Mallard Trevor: New Zealand Flag Referendums Bill — In CommitteeText is incorporated into the Bound VolumeMallard Trevor: New Zealand Flag Referendums Bill — In Committee[Sitting date: 29 July 2015. Volume:707;Page:5495. Text is incorporated into the Bound Volume.]Hon TREVOR MALLARD (Labour—Hutt South): Mr Chairperson—Jacinda Ardern: What is that?Hon TREVOR MALLARD: This is the point. I know that we have gone beyond clause 24 now but luckily I have been looking very carefully at clause 68 which is “Validation of irregularities” and clause 68 refers back to clause 24. Therefore I thought it would be a good idea for the members who earlier in the debate pleaded that they did not know what a facsimile machine if I found one for them and I brought it here.To be absolutely fair I could be just about accused of trawling through the rubbish to get it. I found this machine in a pile of things that were heading towards the rubbish and had been sitting outside a member’s office for some time. For members around this Chamber who are not aware what a facsimile machine is this is one of them.Hon Ruth Dyson: How does it work?Hon TREVOR MALLARD: I am not absolutely certain but there are plugs that go into a telephone line. To be absolutely fair this is a modern version because it can also act as a photocopier. It is one of the more modern machines around—Dr Megan Woods: Where do you put the carbon?Hon TREVOR MALLARD: No there is no carbon required in this photocopier-facsimile machine. In fact it will work with things that are written on golf ball typewriters as well as the old Imperials which most of us used two fingers for.I am looking at the members. Other than my colleague the Hon Ruth Dyson who I know is above 40 I think hardly any other members on the Labour side of this Chamber would have in their working lives been involved in jobs where facsimile machines were still technology that was used.This is what a facsimile machine is and I would like to bet that there are not many people on Raoul Island who use them anymore.Hon Ruth Dyson: What about on ships?Hon TREVOR MALLARD: And of course not on ships. Clearly if you can get through to a ship you can get through by email. If you have got the technology to get there by telephone line—or not a line obviously with a ship—or remotely then these machines can be used.But the interesting thing is that in trying to work out how I could get the facsimile machine into the debate in a proper way it caused me to look very very carefully at clause 67 and in particular clause 68. I want to say that this clause is an outrage. This clause is an absolute outrage. What this clause effectively does especially in 68(3)(d)—under a claim to validate irregularities—is allow the Governor-General on the recommendation of the Prime Minister “to make such other provision for the case as the Governor-General thinks fit.” I want to ask Denis O’Rourke down there. Remembering that the Governor-General has to act on the advice of the Prime Minister if the Prime Minister says “I do not like the result of the referendum.” is it within the bounds of the Governor-General under 68(3) by dictation of the Prime Minister to override the legislation and to change the result? I know Mr O’Rourke is a lawyer.I just want to ask people to look really really carefully at clause 68(1) and ask what is a fundamental constitutional question and that is whether primary legislation should be overridden by regulation.Chris Bishop: Sounds like a Regs Review issue.Hon TREVOR MALLARD: Chris Bishop says yes. Chris Bishop says: “Yes that is a good approach for legislation.” Well I just tend to differ. I tend to differ with Chris Bishop on that. You know all of the constitutional arrangements I have ever understood said that Parliament made the law and that regulation was subservient to that and that regulation—secondary legislation—should not override primary legislation.I ask the Hon Michael Woodhouse the Minister in the chair whether in fact all of clause 68(2)(a) to (e) and 68(3)(a) to (d) has the effect of giving the right to make secondary legislation that would override the provisions of the primary legislation. I just want to ask whether that matter was considered by the Regulations Review Committee because in my view that regulation—Chris Bishop: No.Hon TREVOR MALLARD: No it was not. Chris Bishop says it was not. I am pleased that it was not because I would have thought that we would have had a report from—I think David Parker chairs the committee—Chris Bishop: Cunliffe. David Cunliffe.Hon TREVOR MALLARD: David Cunliffe chairs the committee? Right well I am sure David Cunliffe would have seen that that was inappropriate and we would have had a report.One of the questions I have got is what is happening within the processes of the House that the Regulations Review Committee did not look at the regulation-making powers in this bill? You know I am sort of glad Geoffrey Palmer is still alive because if he were dead he would be spinning in his grave. He would be exceptionally angry. I am sure he would be exceptionally angry.Dr Megan Woods: I’m sure he would.Hon TREVOR MALLARD: I know. I spent some time with Geoffrey on Sunday. He still attends this Parliament sometimes by mistake and I think it is fair to say that coming to the function celebrating 150 years of Parliament being in Wellington was a mistake for the Rt Hon Sir Geoffrey Palmer and he slipped away pretty damn quickly. But if he had had on his way out a look at this regulation-making power he would have been absolutely outraged. It is one of the things that we were taught. Geoffrey you know could sometimes be a bit precious. He would sometimes go just a bit far but there was some stuff that he told us when we were backbenchers in the 1980s. He was Deputy Prime Minister and the Minister of Justice for much of that time and one of the things that he made absolutely clear to us is that you have primary legislation and secondary legislation which is the regulations and the regulations have to be subservient and you cannot amend the letter of the law passed by this Parliament by passing a regulation—and that is what this purports to do.I just want to say to members who are on the select committee—frankly I am sort of slightly grumpy with some of my own colleagues for not focusing on this.Poto Williams: You’re focusing on the fax machine.Hon TREVOR MALLARD: What? No I am not focusing on the fax machine. I know that members may want to trip on to the clause past clause 68 and may want to focus on that one but clause 68 “Validation of irregularities” is one that I think is very important. Remember that the heading of a clause is not part of the law. The heading of the clause is something that is not interpreted when it comes to the court. It is the substance. It is the lighter-coloured words in subclauses (1) (2) and (3) those words together that are the law we are currently passing. The heading is something that is not interpreted by the courts.So although the heading does say “Validation of irregularities” actually the bits that we need to look at are the bits that say that “the Governor-General may by Order in Council do any of the things described in subsection (3).” and more important as it says in subclause (3)(b) “validate anything done before or after the time required;”. Validate anything that is done? Validate anything that is done before or after the time required? Does that mean that if there is a package of votes that occur well outside the period then that is—