Electoral (Vacancies) Amendment Bill — First Reading 
Electoral (Vacancies) Amendment Bill — First Reading 
[Volume:610;Page:7707] 
Electoral (Vacancies) Amendment Bill 
First Reading 
Hon RICK BARKER (Associate Minister of Justice) 
: 
 I move  
That the Electoral (Vacancies) Amendment Bill be now read a first time. 
 Because of the urgency accorded to this bill it is the Government’s intention that the bill be passed through all its stages without referral to a select committee. However for reasons that I will explain I will be writing to the Justice and Electoral Committee inviting it to inquire into the scope and application of section 55 of the Electoral Act for future Parliaments. 
The purpose of this bill is simple. It is to ensure that no members of this forty-seventh Parliament lose their seats merely because they swear allegiance to or obtain the citizenship of another country as long as they do not renounce their New Zealand citizenship. Section 55(1)(b) of the Electoral Act 1993 provides that the seat of a member is vacant if he or she swears allegiance to a foreign power or prince. Section 55(1)(c) provides that a member’s seat is vacated if that member takes out citizenship of another country or takes other action such as renewing a passport which may cause the same result. The bill provides that these provisions will not apply to any member of this Parliament as though the bill had been in force on 14 August 2002. That was the day that the writ for the election of members of Parliament was returned. The bill applies only to this Parliament and will expire at the close of polling at the next general election. 
The bill has been introduced on the advice and recommendation of a majority of the Privileges Committee. It has been triggered by the situation of the member of Parliament for New Plymouth a very popular member with a majority of 14930 votes. Mr Duynhoven a Dutch citizen by birth a New Zealand citizen by birth and first elected to this House in 1987 lost his Dutch citizenship by operation of a Dutch law in 1995. He took the opportunity to reinstate his Dutch citizenship this year following the repeal of the 1995 law. By doing so he inadvertently brought section 55(1)(c) of the Electoral Act into operation. This provides that the seat of a member is vacated if the member obtains the citizenship of another country. 
Did Mr Duynhoven dupe his constituents in reinstating his Dutch citizenship? No. Mr Duynhoven—his name is a good clue as to his origin—is rightly proud of his Dutch heritage and the electors of New Plymouth were well aware of it when he was elected in 1987. He was a Dutch citizen then and when he was re-elected in 1993. He has taken no oath of allegiance to any power other than to Her Majesty the Queen of New Zealand. In completing the documentation to reinstate his Dutch citizenship he was simply recovering an entitlement he was born with as a consequence of his father’s nationality. 
A member in Mr Duynhoven’s situation should not lose his seat. Dual citizenship is not unusual in New Zealand. We have a very relaxed approach to our citizens adopting the citizenship of other countries. No person who knows Mr Duynhoven doubts his loyalty and commitment to this country. Nor for that matter should anyone reasonably question the commitment to New Zealand of other members of this House. There is no reason to believe that members of Parliament with dual citizenship cannot put New Zealand’s interests foremost. 
Section 55 and in particular subsection (1)(b) and (c) needs a thorough review. The provision was first introduced into New Zealand through the New Zealand Constitution Act 1852 an Act of the Parliament in Britain. Its terms have been largely unchanged since then. Under the close examination provoked by Mr Duynhoven’s situation it has become apparent that this situation does not meet the needs of modern New Zealand and its Parliament and indeed its operation gives rise to some inappropriate and surprising consequences. 
The constitutional and legal context today is completely different from that of 1852. In 1852 there was no concept of New Zealand citizenship. We were all British subjects. It was not until 1948 with the British Nationality and Citizenship Act that provision for New Zealand citizenship was introduced. It was not until 1975 that the Electoral Act caught up with our sense of nationhood and we made New Zealand citizenship a requirement of candidacy for Parliament. In 1975 an electoral amendment also provided an exception for British subjects registered as electors; it provided that they could contest parliamentary elections. It is clear from the report of the select committee considering the amendment that this exception was intended to be a short-lived opportunity designed to allow those people to obtain citizenship. As it happened Parliament did not get round to removing that exception until last year. 
Section 55 as it is currently drafted appears to have some odd effects. A New Zealand citizen who is a dual citizen can as is quite proper be a candidate and be elected. However a New Zealand citizen who obtains dual citizenship after the election loses his or her seat. But get this: members who renounce their New Zealand citizenship do not lose their seats. That is quite extraordinary. 
It has been suggested that the object of the provision might be to require members who obtain dual citizenship after their election to re-test their support with the electorate. It is not at all clear that this was the objective but if it was the rationale it does not work in an MMP Parliament. List members do not have the opportunity to contest a by-election. They are simply replaced by the next person on the list. 
Clearly section 55 needs to be looked at. This bill suspends its operation for this Parliament and addresses Mr Duynhoven’s situation and that of any other members in a similar situation. This will allow the Justice and Electoral Committee the opportunity to inquire into the scope and application of section 55 and consider and report on what the law should be for future Parliaments. 
I want to touch on the retrospective aspect of this bill. It provides that in determining whether the seat of a member has been vacated by operation of section 55(1)(b) and (c) the bill must be taken to have been in force on 14 August 2002. This was the day that the writ for the election of members of this Parliament was returned. Retrospective legislation is wrong where it takes away rights. However it is perfectly acceptable constitutionally and not uncommon in this Parliament to confer a benefit or remedy a defect or an inadvertent detriment through retrospective legislation. For example the 1997 Parliament enacted the Fisheries (Quota Operations Validation) Act to validate retrospectively allocations and entitlements under the fisheries quota system. In 1998 the Oaths and Declarations (Validation) Amendment Act was passed retrospectively to validate oaths and declarations improperly taken by employees of New Zealand Post. There are many other examples of retrospective legislation that has been very agreeable. 
This bill before the House suspends the operation of provisions that have to say the least inappropriate surprising and unexpected consequences. It confers a benefit on all members of this forty-seventh Parliament. Its application is limited to this Parliament and expires with the next general election. It provides an opportunity for a thorough review of the law by the Justice and Electoral Committee so that section 55 can be tidied up for the benefit of future Parliaments. I commend this bill to the House. 
Hon ROGER SOWRY (Deputy Leader—NZ National) 
: 
 Let me make it quite clear that the National Party totally opposes this bill. This bill is a cynical manipulation of Parliament by the Labour Government supported obviously by the Progressives and United Future. It is a cynical attempt to allow a member of Parliament who has broken the law to get off that breaking of the law. I start by saying that not only is this a cynical move—in fact the most cynical move that I have ever seen this Parliament take part in—but I do not believe for one moment that people who watch this from the outside think anything other than that this is a carefully planned move. 
The danger is that Mr Speaker himself is in danger of being seen to be part of the planning because of his inaction under section 129(1) of the Electoral Act 1993 whereby he is required in circumstances such as these to declare a seat vacant. He is required to do so without delay. So we find ourselves here tonight to try to avoid his having to do that on the next sitting day. Certainly the Opposition believes that he should have done that today at 2 o’clock when it was clear to every New Zealander that Mr Duynhoven was no longer eligible to sit in Parliament. Rather than Mr Speaker making that decision today we have seen him for his own reasons decide not to make that decision until the next sitting day thereby providing the Government with a window of opportunity in which to change the law in a retrospective way. 
We are being asked to believe that that is just pure good luck for the Government—that it is coincidence that the cards happened to fall the Government’s way. I do not think New Zealanders believe that. New Zealanders believe that this Government micromanages. That is what the Government spin has been about for years. I believe that it has micromanaged this and I believe that it is in danger of looking as if it is micromanaging the Speakership of Parliament. That causes me a great deal of concern and pain quite frankly because I for one believe in the integrity of this place. That is undermined by this bill. 
The bill states that a member of the Labour Party who breaks the law can get a law change retrospectively and that is OK. We have seen a whole range of spin from the Government as to why that is OK. First of all we were told that it is a silly law. I say to members of the Labour Party that I get all the time people who were picked up for driving less than 10 kilometres per hour over the speed limit and got a ticket and they think that is a silly law. But they do not have the privilege of having the law changed retrospectively for them. Only Labour members have that opportunity. Then we were told by Dr Cullen that the reason was the cost. It would cost $350000 to have a by-election New Zealanders would not like that so the Government would change the law to avoid it. Well it will cost taxpayers $3.5 million in taxpayer-funded time to change the law so the cost argument does not stack up either. Then we were told—this was the doozy—that Mr Duynhoven would win his seat anyway. We even heard Michael Cullen saying tonight: “Well he’s got the largest majority in the country. He’s going to win anyway so let’s not have a by-election.” 
Simon Power 
: Let’s not have a general election then. 
Hon ROGER SOWRY 
: What a weak pathetic excuse! Does that mean that if Mr Duynhoven had been a list MP he would be gone? There is no cost in bringing in the next list MP. 
Simon Power 
: A marginal seat. 
Hon ROGER SOWRY 
: If his seat was a marginal seat and he did not have that huge majority would we be having a by-election? If it was a marginal National seat perhaps we would be having a by-election but as it is a safe Labour seat we do not. Perhaps that is the reason. I have never heard such cynical reasons given—and reported on—for legislation that we are being asked to support. This is arrogance. This shows that the Labour Party will go to any length at all to keep one of its members in Parliament. If a member has broken the law that party gets out there puts the spin around tries to discredit the law then changes it for that member. Those are the reasons that we are opposing this bill. 
I say again that I regard it as a tragedy for the Speakership of this Parliament that the Speaker is now being seen by some to be complicit in that approach. That is a tragedy for the Speakership of this Parliament. Speakers come and go. Speakers are judged on their independence their integrity their standing up for Independents and for smaller parties in Parliament and their standing up for the parliamentary process. 
Simon Power 
: Parliament’s man. 
Hon ROGER SOWRY 
: The Speaker is Parliament’s person and the only thing any of us including the Speaker walk away with from this place is the respect of other parliamentarians. When I see law as clear as this law is and I see a process that can only look like the Government taking advantage of an opportunity that has come its way because the Speaker decided to postpone making a decision when he did not have to postpone it—in fact when the law states that he should not have postponed it—I have to say that is a sad day for the Speakership. 
What about the bill itself? Is this a bill that states that the law is so wrong that it will be fixed? No. It is a bill that fixes it for this Parliament; after the next election it will be gone. 
Simon Power 
: It’s not a matter of principle. 
Hon ROGER SOWRY 
: There is no great principle. This is not a change for all time. This is a retrospective change for members of this Parliament. Presumably in the next Parliament if a Labour member goes and does this we will have another piece of retrospective legislation. Mr Barker is shaking his head; it will not. The member might have a marginal seat or be a list member so Labour might want to have a by-election. 
This is a nonsense and the Labour Party knows it. Why not decide to change the law for all time? Why do it just for this Parliament if the principle is so big and if this law is so archaic—even though Parliament addressed it just a few short years ago; last year in fact? This shows how cynical the Labour Party has become. This shows a degree of arrogance: “We’re here and we’ll break every rule to stay here.” The public will see through that. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: I call the Hon Peter Dunne. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 I raise a point of order Mr Speaker. I know this matter relates to the declaration of the results of the election in August last year. If you have a careful look at the E9 for 2002 you will see it shows that New Zealand First came third. That means we are third in this House on a matter like this. This convenient arrangement whereby sometimes they let us speak and sometime they do not is simply wrong. I do not think any fair-minded New Zealander—or fair-minded parliamentarian for that matter—thinks that the priority you have just given is fair and right. We are the third-biggest party in this Parliament—we will soon be the second and not long after that the first—but in the meantime we are happy to go third but we are not happy to go fourth or fifth. It is just not right. I want a ruling on this. We have put up with it and frankly we have had enough of it because it is not fair and it is not right. We always understood from the day MMP began in this House in 1996 that that was the way the order of speakers would go. We cannot have Mr Dunne sometimes taking priority and sometimes not. If the Labour Party does not want to use its numbers it cannot do a deal and circumvent the electoral results of 2002. 
Hon RICHARD PREBBLE (Leader—ACT NZ) 
: 
 I am somewhat sympathetic to the points made by the right honourable gentleman because Standing Order 103 on the issue of deciding who to call states that the “overall participation in a debate should be approximately proportional to party membership in the House:” and under that ruling the right honourable gentleman from New Zealand First should have been called next. However Mr Assistant Speaker if you are upholding a Speaker’s ruling that basically says United Future is really part of this Labour-led Government then I say make our day. I actually think you are correct. I regard the United Future party as a 100-percent reliable doormat for this Government. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: I thank both members for raising that issue. They are not wrong but a certain order is followed to maintain order. I have called the Hon Peter Dunne. If he wishes to cede to the member whose party is obviously the third largest I would accept that but I have called the Hon Peter Dunne. 
Hon PETER DUNNE (Leader—United Future) 
: 
 This bill is probably one of the more significant measures to come before this Parliament in recent years. It is significant because it is unique and it is significant because of the circumstances that surround it. I want to say at the beginning that United Future will be giving conditional support to this bill. We will be voting for its introduction but I will be indicating some amendments to be moved at the Committee stage and there are a number of matters in the bill itself that are of concern and arise out of the discussion at the Privileges Committee over the last week or so. This is a serious matter and I think the House ought to deal with it in a serious tone. The speaker who preceded me at least attempted to do that and I acknowledge that contribution. 
The issue that this matter turns on is essentially related to the particular circumstances surrounding Mr Duynhoven. The argument will be raised by many particularly those outside this place about preferential treatment for members of Parliament over ordinary citizens. I think that is an argument that needs to be taken very carefully at face value because the circumstances that the previous speaker described—of being a few kilometres over the speeding limit or I could imagine others would say of being just over the blood/alcohol limit—are not akin to the circumstances in this matter either in their severity or in their relative impact. In both those examples there is a degree of knowledge involved. People know what the speed limit is and they know what the blood/alcohol limits are. 
The issue here relates to the particular provisions of section 55 of the Electoral Act. It is clear by all accounts to everyone who was present at the Privileges Committee that there was no fault intended by Mr Duynhoven’s actions and that there was no deliberate effort on his part to deceive or to circumvent the law. He is certainly a victim and he is certainly caught by it but he is not someone who set out deliberately to deceive or to break the law. That is the first point I want to make in respect of this charge. 
The second point that needs to be made concerns what this legislation is seeking to do. I think that as it is drafted it is too broad because it goes beyond the circumstances of Mr Duynhoven. If we look at the provisions of Part 2 in particular following on from the expiry clause we see that a potentially absurd situation is created whereby Mr Duynhoven is excused for his actions in the period prior to the passage of the bill but every other member of Parliament who might seek to take out dual nationality or dual citizenship or to renew a passport in the period subsequent to the passage of this bill and prior to the next election is protected. That is clearly absurd because Mr Duynhoven is being held to account for actions that he took yet we are in effect by the breadth of this bill conferring a grace on other people to carry out with impunity precisely the same action. 
Ron Mark 
: Who are they? 
Hon PETER DUNNE 
: I am glad the member made that interjection because I think that is a very relevant point. There have been accusations throughout this whole saga of other people being in this situation and I am very concerned that there may well be other people who have sat quietly and tightly throughout this debate and who have been quite happy to let Mr Duynhoven be the fall guy. Mr Duynhoven will be validated by this legislation; those people will continue to remain silent and relieved. Yet in the way that the bill is crafted it potentially gives them an out in terms of prospective action. I think that was a very relevant interjection from the member and I thank him for it. There is an element of unfairness here. [ 
Interruption 
] We do not know who they are. The allegations have been made and the one thing that is certain is that people keep saying there are people in this category yet Mr Duynhoven is the only one who in one sense has had the courage to come forward and cause this action to be initiated. So I will be moving an amendment in the Committee stage to limit the application of this bill to the period of time that ends on 6 August 2003. 
Dr Wayne Mapp 
: What if the Government doesn’t accept that amendment—will you still vote for it? 
Hon PETER DUNNE 
: I tell the member that we are simply commencing the debate now and he will have to wait and see how the debate transpires. He will get his answer in due course. 
The reality of this measure is that one has to go back and look at the intention of the clauses that were passed—going right back to 1852. It is absolutely clear that the circumstances at the time of the passage of those clauses and their subsequent carry-through related to a far different world. At the time of their passage there was essentially the British Empire hostile Europe and not much else. It is also clear that had these—[ 
Interruption 
] I say to Mr Prebble that my history is accurate. 
Hon Richard Prebble 
: 1852—a hostile Europe? There was no war between the Napoleonic Wars and the First World War— 
Hon PETER DUNNE 
: Oh come! There were the Franco-Prussian War and the war of Schleswig-Holstein in 1866. I tell Mr Prebble that there were a whole lot of wars. He should not display his ignorance. This is an important issue. We can even take it right through to the outbreak of World War II and argue with some validity that these provisions were relevant then—certainly in the way in which we detained people deemed to be hostile aliens. But I do not think that anyone could mount a reasonable argument today to suggest that relations with the Netherlands have so deteriorated that any member who takes an action in respect of that country is breaching the intent of the provisions set out in the original bill. 
Gerry Brownlee 
: That is not the point. 
Hon PETER DUNNE 
: It is actually highly relevant to this bill in terms of what the intent is. I think that members of the Privileges Committee to a person were surprised to learn of the scope of the coverage. They may well have claimed prior knowledge but I think there was genuine surprise. 
The issues that now have to be addressed are firstly the relevance of the provision in today’s environment and secondly what changes ought to be made either to toughen the law in respect of people holding dual nationality or other arrangements in the future or simply to recognise that it should no longer apply. In this case the bill is a simple device to validate the position in so far as Mr Duynhoven is concerned to clear the decks in that regard and then to allow the Justice and Electoral Committee as has already been foreshadowed to carry out a wider inquiry. My concern remains the breadth of the bill as drafted because as Mr Mark rightly pointed out there will be others who benefit very substantially from it through their silence. 
It is easy to make all sorts of accusations about intent and motivation in this measure. I want to make this point very clear because I know it has been said although not by the previous speaker that there is a parallel situation at the moment whereby another member of Parliament faces criminal action initiated by the Solicitor-General in respect of comments he made. I actually think Parliament should afford him the same protection that is being afforded Mr Duynhoven. I believe that in the case of Dr Smith—and I have said this to him directly—his ability to represent his constituents is severely constrained by the threat of a contempt action being mounted against him. Every single member who comes to this Parliament comes here to advocate for constituents. If members say this measure is being done for Mr Duynhoven but people would not act in a similar way for Dr Smith then I want to say that United Future would support a measure in respect of Dr Smith because his action impinges upon the actions of all members of Parliament. It is not relevant to this bill but I wanted to say that in terms of people talking about special interest I think it does cut both ways. 
So we will be supporting the introduction of the bill and we will wait to see what happens to the amendments we move at the Committee stage before we further determine our position. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: I thank Mr Peters again for his point of order. The member was absolutely right. I apologise for not calling him first.  
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 That should not be allowed to happen again because if it does I will hit the roof in this House. I have put up with it for a whole year and that sort of thing should not casually happen in this Parliament. 
There is something sinister about this bill but before I get to that I want to say this in respect of Dr Smith’s case which has been raised by Mr Dunne. The trouble is that this Parliament has so many parliamentarians with a rather scurrilous record of consistency on these matters. I can recall on going to the Privileges Committee and asking it to defend my rights being told to suck it and see. I had every right to ask the committee to do so and I then went to the High Court and proved that. Yet the committee rushed off to London to defend Mr Prebble even though he was not in Parliament. Do members see what I mean? The National Party can laugh but it now wants us to support Dr Smith when in my case it would not move a muscle—and worse than that it tried to bankrupt me and failed. Even today National does not apologise for that but now when somebody has said the words outside the House and is therefore incapable of getting sanctuary under parliamentary privilege National wants us to somehow support it. It is unusual for its members to be so—well I cannot use the word but it starts with “h”—on these matters. 
Members will recall that the Speaker needed to look at the evidence regarding Mr Duynhoven before he could make a decision. It would be most unusual for the Speaker to make a decision based on for example the Solicitor-General’s testimony evidence or opinion and I can tell members why he would not do that based on past examples. I do not want to bore the House with them now but there have been past examples of the Solicitor-General’s opinion being not worth the paper it was written on. However my point was that the Speaker said on 23 July that he wanted the matter to be referred to the Privileges Committee and that he would hear the House’s conclusion on it thereafter. I think that is a proper procedure. 
On seeing the evidence that Mr Duynhoven gave to us we as a political party gave the preliminary view that we would support the rectifying or validation of his position. But what has happened here is that the Labour Party has taken my party’s bona fides given in good faith and flung that back in our face. As a consequence we cannot support this bill. I say to my colleague Harry Duynhoven that we apologise for that but he should look around amongst his own colleagues if he wants to know why that is. We in New Zealand First were happy to support Mr Duynhoven’s particular or special and unusual position being corrected because his situation is not within the usual ambit that the original legislation and the amending legislation sought to cover by way of providing for a member of Parliament’s actions. From day one we said that if the evidence stood up we would be prepared to pass retrospective legislation to support Mr Duynhoven’s position. But sadly this bill flings that commitment back in our face. 
This bill will suspend the rules and the law for the whole of this current parliamentary term from the day that the results were declared until the next election. The question is why Labour would do that. I want to know which of the Labour MPs is secretly an offender against this legislation in a much more demonstrable palpable and obvious way than Mr Duynhoven. Who is Labour trying to protect—or is there more than one person? There is no reason for Labour to take the commitment that other parties have made to rectify Mr Duynhoven’s peculiar and special circumstances and then to do away with the law for the whole of this Parliament by way of a blanket provision. Who is the secret member—or members—in Labour’s ranks who has offended against the provision in section 55(1)(c) of the Electoral Act? Who is the Labour member who is covertly hiding behind the skirts of his or her colleagues and the aprons of his or her other colleagues and hoping to gain sanctuary under this provision without ever declaring himself or herself or his or her actions? Who is that person? 
I ask that person to own up today or to be seen in time to have abused the processes of Parliament to have improperly used the Speaker the Solicitor-General and the select committee proceedings and above all to have improperly used the name of Mr Duynhoven. Those are the facts. Who is this person—or persons—in Labour’s ranks who has sold his or her soul to a foreign power and does not want to tell us? That is what that person has done and is doing. 
This is not a laughing matter. Mr Duynhoven went to the Privileges Committee for his particular case. Yet the whole of Parliament—119 of us—are to be covered by this legislation as well. We in New Zealand First do not want that provision because we are all above board and kosher. 
Hon Dr Michael Cullen 
: You’ve checked too? 
Rt Hon WINSTON PETERS 
: Yes I have checked. It was an unnecessary check because we are patriots. We do not call this party New Zealand First for nothing. We put New Zealand first—not second or third like Labour with its secret membership that obviously has dual citizenship and nationality from other parts of the world. The only reason Labour is doing this is that it has other members who are caught by this provision but who do not have what it takes to table that before Parliament. 
We intend to move an amendment to the bill to confine its application to Harry Duynhoven MP and to no one else. We will see whether the Greens are prepared to support that. 
Rod Donald 
: No way! 
Rt Hon WINSTON PETERS 
: Why am I not surprised? I am not surprised that he said “No way!” because this issue concerns a principle and principle is not what the Green Party is about. 
Steve Chadwick 
: Stop talking double Dutch. 
Rt Hon WINSTON PETERS 
: Let me tell the member for Rotorua to talk to her legally educated husband and he will tell her what the issues are about. I know she is having difficulty in grasping the issues. She should have a chat to her husband and he will tell her what they are all about. He will tell her that the use of retrospectivity is thoroughly bad unless there are no offended parties as a consequence. The consequence here is that we do not know now how many other offended parties there will be as a result of the covert secrecy and the behind-doors activities that the Labour Party in these years of Government before it goes in 2005 is becoming notorious for. 
Dail Jones 
: Nandor. 
Rt Hon WINSTON PETERS 
: Is it Nandor Tanczos? Is it my friend Mr Choudhary? Has Nandor Tanczos got a Hungarian passport? Is our colleague Mr Robson clinging to his “Ned Kelly” passport? 
Gerry Brownlee 
: Keith Locke is Cambodian. 
Rt Hon WINSTON PETERS 
: And Keith Locke has a Cambodian passport given to him by Pol Pot. That is why the Greens are voting for this provision. 
I say again that Mr Duynhoven came to us and asked whether we would support him. We said that if the evidence stacked up and he was right yes we would. However that is not the case now. The Labour Party is now saying that having got that out of us it will now make this a blanket provision. It is abusing the principle of retrospective legislation and the principle of disclosure in this case but intends to pass this measure to suspend the law for the whole of this term of Parliament. That will not do. 
Mr Palmer a former Prime Minister and leader of the Labour Party—temporarily of course—came along and talked about the  
de minimis 
 rule.  
De minimis non curat lex 
 means that the law is not mindful of small things or trivial things. But this is not a trivial matter. In all the Western democracies the election and continuance of an MP or of a country’s Government are matters of grave and great moment. That is why that defence put up by Professor Palmer was bound to fail. I have one last question. Who over there on the Government benches are the secret members who owe allegiance—or who is the secret member who owes allegiance—to some other foreign power? 
Hon RICHARD PREBBLE (Leader—ACT NZ) 
: 
 This is a very serious bill. It will amend the Electoral Act and I remember being told in law school that the Electoral Act is part of the constitution of New Zealand. It is a constitutional document; it is not an ordinary piece of legislation. We have to remember we do not have a written constitution in this country and we do not have a second Chamber. The guardians of our constitution of our Westminster system and of our rule of law are the members of Parliament in this House. There is no doubt that legally we could declare this Parliament—all of us—to be re-elected for ever and there would be nothing that the courts or the public could do about it. 
Rod Donald 
: I so move. 
Hon RICHARD PREBBLE 
: I have already heard the Greens say they think that is a good idea. 
I say to the House—[ 
Interruption 
]—and to the member who is interjecting that we as a Parliament should be very very reluctant to make a change to the constitution without having full public participation in it. Can anyone say that putting in a change in the law—a retrospective change—under urgency constitutes public consultation or proper discussion? I say that the process we are following will be a very dangerous precedent. I have attempted to find out whether there is any Commonwealth Parliament or a Parliament that we would like to associate ourselves with where a similar situation has arisen and the Parliament has decided to pass under urgency a retrospective piece of legislation. I cannot find one. There have been Australian members of Parliament who have lost their seats under a similar provision but there was no attempt by any Australian Parliament to do what we are doing. 
So I say again to Government members that to change the constitution without having the consensus support of this House is a very dangerous thing to do. Yes technically we could change it with a majority of one but is that the right thing to do? I say it is clearly the wrong thing to do. 
I also need to say that the Privileges Committee which is made up of senior members of this House listened to evidence from the country’s chief law officer the Solicitor-General. Was his advice ambiguous? No it was not. He said that section 55 of the Act is unambiguous that its meaning is clear and that its purpose is beneficial. Its purpose is to ensure that no member while sitting in this House gives allegiance to a foreign country. He said that that section had been reviewed by Parliament frequently and he pointed out that there had been an amendment to it within the last decade. So we cannot say it is a section that we have not looked at. Then we have the Clerk of the House who the Speaker told us today is the best Clerk in the Commonwealth. What was Mr McGee’s advice to us? He said that the section was quite clear and that Mr Duynhoven by his actions had made the seat vacant. There was no doubt about that at all from both those officials. 
Members should realise that the MPs on the committee came to a different view. But by the time we had finished we had the situation of the Green MP who had come to the committee feeling sympathetic to Mr Duynhoven but who said no that was the law. We had Mr Dunne whose opinions I do not often have much time for but he said that after he had listened to those opinions to Mr Duynhoven and to Geoffrey Palmer he was in no doubt that Mr Duynhoven had offended against that section of the Act. The Rt Hon Winston Peters had also reached that opinion. I had reached that view too and so had the National members. 
So given that we have already looked at the bulk of the committee who said that section 55 of the Act was ambiguous? This should worry us. The Attorney-General who should be the guardian of the constitution and should be our senior lawyer basically said to the committee that she had no faith in the Clerk of this House or in the Solicitor-General and that she thought—Waikato law school—that this section of the Act was ambiguous. The Leader of the House who likes to tell us how clever he is told us that he had difficulty in understanding it. The Minister of Immigration who is supposed to be in charge of deciding who should come to this country then tried to tell us that she could not understand that section either. 
Two interpretations of that are possible. One is that those three senior Ministers may really have difficulty in understanding the law—and is that not a worry? Or alternatively they were playing politics with a matter of the constitution and with the integrity of this House. I say to those three Ministers that if that is what they were doing then they owe a far greater duty to this Parliament and the country than any duty that they owe to their party. 
The view of the Solicitor-General and the Clerk was quite clear. It was that the seat was vacated that the law should take its course and that it was for the electors of New Plymouth to decide whether they wanted to re-elect Mr Duynhoven—not the MPs in this House. The electors may or may not elect him. 
Hon Damien O'Connor 
: They would! 
Hon RICHARD PREBBLE 
: Is the member saying to us that the Government would not have introduced this bill if Mr Duynhoven was an unpopular member? Is it all just because he is popular? Is there a different law for popular and unpopular members? It appears that we are being told that. I say the people of New Plymouth can decide whether Mr Duynhoven is popular. 
But since the member has interjected I ask whether he can deny that the Labour Party has a deep and abiding fear of by-elections. No Labour member of the House who was in Government when the Timaru by-election happened has ever forgotten that. I thought the Labour Party could not lose Timaru. I did not know there were any National Party voters in Timaru. [ 
Interruption 
] I might have helped but by God we found some National voters and those Labour members have never forgotten it. 
Do Labour members want to have a by-election on the foreshore issue? I believe that that is the real issue here. We have a Government that does not want to have the inconvenience of a by-election. It cannot be a question of the cost. The National Party said it will cost $3 million to put this bill through. According to my maths it comes to $1.9 million. That is what it costs to put Parliament into urgency. In contrast a by-election is very very cheap. 
Who are the other members who will be affected by this legislation? I want to know that. Is it Mr Barnett Mr Choudhary Dr Cullen—he told us that it was not him—Mr Field Mr Gosche Luamanuvao Winnie Laban or Mr Sutton? 
Hon Damien O'Connor 
: Is it Mr Prebble? 
Hon RICHARD PREBBLE 
: I give the House an assurance that it is not a single member of the ACT party. We asked Labour Party members in the Privileges Committee to give us that assurance and they would not. 
I believe we are doing something that is absolutely despicable. Harry Duynhoven has at least owned up. When he said he did not have a clue about the matter I believed him. He said that he had not given the matter any thought and in his case I believe him. However there are dishonourable members of Parliament—and I use the word “dishonourable”—who have given the matter some thought and who have asked the Government to pass a general blanket exemption from section 55 of the Act. Maybe it is to allow Mr Keith Locke instead of just being an advocate of the Taliban to actually go and join it because under this provision he will be legally allowed to do that. What we are doing is wrong and it is a disgrace for this Government to violate our constitution in this way. 
Debate interrupted. 
Sitting suspended from 10 p.m. to 9 a.m. (Thursday)