Smith NickELECTORAL (INTEGRITY) AMENDMENT BILLInstruction to CommitteeHon Dr NICK SMITH (National—Nelson): I move That it be an instruction to the committee of the whole House on the Electoral (Integrity) Amendment Bill that it consider and if it thinks appropriate adopt amendments to the Electoral Act in my name making explicit the overriding provisions of the Parliamentary Privilege Act. Mr Speaker?SPEAKER: Well I don't need to call the member. He's got the call.Hon Dr NICK SMITH: I'm moving this motion so that when the committee comes to consider this bill it is able to give consideration to very serious issues that go to the core of the functioning of this Parliament. The Justice Committee did not give any consideration to the quite serious concerns from the Legislation Design and Advisory Committee from the New Zealand Law Society and from the Clerk of the House of Representatives about the contradictory provisions in this Electoral (Integrity) Amendment Bill and the provisions of the Parliamentary Privilege Act 2014. I would draw to your attention that the Parliamentary Privilege Act was passed unanimously by this Parliament in 2014. I particularly want to draw to the attention of the committee to section 23 of the Parliamentary Privilege Act—SPEAKER: Order! I'm now going to ask the member to refrain from debating the amendment. I think all we're talking about is whether we should have a debate or not; we are not having the substance of the debate. I was slightly diverted and I probably let the member go on for too long and I apologise.Hon Dr NICK SMITH: The two key issues that require the committee of the whole House to have this instruction resolve the core issue of contradiction around whether members of Parliament can be dismissed and the second core issue is in respect of what documents of the House of Representatives might be able to be considered in any judicial review proceedings. The reason that these issues of the interaction between the Parliamentary Privilege Act and this electoral bill are so important is that they go to the core of the New Zealand Bill of Rights Act compliance or non-compliance issues—a point that was made very strongly by the New Zealand Law Society and also by the Legislation Design and Advisory Committee. The concern of those three very serious bodies is that if we do not simultaneously make amendments to the Parliamentary Privilege Act we're going to end up with a complete pickle around the core legal issues of the rights of members of Parliament to stand in this House and to represent their communities.You see the issue is around whether these two Acts can be compatible without amendment. What the Legislation Design and Advisory Committee said to the select committee was that the uncertainties that would exist without clarifying these key issues about the rights of members of Parliament to sit in this House and what documents from this Parliament may be used in court procedures—unless we resolve those issues then the committee of the whole House cannot be at all sure about exactly what it is putting in law and what the rights are of members of this House. I would say to you Mr Speaker and to fellow members of the House that if we're going to go down this road of making very significant changes to the Electoral Act then we need to provide legal certainty. We need to be able to provide both members and Officers of this Parliament such as the Clerk and the courts of New Zealand with certainty about these very important questions that have been raised by those three submitters.Now I have tabled an amendment that cannot be considered in the committee stage unless this instruction is provided. Now is not the time to debate the merits of that amendment. What it is the time to do is to say that if Parliament is to do its job it needs to be able to consider these issues simultaneously and that we need to make sure that we have got a Parliamentary Privilege Act and an Electoral Act that are not contradictory and not creating confusion both for members of Parliament and the officers that serve in this House.It's appropriate that I directly quote what the Legislation Design and Advisory Committee said in this regard: We recommend the Bill be amended to ensure that the Parliamentary Privilege Act 2014 is not a barrier to the availability of judicial review as a remedy for [members of Parliament] who are removed under the [provisions of the Electoral (Integrity) Amendment Bill]." To make further the point that both they and the Law Society make the certificate that's been provided by the Attorney-General that this bill does comply with the New Zealand Bill of Rights Act depends very heavily on a member of Parliament being able to judicially review a decision that has involved their dismissal from this House. What the judicial advisory committee is saying is that that provision is in serious doubt if it is not possible for the key documents for such a judicial review to proceed. So for instance if there was an issue about whether a member of Parliament had voted what they'd said in this Chamber or what they had done in a select committee what the judicial advisory committee is saying to this House is that there is real confusion about whether any of those matters could be considered.The other issue that is raised by the Clerk of the House—and again I think it is valuable to read the exact words in their submission—is that "the freedom of speech privilege is one of the oldest and perhaps the most foundational [in its] statutory basis … established in Article 9 of the Bill of Rights 1688 [and it] was [unanimously] reaffirmed by Parliament in the Parliamentary Privilege Act 2014." It goes on to say that if the Electoral (Integrity) Amendment Bill is passed in its current form it brings into real doubt the provisions that were specifically provided for by this Parliament when it passed that Act back in 2014. Quite specifically the Clerk of the House recommends that we make the very sorts of amendments that the committee would not be able to consider unless this instruction to the committee is provided for.SPEAKER: OK. I have let the member run substantially for a long time on the substance of his amendment rather than on the question of whether we should consider it or not. In the remaining two minutes he will focus on the issue before the committee now.Hon Dr NICK SMITH: The important issue that the committee is considering with my motion is: will it be possible for members of this House during the committee stage to move amendments that relate to the Parliamentary Privilege Act? Now the advice that I've received from the Clerk is that it is possible to consider a very narrow amendment relating to the very specific provisions in the Electoral (Integrity) Amendment Bill but it is only possible to be able to make absolutely clear that the provisions of the Parliamentary Privilege Act 2014 carry the day with this instruction.Now I have tabled those amendments. They are consistent with the sort of advice we had at select committee as to how we could repair this legal defect in the Electoral (Integrity) Amendment Bill. I think it would be a serious error of this Parliament to go into its committee stage and not be able to consider all of the amendments to make this into a workable piece of legislation and address those concerns that I think all members of the committee would accept whether it be the Clerk of the House the New Zealand Law Society or the Legislation Design and Advisory Committee—that it would be negligent of this committee to ignore that advice and not consider this important issue of clarification particularly when we are talking about rights that go back 330 years and ensuring that the Parliament has clarity in this area through the instruction that National members believe we should provide to the committee."