Penk ChrisCHRIS PENK (National—Helensville): Thank you Madam Chair. Part 4 in relation to clause 85—I've chosen to focus on that. I don't have many options available. It's either that or 84 and I'll get to that too. But clause 85 Regulations"—I'll make slightly different points in relation to those of Dr Nick Smith. I wouldn't try your patience by repetition but his point is a very good one on which I would like to build.Before I sort of get into the detail of the second aspect of that—and Dr Smith's covered the declaration of advertisements as such referring back to a previous provision in the bill. I'd like to talk about the prescribing of forms but just to take a step back before I do that. "The Governor-General may by Order in Council make regulations for all or any of the following purposes:" that's what we're told that can be done by the Governor-General. But just to be clear that word "may"—one doesn't instruct the Sovereign to do things so one suggests that Her Excellency as is currently the case may do these things but that's really a nicety. The reality is that the Governor-General would act on the advice of Ministers. So what we are looking at just to be very clear for the sake of the record is a set of provisions that allow effectively Cabinet and a Minister who would make recommendations that would be acted upon to the Governor-General to do the things that are set out in clause 85.The aspect regarding declaring referendum advertisements to be such—notwithstanding that the bill already has ways of determining exactly what those things are. That is a "Henry VIII" provision as Dr Smith has pointed out. I'd like to focus on the next bit which is that the Governor-General—again read Minister effectively—can prescribe forms for any matter in relation to a referendum. Well that's very interesting because at clause 16 of the same bill we have a provision named "Form of referendum voting paper". So clearly this is captured by the "Henry VIII" clause at clause 85. So what we've got is that the Minister can prescribe a form for any matter in relation to a referendum and it could hardly be clearer because clause 16 which talks about the form of a referendum voting paper has the word "form" and the word "referendum" in it. So the alignment is just about perfect that this is exactly what we're talking about.In that clause—the one that would apply to the Electoral Commission—what we see is that the Electoral Commission can make such a decision and can decide how the law is to be applied. So what we effectively have is a quasi-judicial function being carried out by the Electoral Commission that could be overridden by the executive part of the Government. That's at the heart of what it is to have a "Henry VIII" power. In constitutional terms that's—well it seems a little bit egregious. I don't know if you can have something that's a little bit egregious. What the hell it's egregious. And so that's something that we'd like the Minister to address for the record because just to be very clear that's something on which we are very unhappy about on this side of the Chamber.The other aspect which I'll touch on more quickly within Part 4 is the duty of the Electoral Commission at clause 84. What we see there is that "(1) If the Electoral Commission believes that a person has committed an offence under this Act [they] must report the facts on which that belief is based to the New Zealand Police." What we don't have then is any requirement that the Electoral Commission also notify the person concerned who may have committed an offence and the belief that the Electoral Commission has. So that seems problematic in the context of the principles of natural justice which have been long held to include that a person has the right to be heard.So with no opportunity to correct the record or perhaps negotiate a manner in which certain conduct could be reduced to below the threshold of an offence the Electoral Commission must as a first and only step according to this clause report the facts as they see them. Their belief as formed in their somewhat subjective opinion—and I don't mean that in any way to suggest that it would be improperly reached. But none the less it is a decision maker coming to a belief without recourse or reference to the person who has conducted or committed the apparent offence. That seems to me unfortunate at the very least for the reasons that I've described.So for that reason Part 4 is hardly able to be supported on this side of the Chamber. It's overbearing and unfortunate in its inability to allow proper participation."