Smith NickHon Dr NICK SMITH (National—Nelson): I want to speak to my new clause 5A in respect of the issue of judicial review. I would like members of the committee to reflect as they walk into this Parliament every day past the picture the painting of the signing of the Bill of Rights. The reason that picture sits in that pivotal place is that 330 years ago men and women gave up their lives in the Glorious Revolution to provide for some very basic rights and principles of democracy in this Parliament.There were two very clear principles. The first of those was that no member of Parliament would be removed from office—Dr Deborah Russell: Doesn't know his history. There was no blood in the Glorious Revolution.Hon Dr NICK SMITH: —except by voters. I would like it if the screaming member opposite would take a call because this stuff does matter and what she and her colleagues are doing is a total disgrace for anybody that believes in democratic rights.The second really important celebration of rights that's reflected in that painting is freedom of speech. Let me explain why that is so relevant to the amendments in respect of new clause 5A of this bill. The Minister in the chair Andrew Little and the Government have repeatedly asserted that this bill complies with the Bill of Rights. Now the problem is that the Solicitor-General 15 years ago in a report on an identical bill said that it did not. We know that there are 23 constitutional experts who say it does not. We have the Law Society saying it does not. But we have one person—David Parker—who says it does comply and members opposite hang their hats on that.So this amendment is very simple for the Minister in the chair. If you really believe in the integrity of your New Zealand Bill of Rights Act clearance on this bill you will support the very simple amendment that says Well let's leave it to the courts to decide." Righto? If they're so sure of their ground and if they really believe in what they have repeatedly said—"This bill complies with the Bill of Rights."—they will vote for our amendment that says that this bill takes legal effect only in the event that the High Court agrees with their view that it complies with the New Zealand Bill of Rights Act. If they don't vote for that members opposite are effectively tearing up 330 proud years of Westminster parliamentary principles in respect of that Bill of Rights and that should send shudders down the spines of freedom-loving New Zealanders.Here's the second important amendment: I note that the Clerk of the House the Law Society and over 35 submissions before the Justice Committee said that there is legal doubt over whether you can judicially review the decision of a party leader to sack a member of Parliament. Let me tell you how serious it is. If we go back to when the Court of Appeal considered the case of Awatere Huata v Prebble Justices Elias Gault Keith Blanchard and Tipping considered the judgment at that time and if you read that judgment every one of those judges said this: there is doubt as to whether these judicial review proceedings can go ahead because under parliamentary privilege the courts are not meant to intrude into the business of Parliament.Hon Shane Jones: Oh he's making it up as usual—making it up.Hon Dr NICK SMITH: Well I say to Mr Jones read the decision of the Court of Appeal and even better than that read the submission of the Clerk of the House. Is the member Mr Jones saying that the Clerk of the House is wrong because not only did the courts say there was very real doubt as to whether you could take judicial review proceedings but actually since then we have significantly passed through this Parliament the Parliamentary Privilege Act of 2014 and the Judicial Review Procedure Act of 2016 both valued pieces of work by my colleague Chris Finlayson. So I say to the Minister in the chair: why would you not support an amendment that makes absolutely explicit that there is the right of judicial review for a member of Parliament who is to be kicked out of this Parliament by their party leader? The Office of the Clerk of the House said in their submission to the select committee that we should make this change; that there was very real legal doubt around the right of judicial review and that was repeated by so many other submitters.Let me also say to members opposite how important it is in terms of where they have hung their hats. David Parker the Attorney-General said in his New Zealand Bill of Rights Act clearance of this bill that it was very finely balanced. He accepted that it would have a chilling effect but he said that it complied with the New Zealand Bill of Rights Act because of judicial review and the Law Society came to the select committee and said "The Attorney-General is wrong. There is not automatically judicial review." So if the Government really wants to hang its hat on David Parker's legal view around the New Zealand Bill of Rights Act then we must absolutely provide the explicit right for judicial review with the amendment that is in my name.I say to members opposite: I've been here for 27 years and I have never heard the Clerk's Office submit against a Government bill—never. But they understand in the Clerk's Office the way in which Parliament's rights are being ripped up with this bill and thus their recommendation that we at least provide some sort of check on the power of a party leader to indiscriminately dismiss a member from this House by ensuring there is judicial review.Then there's a third amendment in my name that is equally important. Again the Clerk of the House the Law Society and an additional 32 submitters said that this bill is unworkable unless we clarify the bounds of this legislation with the Parliamentary Privilege Act because the Parliamentary Privilege Act says the courts are not allowed to use our voting records in the House. So if you take an academic situation—Mr Darroch over there is fired from New Zealand First he judicially reviews it and he goes to the court and says "But Mr Justice I voted with the New Zealand First Party on every single vote." Without my amendment Mr Darroch that evidence of your voting record—Hon Shane Jones: I raise a point of order Mr Chairperson. It's a well-established tradition in the House—now we should not take ourselves too seriously and obviously that former Minister doesn't—and it's only right that he greet my colleague in a professional and constitutionally correct manner.Hon Dr NICK SMITH: Mr Ball—I will refer to him as Mr Ball yes.CHAIRPERSON (Adrian Rurawhe): Yes—Hon Dr NICK SMITH: Absolutely. I'd say to Mr—CHAIRPERSON (Adrian Rurawhe): —and I'll make that ruling while I'm on my feet thank you. It has been a little bit too common so I remind members to use correct names. I'm sure that in this instance it was not deliberate and I want to acknowledge the Hon Dr Nick Smith.Hon Dr NICK SMITH: So my claim is that unless you support the amendment providing the clarity between the Parliamentary Privilege Act and this bill you will not be able to use voting records in the courts to be able to proceed with a judicial review. Far from this being a controversial amendment this is what was recommended by the Clerk's Office this was actually recommended by Parliamentary counsel and this was recommended by the New Zealand Law Society.If members opposite including the Green Party vote against these amendments they are effectively voting for the absolute unconstrained discretion—unchecked—of a party leader being able to dismiss an MP from Parliament without any sort of judicial check. Here's the hard part: without these amendments the only issues for the court will be whether the piece of paper was signed and whether the correct number of days were provided. Any sort of check on whether that is an unreasonable exceedance of the leader's powers will not be there. So I genuinely urge this Parliament to support those amendments."