrong with that. That gives public confidence that the same laws that this Parliament passes apply to every single person in this country. But what we have is 52 members of the Labour Party who seek special legislation for themselves. I remind the House that every other party—with the possible exception of the Greens—asked to be exempted from the legislation and that did not happen. The Government voted against that. 
I will turn to the issue of the advice of the Solicitor-General and the Clerk of the House. The Clerk is widely recognised as the leading expert in this field in the Commonwealth. He has written extensively and has written one of the major books on this. The advice of the Clerk of the House and the Solicitor-General could not have been more clear to members of the committee yet we have an Attorney-General who has specifically rejected the advice of her senior legal adviser. It was not as if it was one of those cases where the Solicitor-General was saying: “Well on the one hand the law could be this and on the other hand it could be that.” In that situation it would be reasonable for the Attorney-General to say: “I choose this advice as opposed to that advice.” But the decision of the Solicitor-General was absolutely clear and emphatic and I believe that beyond all other members of Parliament the Attorney-General had a duty to accept that advice. 
There is something of a tradition whereby the Attorney-General sits slightly apart from other members of Cabinet so that he or she can give independent robust advice to Cabinet but this Minister has failed in that duty. 
I made an interjection to Ms Dalziel: “Whose direction?”. She can take exception to that but she cannot be surprised by that interjection when we have the spectacle of three senior Labour Cabinet Ministers—two of whom are lawyers—specifically rejecting the unambiguous advice of the Solicitor-General and the Clerk and for reasons that are totally obscure saying that the law is ambiguous. Their actions bring this House into disrepute. 
It is actions like this—with members debating this report days after the seat was vacant and days after the report was tabled—that cause New Zealanders to say that the Government has one set of laws for itself and another set for every other New Zealander who has no choice. If we want to build our democracy and build respect for the institution of Parliament then it behoves all members to observe the law and it is right that the consequences of the Electoral Act and the constitution should flow through and if that means a by-election well so be it. The consequences would then be carried out in accordance with the law. Constitutions are about observing the law; they are not about the sort of jiggery-pokery we saw in this House last week which brings our democracy into disrepute. 
Motion agreed to.