Supreme Court Bill — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Speaker Recalled In Committee 
Supreme Court Bill — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Speaker Recalled In Committee 
[Volume:612;Page:8985] 
Supreme Court Bill 
Instruction to CommitteeCWH 
Hon MARGARET WILSON (Attorney-General) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Supreme Court Bill that it take the bill part by part and consider any schedules as one question. 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 68 
New Zealand Labour 52; Green Party 8; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
In Committee 
Clause 1 Title 
RICHARD WORTH (NZ National—Epsom) 
: 
 National is opposed to the Supreme Court Bill and that fact is widely known. In looking at the name of the bill we would be wise to reflect on what is implicit in those three words. We are talking about the abolition of the Privy Council a court of excellence that has served New Zealand well for many many years. We are also talking about ground-breaking constitutional legislation. We are talking about legislation that has been passed on the narrowest of margins. Indeed it seems that the margin may be as low as three votes. It may be less because there is some suggestion that some members of the Green Party are not wholly on the Government’s side in respect of this issue. They are not wholly on the Government’s side because they assert they are caring and committed on Maori issues and it is the strong voice of Maori that this legislation not be enacted. 
We are also talking as we look at this title about an asserted claim that the objective of the bill is to improve the accessibility of New Zealanders to justice. I was interested in an earlier interjection that the Privy Council was a court available only to the wealthy. That is the most foolish observation and unfortunately I cannot identify which speaker made that comment. However I would say that whilst assuredly the court is open to those who have wealth it is also available for those who can access it through legal aid and also those who are of moderate means. When this Government talks about access to justice that is one of the most hollow calls to arms we have yet seen from it. The Government has embarked on a range of initiatives that exactly counter that worthy proposition. Whether it is something like this whether it is a planned restructure of the courts which is the subject of work by the Law Commission or whether it is swingeing fees hikes in respect of court fees that is one thing this Government is not about—access to justice. 
I spoke in the context of the title of this bill being ground-breaking constitutional legislation. It is interesting to reflect that the last piece of significant constitutional legislation was in 1986 when the Constitution Act was passed. Can members guess how many members of this Parliament voted for that legislation? The answer is that every single member of Parliament voted for it which is a pretty amazing outcome one might think. That is why many have said that for legislation of this type it is not unreasonable that there be a substantial mandate—a substantial mandate in the order of 75 percent. In this case we are talking about a margin of three votes or lower. Indeed in 2001 the Attorney-General stated in an article published in the  
Independent 
 that it was absolutely critical there be maximum support from the business community. And what support is there from the business community for this bill? There is absolutely no support. In fact 75 percent of the people who fronted up to the Justice and Electoral Committee did not want this bill to pass. That is why I say that this is no day of pride for the New Zealand Parliament. This is a sad day. This is a day when the Government has broken with clear constitutional principle and has determined it will push this bill through in time frames that are not consistent with normal parliamentary process. Yesterday we had the second reading today we are in the Committee stage and it would not surprise me if tomorrow we are at the third reading stage. 
DAIL JONES (NZ First) 
: 
 If I were a member of Parliament in the Zimbabwe Parliament I would believe what is happening today. I believe that President Mugabe would ram through legislation of this kind to deprive the people of that country of the right to hearings at one of the best courts in the world free from any interference from local people. Now that is if I were in “Mugabeland” in Zimbabwe; but no I seem to be in “Helengrad”. I am in a place where there is little regard for constitutional principles and no regard for democracy because this minority Labour Government has no democratic right to have this bill passed through the House. It received no mandate from the general election last year. In fact the statistics for the Labour Party show that at the last election it received the lowest number of votes of those eligible to vote at a general election since 1935. It received about 31.9 percent of the votes of those entitled to vote at the election so this bill is going through with a mandate of about 31.9 percent of those entitled to vote at an election. That is from the Labour Party viewpoint. 
This bill should be called something like the “Pro-Mugabe Bill” or the “Breakdown of the Westminster System Bill”. It certainly is not a bill to which the people of New Zealand have given support. If the Labour Government thought the people of New Zealand supported this legislation it would have had a referendum. There is absolutely no doubt that if it thought the people of New Zealand supported this bill it would be out there with the very simple question: “Should we abolish the right of appeal to the Privy Council?”. There would have been a 1 or 2 year programme by the Prime Minister herself basking in the democratic glory of putting things to the people. 
More time has been spent on hui on the foreshore and seabed than on this legislation. This legislation has been pushed out the back door and rammed through this Parliament in the same way that one would expect Mugabe to ram legislation through. We have Supplementary Order Paper 151 before us with eight pages of stuff to be rammed through with this legislation. We barely have time to understand the legislation in so far as some members are concerned and now there are eight pages of a Supplementary Order Paper to try to fit into this bill. 
This Government has no regard for the people of New Zealand. This minority Labour Government with the support of about 31.9 percent of those eligible to vote in New Zealand is imposing its will on the people of this country despite the fact that the vast majority of people making submissions to the select committee said they did not want this legislation. This is a sad day for democracy in New Zealand. Really it is a sad day for democracy—that is the key to this legislation. The bill itself is almost irrelevant in that sense. This is a very very sad day for democracy for proper constitutional Government and for the operation of the Westminster system in New Zealand. 
If the Labour Government is not frightened of the result of a referendum then why is it not having a referendum? It is as simple as that. There is nothing to be lost by spending another year or two on putting this through the referendum process; but no this Labour Government wants to ram this bill through the House probably by the weekend. It knows that some members of the Green Party are looking at this matter very carefully and very clearly and that they might possibly change their minds next week because their voters will have got hold of them and said: “No think about it.” Over the weekend Green Party members might change their minds and that is why this Labour Government insists on ramming this legislation through the House now. 
The last time I spoke on a bill like this was with Sir Robert Muldoon and I as a National Party member voted against him. I crossed the floor with Derek Quigley and Ruth Richardson because the matter was totally wrong and the way it was being handled was totally wrong. 
 If those seven Maori Labour Party members had any concern for their people they would vote against this bill. Instead we have Huka Ma me nga whena e whitu—Snow White and the seven dwarfs. That is who we have in the Labour Party. The Maori members are seven dwarfs who have been cut down in their prime—if they ever had one—and who have no concern for the Maori people of New Zealand. In fact this bill should be called the “Snow White and the Seven Dwarfs Bill” because that is all we have from those Maori members. Mita Ririnui could not even finish his speech on the second reading last night. He spoke for about 4½ minutes and did not come back from dinner to finish his speech. He was too busy filling his stomach to finish speaking on the bill. 
JILL PETTIS (NZ Labour—Whanganui) 
: 
 I raise a point of order Madam Chairperson. I did not interrupt the member because he has 5 minutes only but the phrase he was using has already been ruled out of order. I ask that he stand withdraw and apologise. 
DAIL JONES (NZ First) 
: 
 The phrase has not been ruled out of order. 
Jill Pettis 
: Yes it has. 
DAIL JONES 
: If the member wants to speak while I am speaking to the point of order she might be in trouble. The word “dwarf” has been ruled out of order not the phrase “Snow White and the seven dwarfs”. This is Parliament. We have a democratic system the Westminster system which has free speech. Are we to be told by you Madam Chair not only that we are to have the Privy Council removed but that free speech during this debate will go as well? It is a very simple apt description of the seven Maori members of the Labour Party. Their attitude is that of dwarfs and their leader may be called “Snow White”. It is a very appropriate summation of how the Maori people are being served by their seven dwarfs. 
The CHAIRPERSON (Ann Hartley) 
: The member is not correct. It has been ruled out of order. When the member refers to other members he must refer to them by their proper names. 
STEPHEN FRANKS (ACT NZ) 
: 
 I am seeking guidance. When a member is referred to as a “dwarf” or by some other pejorative— 
The CHAIRPERSON (Ann Hartley) 
: Is the member speaking on the point of order? 
STEPHEN FRANKS 
: Yes. 
The CHAIRPERSON (Ann Hartley) 
: I have ruled on that point of order. 
STEPHEN FRANKS 
: It is supplementary to that point of order. I ask whether the ruling on the point of order means that one cannot say “they are like” or “the story is relevant” or use the word as a metaphor without actually calling members dwarfs. It seems to me that it is far too wide. If it is ruled out as a metaphor it is far wider than the parliamentary rules against abuse require. 
The CHAIRPERSON (Ann Hartley) 
: The Speaker ruled that when members refer to other members they refer to them by their name. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 It will be a sad day for New Zealand when this bill passes into law. I am pleased that there are three Maori members here in the Chamber because they are presiding over a bill that their people—their voters—have not approved. I know that those members do this at a cost. They will rue the day that they ignored the wishes of the Maori people and presided over a bill that takes away access to the Privy Council something that this country has had the benefit of since 1841. It will be a sad day for New Zealand and for democracy when this bill passes into law as the Supreme Court Act. This is a sad day for democracy. In that regard I totally support what Dail Jones said because this legislation will pass into law without a mandate from the New Zealand people and without the mandate of this Parliament. 
The members on the Government side of the Chamber keep referring back to what happened in the 1990s when a similar bill was first presented. It was withdrawn because there was insufficient support in the House for it. 
The CHAIRPERSON (Ann Hartley) 
: I am sorry to interrupt the member but she needs to speak on the title. 
Hon GEORGINA TE HEUHEU 
: Absolutely. I am on the title Madam Chair. If you had been listening to my speech you would have heard me talking about the Supreme Court Bill but I will address the title more closely. 
This bill should be called the “First Steps to a Socialist Republic Bill”. That is what it should be called because that is the agenda of the Attorney-General Margaret Wilson. That process started when this Government came into power. It removed the royal honours system and is to change the title of Queen’s Counsel to Senior Counsel. I have noted that there have been no appointments to the Privy Council in terms of members of this House. Senior members of the House are entitled to have “the Rt Hon” as part of their titles but those things are all going. This legislation is the next major step in the Attorney-General’s agenda of turning this country into a socialist republic. This bill should be called the “First Steps to a Socialist Republic Bill” because at the end of the day what someone like the Attorney-General wants is to leave her mark—a mark that nobody in New Zealand wants. She may say that she has some support for her agenda but she has no support whatsoever for it. 
This bill is not aptly named. It would be more honest if the title included a description of socialist republicanism because that is what it contains. One day New Zealand may move to become a republic but it will make that move because the New Zealand public want it not because Margaret Wilson has an agenda for it and not because seven Maori MPs are sitting on the Government side of the Chamber enjoying the fruits of power supporting Margaret Wilson and not listening to their constituents. 
Jill Pettis 
: Oh you’re just jealous. 
Hon GEORGINA TE HEUHEU 
: Who is jealous of that? Jill Pettis should get a life. I could not care less about those trappings and nor should she. 
The Maori members should do the job they came here to do. They are in power because of the Maori vote yet they have totally ignored the Maori objections to this bill. They have treated them as if there were no credence to the arguments put by Maori. I have not heard any of those members answer the submitters on this bill directly person to person. I have not heard any of them address Sir Tipene O’Regan Api Mahuika the Federation of Maori Authorities or any of the submissions that were properly put and validly made. That is why this bill is so wrongly titled and should be titled the “First Steps to a Socialist Republic Bill”. The Government wants us to be all the same. 
John Tamihere’s comment earlier on said it all when he said: “Only for the rich”. It is that old socialist chip on the shoulder “cannot stand people who are successful” attitude. That is how that Minister characterises this bill. Basically he said the Privy Council is for the rich only. That is how far off the mark he is and that Government is. As I say it will be a sad day for this country when this bill passes into law. It will be a sad day for democracy when it passes into law because there is no mandate for it. 
STEPHEN FRANKS (ACT NZ) 
: 
 The debate on the title of the Supreme Court Bill has attracted jibes from Government members across the Chamber that those opposed to the Privy Council are standing for the rich and powerful. The Privy Council has stood up more often against powerful interests in this country than any other separate court as far as I can see. 
The Privy Council I say to the Minister in the chair Mr Tamihere stood up for Maori in 1901 and stated that the Court of Appeal was wrong in 1877. The Privy Council stood up for taxpayers against the oil companies 12 years ago when it stated that our Court of Appeal had been far too solicitous and careful about offending oil companies when the oil companies were trying to claim that the Government could not retain the rights to petroleum prospecting in contiguous blocks. The Privy Council stood up for 2000 offenders who had been denied natural justice by the Court of Appeal— 
Dail Jones 
: And legal aid. 
STEPHEN FRANKS 
: —and legal aid. It stood up for a Samoan overstayer who was claiming New Zealand citizenship against the might of the Government. 
The CHAIRPERSON (Ann Hartley) 
: The member needs to refer to the title; that is what is being debated. 
STEPHEN FRANKS 
: I am leading to the title. I am responding to the sole argument we have had from the Government side of the Chamber against the Opposition speakers who have been debating the title. 
This bill might perhaps have been called the “New Supreme Court Bill”. When I started practising law the Supreme Court was subject to the Court of Appeal. That was bizarre; it was an odd way for the Supreme Court to be described. Its name was changed to the High Court and that was more logical. But now we have legislation that sets up a court to be called the Supreme Court and it will probably start with less public respect than a court was ever started with in this country. This court will be born in controversy. The so-called Supreme Court will be born in the midst of a campaign for signatures to a referendum to end it. The court will have no mandate. To give the Supreme Court that name in a situation where the people will be reposing in it the least confidence they have ever managed to repose in a court is a constitutional tragedy. This court will not be seen as supreme but as subject to the whims of a tiny socialist academic establishment that controls the Labour Party. 
This bill is a “trash the constitution” piece of legislation. The Attorney-General Margaret Wilson is reported in today’s  
New Zealand Herald  
as saying when asked why this proposal is going ahead without a broad consensus “That’s just the way we do it. New Zealand has this wonderful fluid constitutional arrangement.” So we are setting up a court intended to be our supreme court and to carry all the moral authority of New Zealanders looking for independent judgement and a level of dispute resolution that cannot be impugned as being subject to any kind of unfortunate influence. This legislation sets that court up in an environment where a good number of decent New Zealanders fear that a stacked court is being set up. A cosy academic cabal wants to make sure they can have in our top court only folk who feel and think like them. 
This is a court that is being established to do what Lee Kuan Yew’s Government did when Singapore got rid of the right of recourse to its supreme court. I heard members of the Government jeering at that—jeering at our concerns as being concerns for the rich. That is not what the sole representative of the Workers Party in Singapore thought when the right of appeal to the Privy Council went so that Lee Kuan Yew and the Singaporean Government would no longer be embarrassed by the Privy Council overturning its tactical defamation writs designed to quash independent politics in Singapore. The Singaporean Opposition small and feeble though it may be did not see the Privy Council as a colonial relic; it saw it as a defender of independence. It saw it as a defender of the reputation of the judiciary in Singapore and as being genuinely impartial in its judgments. Yet the Opposition members in this Chamber scoff and say the Privy Council is a rich person’s court. 
Hon TONY RYALL (NZ National—Bay of Plenty) 
: 
 I would like to take a call to alert members of the Committee to the fact that there should be an amendment to the title of this legislation. The titles of bills should in fact convey to the reader and the public the essence and substance of what is proposed by the legislation. This bill goes far beyond setting up a Supreme Court in New Zealand and I say to members that the title should be amended to reflect that. 
First of all this bill is not about ending the right of appeal to the Judicial Committee of the Privy Council. It is about denying New Zealanders the right of appeal to the Privy Council. That should be reflected in the title of this legislation. It is a denial because the vast majority of New Zealanders have not had the opportunity to have a say on the major constitutional change that is incorporated in this bill. That is why the title should alert the people of New Zealand to the fact that their right of appeal to one of the most esteemed judicial authorities is being denied by the Government. There are many people in this Parliament who think that eventually that right of appeal should be denied but I do not think the Attorney-General deserves the trust of this House or of the people in promoting that sort of denial of an appeal right. That is why I have moved a couple of amendments to this bill. 
I will certainly support the amendment moved by the former senior partner in one of New Zealand’s leading law firms Richard Worth the National Party member for Epsom who also wants to move changes to the title of this bill. When we have one of the senior commercial lawyers in New Zealand standing up in this Chamber—this is not a university professor who has talked to 21-year-olds; this is a man who has been at the leading edge of commercial law in this country—and saying that this title does not reflect the will of the Parliament let alone that of the people I think he should be listened to. Mr Worth with his years of experience in practical law as it affects real businesses and real people is saying that this bill is not just about a Supreme Court in New Zealand but about denying the right of New Zealanders to go to the Privy Council. That right is being denied by an Attorney-General who has absolutely no right to foist that sort of change on New Zealand because she has not earned the respect of the New Zealand public or of this Parliament that would entitle her to make those sorts of changes. 
This legislation is all about this Government’s hell-bent desire to wreak constitutional change on this country by means of a majority of three votes. There is no moral authority to support any constitutional change by means of three votes—by one party that does not have one elected constituency member giving them those votes. Not one electorate has endorsed the Green Party. So what authority does that party have to vote with this left-leaning rabble to pass a constitutional change that the title of this bill does not fairly reflect? There is absolutely no authority for the Government to make a change by three votes and this change is being promoted by an Attorney-General who has not earned the right to lead any constitutional change in this country. That is why we have amendments. 
As I said when we have Richard Worth the MP for Epsom standing up and saying on the basis of his years of experience of dealing with commercial litigation and contracting in this country that this change is bad for New Zealand and that this title does not reflect what is in this bill then the Attorney-General should listen to what he has to say. I say to the Labour Party that this constitutional change should not be brought about without the overwhelming endorsement of the people of New Zealand and not without the overwhelming endorsement of at least three-quarters of this House. There is no support in this House for this change. The majority of constituency-based parties in this Parliament are not in favour of this legislation. This Government is relying on a list party to support it. That is not moral when making a constitutional change. 
The CHAIRPERSON (Ann Hartley) 
: I call the Rt Hon Winston Peters. 
GERRY BROWNLEE (NZ National—Ilam) 
: 
 I raise a point of order Madam Chairperson. Firstly the Standing Orders are relatively clear and give guidance not only to members of Parliament but also presumably to presiding officers. The Standing Orders suggest that members from a party should be called in order of their seniority. I noticed that that has not been observed this afternoon but I have been quiet about that. Secondly I point out that a number of people have been seeking the call for a long period of time. While I do not in any way dispute the seniority of the Rt Hon Winston Peters I suggest that in fairness to those members who have contributed to the debate and put time into this legislation this afternoon they should be given a slot a little sooner than someone who has just turned up in the Chamber. 
The CHAIRPERSON (Ann Hartley) 
: The call has been given correctly to the Rt Hon Winston Peters. I ask him to please begin his speech. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 Can I just say for a start that I heard John Tamihere’s comment that the Privy Council was for the rich. Of course people who have never practised law or who have had their certificate of practice withdrawn or who have jumped before they were pushed—as he was—would come to that view. He said that he does not lie and defraud people. [ 
Interruption 
] No I do not but he does. Forging and uttering are serious criminal offences—as is being five times drunk-in-charge. That is a serious criminal background. If Mr Tamihere wants to say what he said about me he should say it here then go outside the House and say it again—whereupon he will find himself in the courts so fast that his feet will not touch the ground. 
The first thing I want to say is that if that is true how come I went to the Privy Council against the rich and famous against people who were given knighthoods by the Labour Party—the Fay Richwhite and European Pacific connection—because they gave the Labour Party millions of dollars in 1987? It was payback time and they lost—“We won; eat that!”. 
The second thing I want to say is that this bill should not be titled the Supreme Court Bill; it should be called the “Whakama (Kia Kaha te Republic) Bill” or the “Whakama (Up the Public Even Though It Is Bad for Maori Interests) Bill or the “Snow White and the Seven Dwarfs Bill”. This bill should be called the “Snow White and the Seven Dwarfs Bill”. Here we have seven Maori members in seven Maori seats. There has to be a multiple franchise they say—since 1867—because they represent like no others in this Parliament the narrow particular Maori voice. 
Dail Jones 
: That’s what they say. 
Rt Hon WINSTON PETERS 
: Well we are still waiting to hear it. They represent unlike anybody else the peculiar particular special Maori voice in this Parliament. So let us hear it. There is not a sound not a murmur not a syllable not a mutter from them—total silence. They have been amongst their leadership around all the iwi and no one in Maoridom supports this bill. And what do those narrow particular special-interest groups in this House represented by the Maori seats say? There is utter silence from them—not a syllable not a sound not a mutter not a murmur. Back in the time of Pomare in the time of Buck and Ngata no one ever asked the question: “What good are the Maori seats?” because then Maori had a special voice and everyone respected it. It was profound and strong and it was great for this country. So where is the Maori voice today from Labour? It is gone. Not a word— 
Hon Georgina te Heuheu 
: Silence. 
Rt Hon WINSTON PETERS 
: Totally whakama! They are too tired or too shy to speak for their people. As for the claim of the Prime Minister and Margaret Wilson that they have a mandate for this bill because it was in their manifesto I ask whether Labour won the last election. 
Gerry Brownlee 
: No. 
Rt Hon WINSTON PETERS 
: Dramatically they failed. Did the Progressives after seven name changes help them win an election? No. They were still a minority. Members should listen and learn. Is this promise in the Green manifesto? No it is not. If it were in the manifesto it might give Green members the colour of right to say they have some sort of mandate but they do not. Nandor Tanczos said that they the Greens would listen to the voice of Maori but then he thought that getting rid of drug charges in respect of marijuana—the Clean Slate Bill—was more important. Out there in Maoridom any Maori thinking of voting for the Greens should think long and hard about first the destruction of Maoridom through marijuana and secondly the compromise he made with Helen Clark to pass this bill. 
The Minister in the chair Margaret Wilson has no mandate whatsoever. She will be gone from New Zealand politics at the end of the next election—of that I am sure. She will be a list member and no list member will make it—not from that party. It is the ultimate in arrogance for members ever to think they are in terms of what they do so popular that they can leave their stamp on this country regardless and let others pay the price and pick up the consequences. Well we make it very clear that—short title or no short title—when we are back in Government we will repeal this legislation. If we are to have constitutional change in this country it will be done by people who have the authority of the people of this country. 
GERRY BROWNLEE (NZ National—Ilam) 
: 
 This bill should be renamed. It should be referred to as the “Supreme Betrayal of Justice Bill” because quite clearly that is what it is. We have a Prime Minister who comes into the House and tells us—today in fact—that our constitution is made up of several arms several documents and a range of rights and entitlements that New Zealanders expect. One of those most definitely is the right to be heard fairly by a court the right to take an appeal to higher authorities and the right—one that I would have thought all New Zealanders currently claim—to go to the Judicial Committee of the Privy Council. If that right is a constitutional right then surely overturning it has to take more than just three MPs who have done a dark deal with the Government to get some of their own sad legislation through the House. 
I am not going to refer to the Maori MPs in the Labour Party as the “Seven Dwarfs”. That would be unfair and I believe the Chair would probably say somewhat unparliamentary. But they have most definitely shown themselves to be the seven little gnomes at the bottom of Helen Clark’s garden and like gnomes made of concrete they apparently have no ability to speak. 
The CHAIRPERSON (Ann Hartley) 
: The member will please be seated. I just remind members again: “Members may not be addressed by nicknames first names and so on. They should be addressed by their proper name or by the position or portfolio they hold.” 
Rt Hon Winston Peters 
: I raise a point of order Madam Chairperson I have heard your judgment and with respect if it were to stand you would destroy the debating chamber because what was said was said by way of analogy. I have heard all sorts of analogies in the House and the House is the better for them because they better describe the circumstance. I have heard analogy used on both sides of the House. For instance today I heard somebody referred to as “Wiremu Pakeha”. The person’s name is Bill English. Who protested about that? No one did because the colour and flavour of this Parliament is assisted by such analogies. With respect I think you are drawing a far too narrow proscription. It is usually when the words are offensive such as if someone were to say that someone was like Goebbels—that would be offensive—that they are ruled out. But who could possibly object to likening someone—such as the Minister in the chair Margaret Wilson—to Rose Red? I am not trying to be difficult about it Madam Chair but I think your decision is far too narrow and with respect I never did withdraw that statement that day. I left the House and was never asked to withdraw it. That is a fact. If you go back over the  
Hansard 
 
you will find that is the truth. I got sent out of the House but I did not have to withdraw the statement. 
The CHAIRPERSON (Ann Hartley) 
: Certainly it is my clear understanding that the Speaker ruled it out and we do have Speaker’s ruling 6/1 (Supplement) which I spoke to. I take the member’s point about being too precious if one likes about certain rulings but the reference in question was certainly seen as being derogatory and was ruled out. 
GERRY BROWNLEE 
: I raise a point of order Madam Chairperson. I seek clarification from you. Are you now saying that referring to members as gnomes is ruled out? 
The CHAIRPERSON (Ann Hartley) 
: No I am not saying that at all; what I am saying is that its use in the context in which it was used when the Speaker ruled on it was clearly ruled out as being offensive in respect of members. It was clearly ruled that members should be referred to by their correct names not by nicknames. That ruling was very clearly given. 
Richard Worth 
: I raise a point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: No I have ruled on that matter. 
Richard Worth 
: It is a separate point of order and it is a point of clarification. Are you saying that we are not now allowed to say “and these members remind me of Snow White and the Seven Dwarfs”? Are you saying that you are ruling out “and these members can properly be said to have the characteristics of Snow White and the Seven Dwarfs”? Are you ruling out these members being called “Snow White and the Seven Dwarfs”? Are all those terms now on the new proscribed list? 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. I just remind members again that while points of order are being heard there will be silence. No I am not ruling that at all. What I am ruling is the Speaker’s ruling that was given and the context in which it was given that day and the respect that members are due in terms of their names and their nicknames. That has been ruled on many times. 
GERRY BROWNLEE 
: I raise a point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: No I have ruled on this point of order. 
GERRY BROWNLEE 
: Yes I know and I am going to uphold you. My point relates but it is not a challenge to you at all. 
The CHAIRPERSON (Ann Hartley) 
: Mr Brownlee please be seated. There is no need for points of clarification when I have ruled on a point of order. If it is a new point of order yes. 
GERRY BROWNLEE 
: I thank you for your ruling. It is going to make debating in the House most interesting. I wonder whether you would now be prepared as Deputy Speaker to call the Hon Trevor Mallard back to the House and demand that he apologise for his atrocious breach earlier this afternoon of your new ruling when he referred to Bill English as “Wiremu Pakeha”. 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. As the member well knows I am ruling on a point of order as has been ruled now. It is not my duty or position to rule on anything that is past. 
Rt Hon Winston Peters 
: I raise a point of order Madam Chairperson. With respect if you are going to make a judgment that narrow then I think we should recall the Speaker. 
The CHAIRPERSON (Ann Hartley) 
: Mr Peters are you speaking to the same point of order? 
Rt Hon Winston Peters 
: No I am raising a new point of order. There was a famous example in the British Parliament two centuries ago where a famous leader referred to his opponents as resembling nothing so much as a group of extinct volcanoes. At the end of the day if we come to the sort of judgment that you have just made then this Parliament will be the joke of Western democracies. Members will not be able to say anything of any colour or any flavour; they will not be able to use any analogies. It will always be “the honourable member this” or by his or her name. I do not think Mr Hunt had that in his mind and I do not think you have it in your mind either but that is the consequence. The next time someone on the Government side or the Opposition side hears something slightly unfavourable by way of analogy up he or she will jump and use your judgment as a precedent. I say that perhaps you would like to think about that before you come down with such a narrow judgment this afternoon. If any of my colleagues in this House think that I was referring to them when I used that famous fairy tale analogy then he or she should have risen and opposed it but they did not. Not one did—that is the point. Why are we rushing to defend others who find that robust debate which is to be found on the marae of this country cannot be used in New Zealand? More particularly the Maori members know full well that that is how Maori talk—by way of analogy and illustration. Besides which I hate to say it but sometimes people do not respond because the glove fits. 
The CHAIRPERSON (Ann Hartley) 
: I thank the member for the points he has made. [ 
Interruption 
] Please be seated. This matter has been dealt with. I am going to move on. I call Mr Brownlee. 
John Carter 
: I raise a point of order Madam Chairperson. I have been listening quietly to the debate because I think members are now expressing concern at the standard we are setting which will be quite difficult for us to keep. I wonder whether it might not be better to ask you before you make a final ruling on the matter either to reflect on it or alternatively to call back the Speaker to get a view from him on the matter. I am worried. There are times when members in the heat of debate make a comment that can be quite humorous but under this ruling the member concerned may well have to withdraw and apologise because he or she is outside the ruling. Of course we want to keep standards and of course we ought to but there are times when there is some humour and some giveaway lines that we all chuckle at—even the recipient often—and it flows across the House. I wonder whether we might be strapping ourselves down a little bit tightly. Rather than make a definitive ruling now on this particular issue I suggest that you might want to reflect a little and give us a ruling a little later on some parameters around it just so that we can still have some humour while we go through some of these debates as we have done in the past. 
The CHAIRPERSON (Ann Hartley) 
: I certainly take the member’s point that we certainly do not want to curb vigorous debate humour and everything else. This matter has been ruled on. 
GERRY BROWNLEE 
: I raise a point of order Madam Chairperson. I just want to be clear. The  
Hansard 
 record will show that what I actually said was that the Maori members reminded me of “gnomes at the bottom of Helen Clark’s garden”. Am I unable to say that? 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. The matter has been ruled on. Please continue your speech. 
GERRY BROWNLEE 
: I raise a point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. It is the context in which it is said and that is how I judged the matter. 
GERRY BROWNLEE 
: Well I do not understand it. 
The CHAIRPERSON (Ann Hartley) 
: Mr Brownlee please continue your speech. I have ruled on the matter. 
GERRY BROWNLEE 
: I have somewhat lost my thread I must say and I think that is very unfair. I raise a point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: Mr Brownlee is raising a point of order. I just remind members again that there will be silence during points of order. 
GERRY BROWNLEE 
: I move  
That the Speaker be recalled.  
Members require a more definitive position on this matter. I am sorry but the whole thread of what I was saying has been lost in all of this. Further I think the suggestion that a ruling given on a day when there was a degree of acrimony around a certain statement should then be related to another description that hardly fits I think and was certainly not an intended political insult leaves us in a difficult position. I have moved that the Speaker be recalled. 
The CHAIRPERSON (Ann Hartley) 
: It is not a debatable motion. 
Motion agreed to and House resumed. 
Speaker Recalled 
The CHAIRPERSON (Ann Hartley) 
: Members have concern about a ruling that I have given on how members should be addressed. This has been referred to three times in recent speeches. Members are concerned that my ruling is too rigid and that it does not allow for robust debate and humour. 
GERRY BROWNLEE (NZ National—Ilam) 
: 
 Mr Speaker I did not call you back lightly or for any reason other than just to getclarification on this matter. I listened to the general debate this afternoon and it was a vigorous debate. I think it was one of those occasions when we see parliamentarians cut loose and they say the things they are thinking. I personally was described in all sorts of different ways during that debate as were numerous colleagues on this side of the House. There were accusations made about the motives that some of us may or may not have. In those accusations there were descriptions of personalities as well and the  
Hansard 
 record will show that very clearly. 
 In the course of this afternoon we have had a little bit of trouble around this term “Snow White and the Seven Dwarfs” being applied to the seven Maori MPs from across the Chamber. I do not believe that in any of those circumstances it was meant as a derogatory term. It was meant as a bit of provocation to get them to speak. Provocations to get members on their feet to declare a position are surely part of the debate that one would expect in a Parliament. I chose not to use that descriptive but rather said that the Maori MPs reminded me of seven gnomes at the bottom of Helen Clark’s garden that were made of concrete and seemingly unable to speak. I do not think that was a personal comment on any one of them. It was a reference to the fact that in this bill there are issues that are of concern to the wider Maori community and there is an expectation that those concerns would be represented by those members or if they cannot be represented that there would be at least some explanation from those members as to why they cannot represent that view. The real underlying point here— 
Mr SPEAKER 
: Would the member please come to the point of order quickly? I am ready to rule. 
GERRY BROWNLEE 
: The real underlying point is that if we are to be constrained simply to a formal style of address from one member of Parliament to the other then this House is most likely to lose a considerable amount of colour. The thick skins that we are all known to have will become incredibly thin and the quality of the work that we do in here would suffer. 
Mr SPEAKER 
: I have no difficulty in ruling about this at all and I do not need any further assistance. I refer members to Speaker’s ruling 6/1 (Supplement) which states: “Members may not be addressed by nicknames first names and so on. They should be addressed by their proper name or by the position or portfolio they hold.” There are no exceptions. I was present during the whole of the general debate today. It was a vigorous debate and so it should be. That is the whole point of a general debate. But members are not to be referred to in terms such as gnomes or dwarfs. They are members or honourable members and that is the end of the matter. 
DAIL JONES (Junior Whip—NZ First) 
: 
 I raise a point of order Mr Speaker. 
Mr SPEAKER 
: There is very little to rule on. 
DAIL JONES 
: Could we just take it to the next step? Are we entitled to say that members have the characteristics of Snow White and the Seven Dwarfs and that their behaviour may be like that of Snow White and the Seven Dwarfs? 
Mr SPEAKER 
: The member will please be seated. I have given a specific ruling and I will not go into hypotheses. Members must be referred to as members or honourable members. There are lots of ways that they can be accused of not entering into a debate—all the types of things that are made. I am sure there is a great deal of skill that a lot of members have in this regard. 
JOHN CARTER (Senior Whip—NZ National) 
: 
 I raise a point of order Mr Speaker. It is by way of clarification because it is well known as you say that we cannot individually name somebody other than to call him or her by his or her proper title. How do we get on in the case where it is a general reference over several members? I do not know whether we have a specific ruling and that is the issue that has come up—to describe a collective if one likes in a way that is a bit humorous and a bit of fun. One of the things that we try to encourage in this House is to have a smile every now and again because it is a rare event. It would be unfortunate indeed if we got to the stage where we had a ruling that actually curbed our ability rare as it is to inject a little bit of humour from time to time. That is really the issue that concerns me. I wonder whether you might give us a little guidance on that aspect. 
Mr SPEAKER 
: Yes I will. I can remember when I was a student and came down here in 1959 to listen to a debate where the Government of the day was referred to as “Ali Baba and the Forty Thieves”. Of course that was out of order and was ruled as such by the then Speaker in 1959. Until 1995 the rule was even more stringent—that is only electorates could be used. With MMP for collective terms the rule is Standing Order 117 which states there must be no personal reflections. It is within the bounds of the wit and intelligence of members here to say what they want to say without having to refer to that sort of comment and I do not want that any further. I do not need any further assistance. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 I raise a point of order Mr Speaker. I will just give you an illustration. By your ruling I do not think that Dr Cullen would be able to make a speech. To be fair to him he makes pretty colourful speeches. They are valuable in terms of the parliamentary atmosphere and it would be very regrettable if that had to stop. I do not think David Lange would have been able to make any speeches at all if that ruling had stood. For example the comment: “Someone puts me in mind of nothing so much as a ventriloquist’s dummy.” might be a bit close to the mark but the point is capably made. There is a big difference between humour irony and analogy and a straight-out vicious remark that is a reflection on someone’s personality. It is a given in politics that members can have a rather less than flattering view of their opponents. A famous American said that his opponent put him in mind of nobody so much as Abraham Lincoln if one can imagine a short fat dishonest Abraham Lincoln. That is probably going a bit far in this Parliament but we have to be very careful about this rule; otherwise I will have to find myself a new occupation. 
Mr SPEAKER 
: The member will not have to do that because as one of the most able members in this House he is well able to use his vocabulary and language so that he does not have to. The fact that he is able to speak demonstrates that the ruling is not restrictive. But I say to members that I have ruled that term out and that term is ruled out. If I am called back again I will be tempted to ask people to leave the Chamber. I have made a ruling and that is it. 
STEPHEN FRANKS (ACT NZ) 
: 
 I raise a point of order Mr Speaker. 
Mr SPEAKER 
: I do not think there is anything extra to say. It had better be new. 
STEPHEN FRANKS 
: I have listened to get guidance because if when you have gone the Chair takes the ruling as meaning effectively that those words may not be used because they are unparliamentary I do not think that is what you intend by your ruling. For instance I believe that within the spirit and the words of the rule it is quite permissible to say: “I am reminded of Snow White and the Seven Dwarfs. I wonder who the wicked queen is. Which one is Snow White?”. That is creating an analogy and painting a word picture. It is not in terms of the rule addressing a member. It is a shorthand way of forming an image and I believe that you do not intend to rule that out. 
Mr SPEAKER 
: No I do not. I have said that if members have the wit the humour and the intelligence of course they can do that but they cannot specifically refer to members other than by their name or their rank. 
In Committee 
Debate resumed. 
Clause 1 Title ( 
continued 
)  
GERRY BROWNLEE (NZ National—Ilam) 
: 
 Goodness knows how we will get on tonight when we come to the “Gnome Bill”! However let me just say to those Maori members over there that we hear so often from them about reference to the principles of the Treaty of Waitangi. Well one of the key principles of the treaty must be the reference that all of us have to stand before the courts as equals. No doubt when that treaty was signed and intentions were there those people who signed understood that one of those principles meant the right to appeal directly to the Crown via the legal committee of the Privy Council. For those members to come into this House and have no view about why that is being changed to sit mute and not represent the views of the Maori people who do not want this bill to go through and to sit mute and not even say why they have decided to vote against those whom they are here to represent is quite unacceptable. It leads to a suggestion that there is a degree of muzzle on that faction within the Labour caucus. 
Further where are the Labour Party lawyers who are experts in this field? Not the law professor not the various people with legal degrees who have never practised but where is Russell Fairbrother? Why is he not part of this debate? The Opposition has put forward speakers who are well experienced in the law people who have been to the Privy Council and people who understand the value of going to the Privy Council. The Opposition has made a case for this title to fall over. The Government has not adequately said what is so good about it. 
 I want to ask a final question. If this bill is to stand and appeals to the Privy Council are to go why does Helen Clark not relinquish her “Rt Hon” title? Why does Helen Clark not say: “I no longer want to be referred to as the Rt Hon Helen Clark Prime Minister of New Zealand member of the Queen’s Privy Council. I simply want to be Helen Clark potential leader of the Republic of New Zealand.”? Because that is what we are heading for. 
MAHARA OKEROA (NZ Labour—Te Tai Tonga) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 62 
New Zealand Labour 52; Green Party 8; Progressive 2. 
Noes 56 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Motion agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 1 be agreed to: 
to omit the words “Supreme Court Act 2002” and substitute the words “Repeal of Privy Council Appeals Act 2003”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Noes 62 
New Zealand Labour 52; Green Party 8; Progressive 2. 
Amendment not agreed to. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Madam Chairperson. I do not think that you put that amendment correctly and I do not think that it has been appropriately identified. When you identified the amendment you did not refer in fact to what the planned change was. The planned change as I have it is the “Supreme Court and Repeal of Appeals to the Privy Council Act 2003”. You did not put that. 
The CHAIRPERSON (Ann Hartley) 
: We have three amendments. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 1 be agreed to: 
to omit the words “Supreme Court Act 2002” and substitute the words “Supreme Court and Repeal of Appeals to the Privy Council Act 2003”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 70 
New Zealand Labour 52; Green Party 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Richard Worth to clause 1 be agreed to: 
to omit the words “Supreme Court Act 2002” and substitute the words “Abolition of the Right of Appeal to the Judicial Committee of the Privy Council Bill”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 70 
New Zealand Labour 52; Green Party 8; United Future 8; Progressive 2. 
Amendment not agreed to. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 62 
New Zealand Labour 52; Green Party 8; Progressive 2. 
Noes 56 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Clause 1 agreed to. 
Part 1 Supreme Court of New Zealand 
DAIL JONES (NZ First) 
: 
 This part sets out the purpose amongst many other things but I believe that that purpose is not clearly set out. The hidden purpose of this legislation is to turn New Zealand into a republic. That is one of the many steps that this Labour Party—this minority Labour Government—is taking in order to change New Zealand’s way of life. If this bill can proceed through this Committee on a vote of about 62 to 56 on a regular basis what will it take to change New Zealand into a republic? Will there be another bill next week once again supported by the Greens on a 62 to 56 basis? We could have a republic this time next year by the way this bill is proceeding. We have so many things being done by this Labour Party to move towards a republic: the abolition of Queen’s Counsel the abolition of rights of appeal to the Privy Council and the many measures being taken without the approval of the New Zealand public. With the support of only about 31.9 percent of those eligible to vote at the last election the minority Labour Government is ramming this bill through the House. 
Again what is the purpose of this bill? The purpose of this bill is so that the Greens can have the benefit of Nandor Tanczos’ Clean Slate Bill transposed into a Government bill whereby all those people who have been convicted of smoking marijuana over the years can have those convictions silenced—not overturned but silenced. Those people will no longer have convictions in New Zealand for marijuana use if they have had no other convictions of that type in the last 10 years. That is one of the purposes of this bill. The Government says that it is against cannabis smoking and such like but the Government is doing a deal with the Greens to support all those people who have been smoking cannabis over all those years and to support Nandor Tanczos’ Clean Slate Bill. That is one of the hidden purposes behind this bill. 
That deal has been done with the Greens to get this Supreme Court Bill through this Parliament. It is absolutely atrocious that that is the sort of level to which this minority Labour Government will sink and it is the level to which the Greens have always aspired. When Keith Locke next speaks in this Parliament about the rights of the individual and about the protection of the individual—a person such as Mr Zaoui—he knows and we know that he has no sincerity whatsoever because the rights of appeal to the Privy Council for the likes of Ahmed Zaoui will be removed. If there was any opportunity for Mr Zaoui to go to the Privy Council it will have gone. He will be taken well out of the sphere of the closed shop that is part of the legal system the New Zealand political system and so on. 
Those people who are appointed to whatever court it is in New Zealand by New Zealanders are often affected by their New Zealand environment. The classic comparison is with the Samoan appeal in the early 1980s when Mr Rosenberg took an appeal to the Privy Council on behalf of the Samoan people. No one thought he would have a show but he went to the Privy Council and he won. That type of right will soon be gone. 
When Mr Locke sits here smugly in the future and tries to convince me that he is really concerned about people’s welfare safety and constitutional rights in New Zealand I will know that that is absolute rubbish. Keith Locke who is sitting here right now in front of me is voting for the right of this minority Labour Government to remove protection and opportunity for people such as Ahmed Zaoui and other groups like Samoans. There are many hundreds of New Zealanders who were deprived legal aid and the Privy Council said they should have been granted legal aid and the right to appeal. Those types of downtrodden people whom the Greens have so often said they support will not have that right of appeal any more in future as a result of the passage of this legislation. 
They will not have any extra rights because virtually the same people who made the decisions in the Court of Appeal will make the decisions in the Supreme Court. Their study backgrounds and such like will be exactly the same. There will be no change whatsoever. As far as the purpose of this legislation is concerned I believe that it does not improve access to justice. Access to justice for 12 cases means that there are still only 12 cases. Access to justice would be improved if the Labour Government removed the increase it introduced in High Court filing fees which took them up to about $1000. 
Hon MATT ROBSON (Deputy Leader—Progressive) 
: 
 I found it humorous to listen to speakers on the other side of the Chamber particularly after we had had a discussion on humour and irony. The humour I found was to discover that parties of the right were suddenly concerned about justice and fair dealing. In all of my life I do not think— 
Dail Jones 
: I raise a point of order Madam Chairperson. We have just had a ruling from the Speaker on how members can call people and describe them. I take offence to my party being called a party of the right. I ask that that member refer to this party perhaps as a party of the centre. I do not want to be associated with a party of the right. I object to that. In terms of the ruling that has been made that is totally out of order. 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. The member knows that that is a debating matter. 
Gerry Brownlee 
: Point of order— 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. I have made a ruling on it. 
Gerry Brownlee 
: I raise a point of order Madam Chairperson. If you have made a ruling on that then it is contrary to what the Speaker has just told us. He said that we could not refer to groups of people in derogatory terms. That is what he said. He made it very clear. Mr Robson most definitely meant his comment as a derogatory term. He should refer to parties of the Opposition either in a way that presumably does not breach the Speaker’s ruling or by their particular name. 
Hon MATT ROBSON 
: Speaking to the point of order I point out that we are entering into the realm of stupidity in my opinion. The lexical terms “right” and “left” go back to the convention in 1789 of the French Revolution. They are accepted as general terms for parties to the right and to the left. I do not find it offensive if anyone says that I am in a party to the left—or a party to the right. That is fine. In my opinion this point of order is just pure sophistry. 
Rt Hon Winston Peters 
: I raise a point of order Madam Chairperson. The member may not find offence at being called a member of a party on the extreme left. However New Zealand First is New Zealand’s only common-sense centre of the road party and we like to be called that. We did not leave the parties that we were once members of—like some from Labour when it was a right-wing loony-tune party. Another one—[ 
Interruption 
] No we did not change our name seven times. This party has had just one name. The party that member belonged to changed its name seven times. What an effrontery! But that member should describe us as a party of the Opposition or talk about us as New Zealand First and the only New Zealand centre party—and do it properly. If he wants to get narrow about it that is it but again if he has been through seven parties any description would fit him. 
The CHAIRPERSON (Ann Hartley) 
: Just ruling on the point of order as Chair I certainly do not regard that as a derogatory comment. As the Speaker referred to earlier it might not be an accurate description but that is a matter for debate. 
Dail Jones 
: Point of order— 
The CHAIRPERSON (Ann Hartley) 
: I have ruled on this matter. 
Dail Jones 
: But you have not ruled on my matter. 
The CHAIRPERSON (Ann Hartley) 
: Is it a new point of order? 
Dail Jones 
: It must be. You have ruled that you do not regard the statement as being derogatory. With the greatest respect I say that your view is your own. It is my view that I am concerned about here. In my view—and that is what matters in terms of the Standing Orders—being referred to as a member of a party of the right and being linked with ACT for example is derogatory. I do not want my party to be called a party of the right. I am a member of New Zealand First. I am a member of a centre party. I am not in a party of the right. I believe that for a party to be called a party of the right is derogatory. With all due respect I do not care what you might think it is all about. The member should withdraw and apologise and we can then get on with the debate. That will save a lot of time. The Speaker will not have to be recalled to have this matter clarified. 
The CHAIRPERSON (Ann Hartley) 
: I as Chair have ruled on that. 
Hon MATT ROBSON 
: I respect your ruling Madam Chairperson. I take it that a member has taken offence at a term in this debate so I withdraw and apologise. At a later time we could possibly rule on whether the use of the terms “right” and “left” is offensive. 
The CHAIRPERSON (Ann Hartley) 
: The member has withdrawn and apologised. Please continue. 
Hon MATT ROBSON 
: The humour I found was that certain parties have spoken in terms of justice and fairness. In all my political life I have never associated many of the people in those parties with a great concern for human rights. For instance recently I read a press statement of the Rt Hon Winston Peters where it seemed to me that he was advocating we give justice in this country only to people who may be of the Christian faith. If one is Muslim agnostic atheist or Buddhist one can whistle that justice goodbye. That was my reading of that— 
Rt Hon Winston Peters 
: I raise a point of order Madam Chairperson. With respect you could say that this is a debating matter but it is not now—when a member says something so offensive to a lot of people who are members of New Zealand First whose beliefs are not as he has just outlined. I do not want to be categorised in that way. He knows full well that what I did say was that terrorists costing us hundreds of thousands of dollars should never have got here in the first place. 
The CHAIRPERSON (Ann Hartley) 
: The member has taken offence to that. Would the member like to withdraw that remark. 
Hon MATT ROBSON 
: I withdraw and apologise if the member took offence. 
The key question that I think members have misunderstood and it is important that I can perhaps elucidate it for them is that they have got mixed up that the replacement of the Privy Council is exactly that. There is a replacement—a third level of appeal. Members may quibble whether that third level of appeal is as good as the appeal level that is replaced but they cannot quibble with the fact that there is a third level of appeal. So the people they are concerned about—who will not have a right to appeal for instance to the Court of Appeal—will give them no need to be concerned. Those people will have a right of appeal to the new and third layer of appeal within New Zealand. 
Most of those who support that change will point out that that will also give greater accessibility to a level of appeal that before was only the preserve of those who could in the main afford to take a case to the Privy Council or in a very small minority who could access legal aid or some other form of payment. But for the great number of people in New Zealand the level of appeal that replaces the Privy Council is an extension of their right to appeal. 
Concerning the question of the famous Samoan case that went to the Privy Council—I was supportive of and overjoyed with the Privy Council’s ruling; I thought it was very very good and a lawful appeal—I point out that it was the New Zealand Parliament that overturned the Privy Council’s ruling. Some people who have spoken about this debate outside and even inside this Parliament were connected to the decision of the then National Party—joined unfortunately by some Labour members at the time—to overturn that decision. I am absolutely confident that a New Zealand court which is the third level of appeal in New Zealand would also come to the right decision and the question would then be whether the New Zealand Parliament would overturn the finding of a New Zealand court. 
Dr the Hon LOCKWOOD SMITH (NZ National—Rodney) 
: 
 I want to make these points very quickly. I have been quietly listening to this debate on a hugely important issue for New Zealand. The first thing I noticed is that this bill has been drafted in two parts. To curtail the debate to just two parts on something so important is shocking. As I look at the purpose of the Supreme Court Bill I am shocked. I would have thought that the purpose of what is proposed as the highest court of this land— 
The CHAIRPERSON (Ann Hartley) 
: I am sorry to interrupt the member but the time has come for the dinner break. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
LINDSAY TISCH (NZ National—Piako) 
: 
 The Hon Dr Lockwood Smith has asked me to take his place and that is significant because National has opposed this bill right through the first and second readings. During the Committee stage the National representatives who were on the select committee the Hon Georgina te Heuheu and my colleague Richard Worth made that opposition very evident. I was a member of the select committee and from my office I have been listening with great interest to the way the bill has been proceeding. I know that Opposition members have been putting up a very strong argument that this bill is an abuse of privilege. It changes the constitution and has no standing at all. It has not gone to the public where the majority of people should have been able to have a say as to whether they believe that this sort of change to the way we have donethings should happen. 
I want to start by just setting the scene under Part 1 about where this highest court we will have—the appellant court the Supreme Court which we are opposed to—actually fits into the bigger scheme of things. The courts are one of the three essential institutions of New Zealand’s democratic form of Government. The other two are the legislature and the executive. Our constitution recognises the importance of the independence of the judicial powers from the legislative and executive powers but this bill will compromise those powers. We want to make sure that we highlight those points during the Committee stage. We would ask the Minister to take a call to explain why this measure is necessary why there is so much misunderstanding of it and why its interpretation will be so fraught with difficulty. 
The importance of the judicial functions of Government and of their independence from other forms of Government applies to all the courts and that is a very important point. But with this bill there is also an added dimension because of the proposed changes that are concerned with the ultimate judicial power—the final appellant court or Supreme Court. Most of the decisions of the final appellant court in a country with a constitution like ours have a very wide effect. They have an effect outside New Zealand on the foreign institutions that we might be dealing with. What this court will do has far-reaching implications and that is something the Government has not taken on board at all. It is very important that the existing appeal structure is not altered unless what is put in its place is of the highest quality and we have some doubts about whether that will happen. That is one of shortcomings of this bill. We do not believe that we have here the expertise we have enjoyed in the past by being able to take our cases to the Privy Council. 
David Benson-Pope 
: Oh! They can’t even choose a leader. 
LINDSAY TISCH 
: I hope the member over there takes a call because it is all very well to sit there and interject. We are talking about a major constitutional change and what does that member want to do? He wants to sit over there and glibly make stupid statements when this bill is making major constitutional changes. Government members do not want to stand up and debate the issues. 
I refer also to the separation of powers. If we look at the commentary on the bill at page 10 we see that the legal profession made some very important points. I want to highlight what it said and I quote: “The Criminal Bar Association of New Zealand submitted that the bill proposes to ‘replace a top free system with an expensive inferior system’ ”. That is what the Criminal Bar Association said and National supports that system. 
Hon MARGARET WILSON (Attorney-General) 
: 
 I rise to address the provisions of the bill. I am very much aware— 
Richard Worth 
: I raise a point of order Mr Chairperson. I hope that in the course of the night I may get a call from you. I want to give preliminary notice that I would like the comments I make translated into Maori for the benefit particularly of Ngapuhi and Ngai Tahu listeners who I understand are gathered and prepared to listen to comments that are made. I just note that the Maori interpreter is not here and that whilst it may be possible to have Georgina te Heuheu translate in what is probably a departure from the recognised practice of the House I would prefer that there be an opportunity for me to offer those comments in Maori as I really do not think that my facility in the language is up to making a sufficient contribution. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the member for making that contribution in the manner he has done. If interpretation is required it is done as a matter of course. My second point is that during points of order members may not refer to persons listening outside the House. That is outside the Standing Orders. 
Hon MARGARET WILSON 
: As I was about to say there has been a great deal of discussion and debate around this matter over the past 4 years and for some of us probably over the past 30 years. However I understand our task here this evening is to concentrate on the specific provisions of the bill and that is what I intend to do. 
The first matter I wish to draw the attention of the Committee to is the Supplementary Order Paper in the name of the Government and to the substantive matter in that Supplementary Order Paper which is a new clause 42A. That provision arose out of the necessity to ensure that there is a Chief High Court Judge who will be able to ensure the proper administration of justice of the court at that level and that is why that provision has come in at this time. 
The only other matters I wish to draw attention to include the excellent work done by all the members of the select committee and the amendments that were supported by the majority. In particular there is a vastly improved redrafted purpose clause that more fully sets out the purpose of the legislation and to some extent I think puts the debate in a context. I would be interested to hear honourable members’ comments actually directed to the redrafted purpose clause because I think it greatly improves the bill. 
The other matter of substance in this part of the bill that was addressed by the committee related to the inclusion of the “interests of justice” provision within the grounds for appeal and the reordering of the specific grounds for appeal that are in that particular clause. I refer to the new draft of clause 13 “Criteria for leave to appeal”. I think that is also an improvement. It makes clear of course that in the interests of justice—and if the court so decides on hearing the application—leave may well be granted on other grounds but it does not require leave to be given at every possible opportunity. 
In respect of the provisions relating to the number of members on the court I found the debate and commentary very useful and I think helped by the addition in the legislation of one member. Experience in the District Court and the High Court has shown us that when we have limits it is at times extremely difficult to get the necessary legislation through to ensure the smooth administration of justice by increasing the numbers. So I think that was a very helpful provision. 
Also I think the specific provisions in this part generally enhance a clearer understanding of what in essence is quite a straightforward and simple piece of legislation in terms of its drafting and intention. That is not of course to take away anything from the arguments that surrounded this legislation but the select committee was the place to have those arguments. My understanding of the process is that this House should concentrate on the specific provisions of the bill. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 I want to make some comments on the purpose clause which the Minister has just referred to. The bill as introduced had a very simple purpose clause that sensibly set out the very simple reason for the bill which is basically to establish a Supreme Court to end appeals to the Privy Council and to make amendments that follow on from that. We now have a new purpose clause which in my view is symptomatic of all the gobbledygook and wiffle-waffle that the Government is known for. 
I can see why the Government has done this. It has tried to address the many concerns and points of opposition that were made at the select committee but in essence I do not think it has done so. Clause 3(1) states that the purpose of the Act is to establish a court and “to recognise that New Zealand is an independent nation with its own history and traditions”. Honestly that is like telling people how to suck eggs. If that is not what a court should be about then we are in a sorry state of affairs if we have to spell it out in legislation. New Zealand is an independent nation. No matter if we carried on with the Privy Council for the rest of our days we are an independent nation in any event. It is not the location of our final court of appeal that makes us an independent sovereign nation. 
Hon Taito Phillip Field 
: And the umbilical cord has to be cut sometime. 
Hon GEORGINA TE HEUHEU 
: The member is probably right. But it should certainly not be against the wishes of the majority of the New Zealand public. No matter how much the Government might say it has a mandate to do this it runs a minority Government. The Greens who are supporting the Government are not even united. I know that. There are members in the Green Party who are not happy about having to do a deal so that Nandor Tanczos can get his Clean Slate Bill through and wipe any offences relating to the smoking of pot that he or his friends might have. 
That is the kind of deal-making that goes on here. A bill that the majority of New Zealanders have no time for will now be rammed through without a mandate thanks to three extra votes from the Greens whose word cannot really be taken seriously—particularly when we get someone like Nandor Tanczos who at the beginning of the session said: “I will wait to see what Maori say about this.” He did not hear them because 95 percent of the submissions Maori made are opposed to the bill but he is still supporting it anyway. 
Clause 3(1)(a)(ii) states that the purpose is: “to enable important legal matters including legal matters relating to the Treaty of Waitangi to be resolved”. That does not satisfy Maori objection—not at all. No doubt it was put in to satisfy Nandor Tanczos. We get a situation whereby a little party somehow exerts its weight far above what it should. If Nandor Tanczos thinks that clause 3(1)(a)(ii)— 
Keith Locke 
: I raise a point of order Mr Chairperson. I think it is important that members’ names be pronounced correctly. “Nandor” is pronounced with the vowel sound of the “a” in Maori. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the member for drawing that to the member’s attention. Some people have difficulties with pronunciation—I am sure all of us do at certain times—but I would expect that members would do their best to pronounce names correctly. 
Hon GEORGINA TE HEUHEU 
: Speaking to the point of order Mr Chairperson I ask how I should pronounce the member’s name please as my name is mispronounced so much of the time. 
Keith Locke 
: It has a Maori “a” pronunciation. 
The CHAIRPERSON (H V Ross Robertson) 
: That is not a point of order. Will the member please continue. 
Hon GEORGINA TE HEUHEU 
: I did not realise that Nandor was a Maori name or that I have to pronounce it with a Maori vowel. I look forward to the person who raised the point of order pronouncing my name correctly if he would. 
In any event if the Government thinks that clause 3(1)(a)(ii) satisfies Maori objections it is wrong. I ask Nandor Tanczos to think again and get it into his head that he does not represent a Maori point of view no matter how much he might think that he wants to or that he can. The bill in no way satisfies the objections of Maori. Their major objection is that this is being done without proper dialogue on the status of the treaty. 
MURRAY SMITH (United Future) 
: 
 United Future will support the Government’s proposed amendments because we think they improve the bill particularly regarding the change of date of instigation. Nevertheless we believe that to enact the Supreme Court Bill on 1 January 2004 would be premature and that the commencement date of 1 July 2004 is also premature. It would be preferable if the enacting of the bill were put back for 5 years because firstly it is not needed yet and secondly it is not wanted yet. It is not needed because at this point in time the Privy Council is more than adequate in meeting New Zealand’s need for a second-tier court of appeal. 
I accept that the new court would bring some advantages particularly in giving access to a greater number of cases. However the cases that it would be able to hear—in particular Family Court Environment Court and Employment Court cases—would be appeals at a third-tier level and the number of appeals that come through would likely be rare and therefore very few cases would be affected and obtain that advantage. 
Against that is the fact that we would lose with the Privy Council a quality of judiciary that has been accepted right across the Parliament as being of high quality. We would engage in a huge cost that we do not incur with the Privy Council and most important we would be making a move that does not have the confidence of the community. I do not think we need to make this change yet. I said in my second reading speech that I predicted we would probably need to make the change within 5 to 10 years—and probably at the lower end of that—but at the moment the Privy Council is very adequate for New Zealand’s needs. We do not need to change and to start the bill on 1 January 2004 is premature. 
The bill is also not wanted and this is perhaps the more important point. The business legal and Maori communities clearly do not want this bill. A substantial percentage of New Zealanders do not want this bill. The select committee process which involved a wide range of New Zealanders made it clear the bill was not wanted. There was overwhelming quantitative and qualitative opposition to the bill. I believe that the court will probably be needed by 2008. Events in the UK will have progressed and we will probably need it then. But we do not need it now. New Zealanders will by then I hope be ready for it providing they see it as their decision and have come to that conclusion without feeling that it is being dictated to them by the Government. 
Questions have been raised as to whether there should be a referendum. United Future did not initially support the proposal that there ought to be a referendum on the matter. In the commentary on the bill our comments show quite clearly that we opposed the idea of having a referendum because we considered it an inappropriate and unnecessary process for the reasons that those opposed to the referendum enunciated. We thought it was unnecessarily expensive to undertake a public referendum prior to reforming the court structure. 
However in the absence of cross-party support in the Parliament in the absence of public support during the select committee process in the absence of United Future being able to negotiate amendments that would sufficiently satisfy and provide answers to the prime concerns of key sectors of the public and given the prospect of a mere 63 votes being cast in support of the bill a referendum is the only remaining way of providing the necessary buy-in by the public to justify this bill being passed. United Future will therefore support the Supplementary Order Paper being proposed by ACT. 
In terms of the purpose clause there was concern among objectors as to judicial activism. United Future supported the Hodder formulations and with some amendment we proposed as revealed in the commentary to the bill that they be adopted in a modified form. I note too that ACT’s amendments by and large follow that. Therefore we will also be supporting the amendment in the Supplementary Order Paper proposed by ACT that the purpose clause and the addition to the purpose clause be put into the bill. The judiciary does need to be conscious of its place. There has been some concern in particular with the Lesa case. 
Hon TAITO PHILLIP FIELD (Associate Minister of Justice) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (H V Ross Robertson) 
: No. I call the honourable member Pita Paraone. 
PITA PARAONE (NZ First) 
: 
 Tena koe Mr Chairperson. 
Clayton Cosgrove 
: Who? 
PITA PARAONE 
: I presume that you asked “Who?” because you cannot pronounce my name. Never mind. 
The CHAIRPERSON (H V Ross Robertson) 
: The member may not use the word “you” because that is referring to the Chair. He must use “the member” “the Minister” or speak in the third person. 
PITA PARAONE 
: I stand corrected. New Zealand First will continue to oppose this bill. I want to take a call on clause 3 “Purpose” in Part 1. Clause 3(1)(a) provides that the purpose is “to establish within New Zealand a new court of final appeal comprising New Zealand judges—” and then it outlines the reasons in subparagraphs (i) and (ii). With regard to the wording particularly in clause 3(1)(a)(ii) which states: “to enable important legal matters including legal matters relating to the Treaty of Waitangi to be resolved with an understanding of New Zealand conditions history and traditions;” I suggest that at this precise moment in time New Zealanders do not have a clear understanding of the Treaty of Waitangi. Those past cases that have already been referred to the Privy Council in relation to issues affecting the treaty have been better understood and as a consequence better dealt with by those from overseas. I am talking about those cases referred to the Privy Council in terms of the fisheries and broadcasting. 
I suggest that perhaps the reason for the haste with which this bill has been introduced and processed through this Parliament is anticipation of the likely cases that could be referred to the Privy Council to deal with the foreshore and seabed. Perhaps there is a fear on the part of the Government that the people who sit on the Privy Council will have a better understanding of this issue and may come down with findings that oppose the views of this Government. 
I also want to ask the Maori members in Government what in their view they have done to represent their people in this area. 
Pansy Wong 
: Nothing. 
PITA PARAONE 
: The fact that we are now debating this bill in the Committee stage can say only one thing and that as my learned colleague from this side has said is nothing. This is a betrayal of the highest order not only by those Maori members but also by this Government because the majority of New Zealanders including Maori oppose this bill. In fact we must question where the concept of democracy got lost on the way with regard to this Government. 
Given the narrow margin by which this bill was scraped through should not a halt be called until such time as adequate debate and consultation have been undertaken? The lack of support surely indicates that this issue needs further policy analysis—or is this Government afraid of what the New Zealand First ACT and National petition currently doing the rounds is likely to produce for the Government? This Government passed the Prostitution Reform Act by one vote. A similar situation is about to happen here. 
David Benson-Pope 
: Stop telling porkies. 
PITA PARAONE 
: Well whatever the difference was it was very close even if we did have one member from the Government side of the House give new meaning to objection by abstaining. What does that tell us about this Government? It tells us that it has its own agenda which will persist in the face of widespread public opposition and the glaring lack of a mandate from all New Zealanders. Constitutional changes should be made only with the consent of the people; but then to this Government what is the consent of the people? 
Seventy-five percent of those who appeared before the Justice and Electoral Committee opposed the bill. The independence of the judiciary and its political neutrality should be inviolable in this country. The longstanding links with the Privy Council and the legal expertise that it possesses should not be severed on a political whim. 
GEORGINA BEYER (NZ Labour—Wairarapa) 
: 
 I move  
That the question be now put 
. 
RICHARD WORTH (NZ National—Epsom) 
: 
 The first point I would like to make Mr Chairperson—and you will know these provisions well—is that on page 94 of the current Standing Orders it is made wholly clear that in debates of this type each member seeking a call has the possibility of making not more than four speeches. I am referring to the third box on page 94. That is why I was so disappointed in someone whom I admire greatly the Hon Taito Phillip Field moving a closure motion after only three speeches had been given on this part. He may well have been directed to do that by his senior whip but the follow-through from Georgina Beyer was similarly to seek to close down the debate. I think it is a matter of considerable sadness in the context of Part 1 that a member whom I understand may well be a Maori member—Georgina Beyer—is not prepared to have the issues that arise in this part fully debated. 
In the context of Part 1 we are being treated to an outrage. Why do I say that? It is because this morning we had a Supplementary Order Paper from the Attorney-General that as others have commented runs to eight pages and there are also multiple amendments from other members. In addition I would like to flag and have the opportunity to speak to several of the amendments I have put up in connection with Part 1. Two of the amendments are of particular significance. The first relates to clause 17 and the second similarly related adds a subclause to that clause. I hope there will be the opportunity to talk on those issues because in this call I would like to concentrate just on the merits of this part—[ 
Interruption 
]—without I say to Mr Hide his necessary and I am sure ever helpful interjection. 
First if we think that the record of the Court of Appeal in recent times has been flash then we should rapidly disabuse ourselves of that notion because in a sequential review of 10 appeals that went from the Court of Appeal to the Privy Council in a period of about 14 months no fewer than seven—70 percent—of those cases were reversed. 
That is not a good record. If we look at some of those Court of Appeal decisions we will see that one of the standout decisions of the Privy Council related to the Taito case. As others have commented the first of 1500 convicted criminals denied a right to appeal by systemic failure in the Court of Appeal will have his case heard later this month. 
The key provision in Part 1 establishes the Supreme Court. In the short time available and against the background of seeking—and I hope securing—further calls on this important legislation I would like to summarise very briefly what National’s position is in respect of Part 1. With the establishment of this court we are seeing the abandonment of a court of excellence. The Judicial Committee of the Privy Council which is recognised as a court of excellence throughout the Commonwealth and has heard thousands of appeals—in the context of New Zealand the first appeals are from about 1851—is to be with us no longer. All the intellect at that court and all the sustained knowledge built up over years of litigants appearing before that court and arguing cases in a New Zealand context and with a New Zealand flavour will be lost—for what reason? 
TIM BARNETT (NZ Labour—Christchurch Central) 
: 
 I move  
That the question be now put 
. 
STEPHEN FRANKS (ACT NZ) 
: 
 I raise a point of order Mr Chairperson. This is a two-part bill with schedules. There are 42 clauses in the part we are dealing with at the moment. I am anxious to get a bit of an indication from you before I speak—and I suspect others may also need it—as to whether you would be inclined to allow more than one speech. I know that the Standing Orders encourage members to think that they can have up to four and that commonly the debate on the commencement provisions and the early phase may be very short but I want to draw to your attention—and despite what Mr Worth said it is not a bill with which you have been previously involved—that the whole substance of the bill is in this part. It does govern the way in which I would address— 
The CHAIRPERSON (H V Ross Robertson) 
: I have the member’s point of order. As the presiding officer I am the sole judge of relevancy as to whether I take the closure. I am considering the issue at the present stage but I have not yet been convinced that there needs to be a closure motion. 
STEPHEN FRANKS (ACT NZ) 
: 
 I want to speak to the first two of my three substantive amendments to Part 1. The first proposes that the commencement involve a referendum. In my opinion a referendum is not the most desirable way in which to achieve a constitutional change of this type. A referendum necessarily would involve debate about the comparative or relative merits of our court and what the overseas judges can do. I know there are many judges who quite properly are anguished about the damage that may occur to the reputation of the judiciary as we go through the next few months. A referendum is constitutionally a very appropriate way for a country with a Parliament that has only one Chamber and no written constitution to establish a change of this magnitude. It should be in the hands of the people and require their endorsement. I am nevertheless sensitive to those who think that it is an unhappy necessity. But I am now persuaded by the passage of this legislation and by the haste with which we are dealing with it that it is absolutely essential that the commencement require the endorsement of New Zealanders. 
This bill is treating our highest court and the tenure of the judges of that court as potential playthings of a minority ruling party. There may be no one in this House who would think it possible or likely that that precedent could be misused lightly. I believe there is no doubt at all that at some stage in the future what we are doing here tonight and will be doing over the next week or so will be cited as evidence that it is possible to tamper with the courts when it is convenient for a ruling party. I am sorry that the Greens are not supporting us—in particular Rod Donald who makes such a play of the constitution being the property of more than the generation currently exercising its powers. I am sorry that that is a matter where we will possibly— 
The CHAIRPERSON (H V Ross Robertson) 
: The member may not refer to the absence of members from the Chamber. That is a longstanding convention. 
STEPHEN FRANKS 
: I am sorry. I meant that they are not supporting us. There are Green members present and they are not supporting us. ACT’s proposed commencement clause which I am pleased to hear that United Future will support and which I know the National Party and New Zealand First will support is very simple. It enables all the detail to be before the people. It is all worked out: the bill is passed by the House but comes into force only when it has been endorsed by New Zealanders in a referendum. 
I have a suspicion that many New Zealanders see this in the same crude nationalistic terms as the Attorney-General does. This Clark-Wilson Government is contemptuous of people and of their ability to understand but the question of whether a court that is utterly independent of New Zealand political pressure and whose appointees are right outside the reach of any kind of caucus calculation is replaced with a court that is subject to the main constitutional problem for any country—who watches the watchers—is simple for people to understand. If they choose at the end of the referendum process to vote for it the court will have been validated. The Supreme Court will have a mandate that the House cannot give. 
The House is not giving a mandate to the Supreme Court but by the squalid process of ramming the bill through now is doing the very opposite. There will be no mandate. The new court will have to earn it painfully over many years of probably hostile scrutiny because it will set off with people being suspicious about the motives for setting it up and concerned about its quality. Instead of being a celebration of nationalism as it was in Australia and Canada it will start under the sort of scrutiny that may mean that it fails—and New Zealanders will lose confidence in yet another of their institutions. I urge that the Committee in the interests of the new court vote for a referendum process that will enable the court to be established properly. 
STEVE CHADWICK (NZ Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
SIMON POWER (NZ National—Rangitikei) 
: 
 It is with pleasure that I make a contribution on Part 1 of the Supreme Court Bill. I was on the Justice and Electoral Committee when the bill first came before that committee and at that time I expressed along with my colleagues on the committee many of the concerns that have been raised by my colleagues and by members on this side of the Chamber during the course of this debate. In fact many of those concerns have not been addressed at all. 
I reflect on what this bill will mean for the legal community and those seeking to have their cases heard at a high level by way of appeal and more particularly on what it says about the Government’s basic attitude towards the people of New Zealand. This Government’s view is simply that the public are not smart enough to get it and on that basis the Government believes that it will tell the public what is right for it and refuse to allow the people of New Zealand to have a say. 
I am sure that amongst Government members on the opposite side of the Chamber there are those who are concerned that a constitutional change of this magnitude is about to occur. I am sure there are one or two over the other side of the Chamber who are in fact a bit embarrassed that they are about to deal with a significant constitutional aspect of the lie of the land in New Zealand—by a very slim majority—in what can only be described as a slippery way to make a substantial change to a basic constitutional right of all New Zealanders. 
We on this side of the Chamber—New Zealand First ACT and National—share a very simple view. We actually believe that the public of New Zealand are smart enough to have a view on this. Funnily enough we believe that the people of New Zealand are quite capable of making an informed decision as to whether they wish to remove the right of appeal to the Privy Council. In fact we trust the people of New Zealand to get it right. On that basis members on this side of the Chamber have been promoting a referendum on this issue. 
It is not an issue that this Government is turning down in isolation. Members will recall that when a member’s bill in my name came before this House about 6 months ago with an opportunity for the New Zealand public to have another look at the electoral system the Government also threw that out. Parties who actually had a bit to lose from that referendum like the ACT party because they are all list MPs voted for that legislation. I remember it clearly. The reason that the ACT party voted with National on that issue is simply that members of those parties are not arrogant enough to believe that the New Zealand public are not smart enough to have a view on these issues but believe that they are in fact able to make their minds up themselves. [ 
Interruption 
] 
That is what that member always says. I wish she had another issue because I am getting a bit sick of it after 4 years. It would be nice if she had another issue. [ 
Interruption 
] The well-liked Government senior whip—the only senior whip in the Parliament who chips in while people are speaking and does not have the decency to keep his mouth closed while other people are making a contribution—should learn a bit from the behaviour of other senior whips in this House. That sort of behaviour does the Government no good in the eyes of the public. 
In fact this Government actually thinks that the public of New Zealand are not smart enough to make these decisions. We say they are smart enough. We say that the Clark-Wilson Government is not able to make a fair assessment of what the New Zealand public want. In fact I would have to say that on the more than one occasion that this has occurred in the last 6 months it is that type of arrogance when dealing with the public that this Government would be— 
DAVID BENSON-POPE (Senior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (H V Ross Robertson) 
: I call the honourable member Nandor Tanczos— 
Hon Georgina te Heuheu 
: I raise a point of order Mr Chairperson. Could I just point out that a point of order was taken on my pronunciation of that member’s name and it was pointed out to me that I was not pronouncing it correctly. You happen to be saying it in the very same manner that I did and I would ask that you pronounce his name correctly. 
The CHAIRPERSON (H V Ross Robertson) 
: That is not a point of order. I call the honourable member Nandor Tanczos. 
NANDOR TANCZOS (Green) 
: 
 For the clarification of everybody in the Chamber it is pronounced “Narn-dor Tarnt-zosh”. 
I would like to begin my speech this evening by offering and putting on record an expression of sympathy from the Green MPs to Green staff member Roland Sapsford for the loss of his father whose funeral was held earlier this evening. Members may have noticed that a number of Green MPs have been away from the Chamber this evening to attend that funeral but we are now back in full strength. 
I would like to address the questions raised by the amendment of Stephen Franks regarding the referendum. This is an issue of some interest to members of Parliament and to a few people outside of Parliament. I think that first of all we need to address whether the bill is a major constitutional issue and I think that that is debatable. I say that because if we look back to 1996 the New Zealand Courts Structure Bill which was introduced by the National Party sought to remove—not to replace as this bill does—the right of appeal to the Privy Council. That bill was therefore a significantly more important constitutional move than this one and it did not contain provision for a referendum. The Supreme Court Bill in contrast replaces the Privy Council with a Supreme Court that will fulfil the same function in a different forum and arguably more effectively. 
We have to ask what kinds of things are appropriate to have referenda on because contrary to some members’ opinions we do not have a convention in this country that major constitutional changes should be done by referenda. The history of the use of referenda in this country is extremely patchy. They were first used in 1919 and there have been only 10 Government-initiated referenda in all the time since then. Three of them were on alcohol one on gambling one on the military draft two on the length of the term of Parliament two on MMP and one on superannuation. In contrast the most significant constitutional issues this Parliament has faced such as the adoption of the Statute of Westminster the abolition of the Legislative Council the adoption of the New Zealand Bill of Rights Act the establishment of the Court of Appeal and the privatisation programmes rammed through this House were not done by referenda. 
Let us bear in mind that no country in the world including Canada Australia Singapore India Hong Kong and a whole host of others has used a referendum to end appeals to the Privy Council. In practice we do not have in this country a convention that means significant constitutional issues should be decided by referenda. 
If anything we tend to use referenda for minor issues in this country and if our country is to adopt a principle that says major constitutional issues should be so decided—and that is something I would be supportive of—we need to establish some guidelines about how we determine what is a major constitutional issue of the kind that should be addressed by referenda. We have to have some criteria. Accusations that this bill is a major issue needing a referendum needs to be backed up by some criteria and evidence. 
It seems to me that if we are to look at the question of what issues should be decided by referenda we should look at things like whether the issue relates to the composition of Parliament because referenda would then provide a safeguard against the ability of Parliament to act in order to change its own composition—that safeguard being the people’s will. Issues that are subject to the self-interest of parliamentarians such as Parliament’s re-elections would be suitable for referenda. If there were evidence of widespread and general demand for referenda such as we would have indicated to us through a citizens initiated referenda process that would be a suitable indication. We might need to look at amending the process to be less onerous but there is no such indication in this case. 
Lastly if the balance of power between the executive the legislature and the judiciary is to be changed a referendum would be indicated. I would argue that the Supreme Court Bill invokes none of those criteria. It may invoke others that have not been mentioned but this Parliament would need to identify what those were if we were to make a credible argument. Let us bear in mind that the 1996 Royal Commission on the Electoral System was very cautious about the use of referenda. It said that they should in general be avoided provided there is continued development of restraints on the power of Governments such as through parliamentary select committees the Ombudsman the Official Information Act and administrative review through the courts. Those comments were made before the advent of MMP which provides further restraints upon the executive because of the need for minority Governments to fashion working majorities. 
Some say that the bill will pass with too slim a majority. I reject that view. The bill has the support of three parties in this Parliament. 
PANSY WONG (NZ National) 
: 
 The public deserve an explanation. Like myself they might be a bit confused by the Green member who has just sat down. He started to tell us that we should respect convention—if something has not been done in Parliament before then we should not even try to attempt it. It is incredible to think that the Greens actually respect tradition and convention. 
 Let me come back to this bill and interestingly to its purpose. Clause 3 states: “(1) The purpose of this Act is—(a) to establish within New Zealand a new court of final appeal comprising New Zealand judges—(i) to recognise that New Zealand is an independent nation with its own history and traditions;”. At first glance one may tend to agree with that but when one reflects on it one wonders why Prime Minister Clark consistently tells us that we have to do what the United Nations wants us to do for example under section 59 on smoking—because all the other countries have to repeal it so do we. 
Whenever there is an issue such as the labour laws etc. we are told what to do by this very flexible Prime Minister Helen Clark who seems to be able to change her argument according to the issue she is championing. In this case it is said that New Zealand is an independent nation with its own history and traditions so therefore we must have our final court of appeal the Supreme Court. Why is it that when we come to other issues we say we must do whatever international rules or regulations stipulate? How can we consistently follow the argument of this Labour Government when one day it says we are obliged to do what the international community believes we should do and the next day says: “Hey we’re an independent nation with our own history and tradition so we should not continue this linkage with a very superior Privy Council in Britain.”? 
The second reason we are told under clause 3(1)(a)(ii) that we should have a Supreme Court is “to enable important legal matters including legal matters relating to the Treaty of Waitangi to be resolved with an understanding of New Zealand conditions history and traditions;”. One would think that a Government that put such a provision in the purpose clause of a bill would actually respect the treaty partner’s—the Maori community’s—opinion on that. I was told by my very learned and well-respected colleague Georgina te Heuheu that the majority of the Maori population was not consulted and did not agree. In fact most Maori—the treaty partner—who turned up to the Justice and Electoral Committee actually said that they do not believe we should cut our link with the Privy Council. 
The Minister should at least have the decency to stand and take a call to explain to us why it is that the purpose clause in this bill does not seem to equate to our actual observations. I was surprised earlier that my parliamentary colleague Taito Phillip Field stood up and sought to shut down the debate even though we appreciate that Labour members always do what they are told. He and I sat on the same select committee in respect of the Western Samoan citizenship petition where he kept telling the committee and the submissioners that the Privy Council had made such a great ruling and he tried to persuade us and Parliament to listen to the wisdom of that court. 
RUSSELL FAIRBROTHER (NZ Labour—Napier) 
: 
 I move  
That the question be now put 
. 
DAIL JONES (NZ First) 
: 
 I rise to speak in particular to clause 3 in Part 1. It sets out the purpose of the bill which according to the minority Labour Government is to improve access to justice. Well that shows how little the minority Labour Party knows about access to justice and about the effect this legislation will have on access to justice for New Zealand companies. One of the things that happens in commercial law is that a clause is included in contracts between New Zealand companies and overseas companies stating: “The law of the contract shall be the law of ...” and the name of the country is put in. That country’s law governs the way that the contract is administered in legal situations if things go wrong. Until now it has been easy for that country to be New Zealand because people from countries such as France Brazil or outer Mongolia knew that our law would ultimately if necessary be determined by the Privy Council—a well-known body that is based on British principles of common law and clearly established principles of statutory interpretation. 
When this bill is passed the country’s law stated in a contract will no longer be the law of New Zealand for the vast majority of existing contracts that refer to the law of New Zealand; it will in fact be the law of the other country. That country may be the Netherlands. If one is dealing with Philips then Philips will make sure that the law will be the law of the Netherlands and if necessary of the European Union. If one is dealing with Australia say in mining cases the law will be as determined by the High Court of Australia. If one is dealing with any other country such as Russia or the United States—and in the United States it will inevitably be the state of New York—that country or state will govern the law of the contract. So New Zealanders will cease to have the access to justice that they currently have. 
This bill will reduce access to justice for New Zealand companies. It is acknowledged that commercial organisations are one of the groups that use the Privy Council. I would think that roughly 50 percent of the appeals to the Privy Council have been made by commercial bodies. Those cases will no longer go to the Privy Council obviously. They will not go to the Supreme Court either. Our business dealings will be determined by states such as New York by the High Court of Australia and funnily enough by the House of Lords. They will determine New Zealand contracts— 
Stephen Franks 
: Supreme Court of Singapore. 
DAIL JONES 
: —and the Supreme Court of Singapore—for that type of case. We will lose access to justice. Our lawyers of course will be out of work unless they start working on trans-Tasman ways of doing things. We will be giving away work to overseas companies and if we think those cases will still be determined by the Supreme Court of New Zealand we have another think coming. 
This bill represents the dumbing-down of the New Zealand judiciary. As one of the submissions stated this legislation will create a backwater for the New Zealand judicial system in the South Pacific. No one will take any notice of our decisions and we will be given the respect we deserve for having a court that is totally untried—a court whose track record has been one of being constantly overturned in the Privy Council on some fairly obvious decisions. [ 
Interruption 
] Ms Chadwick can make as much noise as she likes. She is obviously ignorant of the situation and does not give two hoots about New Zealand becoming a backwater in the South Pacific. 
When Australia and Canada did away with the Privy Council they already had a two-tier system. They had the equivalent of our Court of Appeal and they had a higher court which became their final court of appeal. We do not have that system in New Zealand. That is the difference between us and Australia with its High Court of Australia and between us and Canada with its Supreme Court. We do not have that situation in New Zealand; we have only one Court of Appeal. That is the difference between the way Canada and Australia did it and the way New Zealand is doing it. 
I am disappointed that none of the seven Maori Labour members of Parliament has spoken. I wonder whether they are “Bashful” or “Happy” or whether they are “Sneezy” “Sleepy” “Grumpy” “Dopey” or “Doc”. 
JILL PETTIS (Junior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Noes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Motion agreed to. 
The question was put that the following amendment in the name of Stephen Franks to clause 2 be agreed to: 
to omit clause 2 and substitute the following clause: 
2Commencement 
(1)Except as provided in subsection (2) this Act comes into force after – 
(a)the Chief Electoral Officer has declared the final result of the referendum to be held before or no later than the next general election which asks the question: “Should our right of final appeal to the Privy Council be abolished?”; and 
(b)a 66 percent majority of those voting in the referendum answers “Yes” to the question. 
(2)Subsection (1) comes into force on the day after the date on which this Act receives the Royal assent. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5; United Future 8. 
Noes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 2 be agreed to: 
to omit all the words after the words “into force on” and substitute the words “1 July 2006”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5; United Future 8. 
Noes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 2 be agreed to: 
to omit all the words after the words “into force on” and substitute the words “1 July 2007”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5; United Future 8. 
Noes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 2 be agreed to: 
to omit all the words after the words “into force on” and substitute the words “following endorsement of this Bill by a majority vote in a public referendum”. 
A party vote  was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5; United Future 8. 
Noes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Stephen Franks to clause 3(1) be agreed to: 
to omit from paragraph (a) all the words after the words “a new court of final appeal”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5; United Future 8. 
Noes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 3(1) be agreed to: 
to omit from paragraph (c) the word “end” and substitute the word “deny”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 3 be agreed to: 
to insert the following new subclause: 
(1A) to deny New Zealanders right of access to one of the most esteemed judicial authorities in the world. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 3 be agreed to: 
to insert the following new subclause: 
(1AA) to allow for a politically appointed highest court in this country. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Richard Worth to clause 3(2) be agreed to: 
to omit the word “Nothing” and substitute the word “Everything”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Stephen Franks to insert the following new clause 3A be agreed to: 
3APrinciples  
The new court of final appeal must: 
(1)Rule of Law reinforce the rule of law in New Zealand and in particular the principle that to the greatest extent possible the laws of New Zealand should be known or accessible in advance to enable all persons required to comply with such laws to shape their conduct accordingly and to enable the courts of New Zealand to apply such laws in respect of any matter before them; 
(2)Separation of Powers affirm the principle that powers of legislation adjudication and administration should be held by the separate branches of government and that the role of the judiciary should be to decide the cases before it in accordance with the established and accessible laws of New Zealand; 
(3)Parliamentary Sovereignty respect the principle that substantial issues of public policy in New Zealand and the establishment of new principles to govern the duties of private persons should be decided by the outcomes of the Parliamentary process and not by judicial legislation. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5; United Future 8. 
Noes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Richard Worth to insert the following new clause 6A be agreed to: 
6AThe Supreme Court shall only be established with the majority of 75 percent of the House of Representatives. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Richard Worth to clause 15(1) be agreed to: 
to insert in paragraph (b) after the word “any” the word “relevant”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Richard Worth to clause 16(1) be agreed to: 
to add the words “at the first available opportunity”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Stephen Franks to clause 17(1) be agreed to: 
to omit paragraph (b) and substitute the following: 
(b)5 other judges appointed by the Governor General as Judges of the Supreme Court. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Richard Worth to clause 17(1) be agreed to: 
to insert in paragraph (b) after the words “Governor-General” the words “on the resolution of the House of Representatives”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Richard Worth to clause 17 be agreed to: 
to add the following new subclause: 
(3)Notwithstanding the provisions of section 23 of the Constitution Act in the event that the Supreme Court is disestablished the Judges of the Court must not continue in office and must not receive salary or other allowance from that date. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Noes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Mr Chairperson. There seems to be a plan to put these amendments globally. There is nothing in the Standing Orders that strictly sanctions that course. I seek that the amendments be put separately in the absence of a Speaker’s ruling to the contrary. I stand subject to correction that there may be a Standing Order or a Speaker’s ruling concerning that but I do not think so. 
The CHAIRPERSON (H V Ross Robertson) 
: I understand that it is up to members themselves as to whether that can happen. It is my understanding that the Minister has chosen to do it that way. 
RICHARD WORTH 
: The issue is what Speakers’ rulings the conventions of the House or the Standing Orders state. I do not believe that the issue is covered by the Standing Orders. You have a better knowledge of that than I do. 
The CHAIRPERSON (H V Ross Robertson) 
: I refer the honourable member to Standing Order 301 which states: “The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question. …” We will now put the question that the Minister’s amendments as set out on Supplementary Order Paper 151 be agreed to. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Mr Chairperson. With respect— 
The CHAIRPERSON (H V Ross Robertson) 
: I have already ruled on that matter. 
RICHARD WORTH 
: I appreciate that but is that what the Minister wants? 
The CHAIRPERSON (H V Ross Robertson) 
: I am sure that is what the Minister wants. 
RICHARD WORTH 
: Should we not inquire of her? 
The CHAIRPERSON (H V Ross Robertson) 
: The Minister indicated that was what she wanted and I will do that. Can I now have the vote? 
A party vote was called for on the question that the amendments set out on Supplementary Order Paper 151 in the name of the Hon Margaret Wilson to Part 1 be agreed to. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Mr Chairperson. The point of order arises from Standing Order 301 to which you have just referred members of the Committee. As you have correctly observed it states: “The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question.” But the second sentence states: “An amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place of the bill.” That is an irregularity in the process that has been followed today. I seek that the irregularity be corrected by re-voting on the amendments to the relevant part of the bill. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the member for drawing that to my attention and say that the Minister’s amendments are taken at the end in order that there is no confusion and that the amendments are not taken in the wrong order. That can happen if we have different amendments being put in by different members. So for the convenience of members the Minister’s amendments are put at the end. It has been the custom in this place for a considerable amount of time—especially since I have been in the Chair anyway—that that occurs. I am now going to declare the vote. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Mr Chairperson. It is all very well for you to say that that is done as a matter of convenience but it is a clear breach of the second sentence of the Standing Order and that is what I ask you to focus on. Matters of convenience are fine but the rules of the House are another matter. Unless you suspend the Standing Orders then I ask that we follow the regular processes of the Committee as recorded in the Standing Orders. Why is that unreasonable? 
JILL PETTIS (Junior Whip—NZ Labour) 
: 
 It is abundantly clear from practices in this Committee—and I say with respect that I have been here longer than that member—that Ministers’ amendments are taken collectively at the end. The practice that we are seeing tonight is no different from what has been practised over the last 10 years and the Chairperson tonight is complying with what we have witnessed for the last decade. 
LINDSAY TISCH (Junior Whip—NZ National) 
: 
 I raise a point of order Mr Chairperson. I want to query your ruling on this because I vividly recall that when we did the Gambling Bill on which I had a number of amendments the Minister’s amendments came first. They actually ruled out a number of the amendments that I had. If we look at the point that my colleague Richard Worth has raised concerning that second sentence of Standing Order 301 we see it is very clear that an amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place in the bill. There is a precedent set in recent times—when we passed the Gambling Bill in the last month—whereby the Minister’s amendments were taken first and a number of my own amendments were ruled out because of the Minister’s amendments. 
The CHAIRPERSON (H V Ross Robertson) 
: I just tell the member that the Minister’s amendments are taken at the end and that has been the practice for a considerable amount of time. It enables other members’ amendments to be taken and voted on. Where there is a conflict members’ amendments may be ruled out if it is the case that the Minister’s amendments are taken first. That is the ruling and I will now declare the vote— 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Mr Chairperson. I do not plan to waste the time of the Committee on this. I seek that the Speaker be recalled. Whatever the practice may be I argue that it is contrary to the clear words of the Standing Order and unless the Standing Orders are suspended that is the way it must be. I seek that the Speaker be recalled. 
JILL PETTIS (Junior Whip—NZ Labour) 
: 
 I raise a point of order Mr Chairperson. Members in this Committee are also aware that when the Chairman makes a ruling that ruling is not to be relitigated. That is exactly what members are doing with regard to the very clear ruling you have made. The relitigation of issues happens too frequently and that is exactly what is happening now. 
STEPHEN FRANKS (ACT NZ) 
: 
 I raise a point of order Mr Chairperson. The member who just spoke has no idea whether we are attempting to relitigate a ruling. I am looking at Standing Order 301 and I am now unsure exactly what it is that you wish to put to the vote in any event. It does appear to me that the Standing Order requires that all amendments in that member’s name to a provision be put as one question. Does that mean that all the amendments on Supplementary Order Paper 151 are about to be voted on or is it all the amendments to a clause or all the amendments to a part? What is the provision to which the Standing Order relates? The provision will dictate perhaps whether some vote yes or no given that all the amendments are to be taken as one question. It seems to me that the contemplation of this Standing Order appears to be that a member can elect to have all his or her questions put as one. I suspect that the drafter of this rule or the practice when it happened assumed that that was all the provisions in a Supplementary Order Paper but I would be surprised if that in fact was the member’s intention. I suggest that you clarify that before we proceed. 
The CHAIRPERSON (H V Ross Robertson) 
: We are dealing with a part by part motion rather than a provision. The reason we do it this way is that other members can have their amendments voted on. Otherwise their amendments could be ruled out. 
Hon ROGER SOWRY (Deputy Leader—NZ National) 
: 
 I raise a point of order Mr Chairperson. I do not think there is much difficulty here at all. The rule is in fact very clear: the Chairperson always puts the Minister’s amendments first as a block— 
Dail Jones 
: Tell that member to sit down. 
The CHAIRPERSON (H V Ross Robertson) 
: While a point of order is being taken there is to be silence. That is in Speaker’s ruling 16/6. 
Hon ROGER SOWRY 
: Mr Field was standing up which was a bit unhelpful. 
The CHAIRPERSON (H V Ross Robertson) 
: I am sorry I did not notice that. 
Hon ROGER SOWRY 
: The rule is quite clear. The Chairperson puts the Minister’s amendments as one when that is requested. You asked the Minister whether she wished to have them put as one. She indicated as I saw her do on two occasions that she did. That is fine. But they are to be put before any other amendments are put. In fact that has always been the case. I like many members have had amendments ruled out of order because they have been inconsistent with the Minister’s amendments. That has been a longstanding tradition. The fact that you have taken other amendments before the Minister’s amendments does not mean that the Minister can then decide that she wants hers taken as one. That is what we contend. Mr Worth has asked that rather than waste time—we could waste time for another 20 minutes with points of order if you want— 
Hon Matt Robson 
: Ha! 
The CHAIRPERSON (H V Ross Robertson) 
: There are to be no interjections during points of order. It is highly disorderly and I refer the member on my right to Standing Order 85/1. That is the member’s first yellow card. 
Hon ROGER SOWRY 
: I think that because you have started to put some of the other amendments before the Minister’s amendments you are bound to put her amendments individually. Even though she wants them to be put as one the Standing Order is quite clear. If you are getting advice that that is not right that advice is totally contradictory to Standing Order 301. So rather than have endless points of order all we are saying is that we should have the Speaker back to make a ruling on that because I have not struck the situation before where you take individual members’ amendments at the beginning and then the Minister’s amendments. All of us have put amendments in on bills. You yourself I think as a member of the Opposition would have put amendments in and had them ruled out because they were inconsistent with the Minister’s amendments as taken during the progress of a bill. 
The CHAIRPERSON (H V Ross Robertson) 
: I just say that if we look at Standing Order 301 we see it is quite clear. It states: “The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question.” The Minister has decided that that in fact is what she wants to do. In the time that I have been Assistant Speaker I have seen a number of times when the Minister’s amendments have been put at the end. The reason is quite simple: by doing it that way it means that other members have their amendments voted on. Otherwise their amendments could be ruled out of order. There the matter rests and I will now put the question. 
Hon ROGER SOWRY (Deputy Leader—NZ National) 
: 
 I raise a point of order Mr Chairperson. You have quoted the first sentence of Standing Order 301—and you are right—“The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question.” The second sentence states: “An amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place of the bill.” That is the issue. My colleague Mr Worth has rightly asked for the Speaker to be recalled because the voting order of the amendments is wrong. What we are contending is quite simple. If the Minister wants the amendments to be taken as one that is fine and should be done upfront. But once you start to take other amendments then you cannot take the Minister’s amendments as one. If that were the case and if that is the advice you are now getting then it was wrong that in the Gambling Bill we just debated for example our amendments were ruled out of order because the Minister’s amendments were taken as one upfront. If the Minister decides to take his or her amendments as one question the question has to be taken either at the end or at the beginning. Standing Order 301 is quite clear. It has to be done at the beginning. 
We are seeking clarification on that point. Otherwise—let me put it this way—we will always argue for an individual’s amendments to be taken before the Minister’s and therefore no amendment would be ruled out of order and we would always have votes rather than amendments ruled out as being inconsistent with the bill. That is why the Standing Order is worded like that. We cannot just pick and choose depending on the bill. I also emphasise—[ 
Interruption 
] The junior Government whip can yell out all she likes. That is fine for her it seems during a point of order but I do not think that it is acceptable. 
My other point is that you have been asked for the Speaker to be recalled. 
Hon TAITO PHILLIP FIELD (Minister of State) 
: 
 I raise a point of order Mr Chairperson. My understanding is that once we commence voting you cannot start allowing Opposition members or any member to call points of order. 
The CHAIRPERSON (H V Ross Robertson) 
: This is about the voting; the voting is the thing. 
Hon ROGER SOWRY (Deputy Leader—NZ National) 
: 
 Point of order— 
Hon TAITO PHILLIP FIELD (Minister of State) 
: 
 I want a ruling on my point of order. 
The CHAIRPERSON (H V Ross Robertson) 
: I gave a ruling on the point of order. This is about the voting. That is why we are in this situation now—because it is about the voting. 
STEPHEN FRANKS (ACT NZ) 
: 
 I raise a point of order Mr Chairperson. I wonder whether some assistance might be derived by looking at the strict meaning of the words in the first sentence. If you were to rule or if we were to get a ruling on what is meant by the word “provision” it may help. If “provision” is the same as “clause” then the outcome for which Mr Sowry is arguing would happen anyway. If instead “provision” in that line means “part” then we still have the difficulty Mr Sowry raises. I suggest that you take it in that order—that we need to look first at “provision”. I believe that the purpose of the rule probably was to have it taken provision by provision and the member could elect to have everything dealt with within a clause. Otherwise if a member whose amendments were taken as one question went first the outcome would be that he or she could then knock out a whole range of potentially valid amendments later. However if the bill is dealt with provision by provision that will not happen within a part. 
The CHAIRPERSON (H V Ross Robertson) 
: I tell members that if amendments occur in the same place then the Minister has preference. We are doing these amendments at the end for that very reason. They have been done at the end before. By doing it this way it means that other members’ amendments are voted on. Otherwise those amendments could be ruled out. To me it is clear and simple. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Noes 43 
New Zealand National 25; New Zealand First 13; ACT New Zealand 5. 
Amendments agreed to. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Mr Chairperson. I note that you have rushed ahead and done what you have just done but my point of order is unresolved. My point of order was that the Speaker be recalled to rule on the view you have taken of Standing Order 301. You have not dealt with that point of order. Instead you have chosen—I would say wrongly with respect—to declare the result of the vote. I am seeking that my point of order be resolved and that the Speaker be recalled. 
The CHAIRPERSON (H V Ross Robertson) 
: The member is free to move that at any time. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I have. I have done it on several occasions. 
The CHAIRPERSON (H V Ross Robertson) 
: The question is that the Speaker be recalled. The Ayes have it. The Speaker will be recalled. 
House resumed. 
Speaker Recalled 
The CHAIRPERSON (H V Ross Robertson) 
: Mr Speaker I have been challenged on my understanding of Standing Order 301 “Amendments of member in charge” which states: “The member in charge of a bill can require that all amendments in that member’s name to a provision be put as one question.” I pointed out that the Minister has the right to place the amendments where he or she chooses to do so and that has been the custom for some considerable time. By doing it that way it means other members can have their amendments voted on. Otherwise those amendments in turn could be ruled out of order. That has not been accepted and you have been recalled to give a Speaker’s ruling. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I suggest that the issue arises around the somewhat unusual wording of Standing Order 301. We are debating Part 1 and a series of members’ amendments have been put to the vote. The issue then arose as to whether the amendments of the Minister in charge of the bill would be put as one question. That is clearly contemplated by the first sentence of Standing Order 301. But it is more complicated than that. I am saying with respect that the Chairperson is not prepared to give meaning to the second sentence: “An amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place of the bill.” I suggest that there has been a clear breach of the second sentence and that there are two possibilities for action. Possibility No. 1 is to suspend the Standing Orders in the face of that breach. Possibility No. 2 which is the possibility preferred by National is that the amendments be revoted on in strict accordance with the second sentence of the Standing Order. 
STEPHEN FRANKS (ACT NZ) 
: 
 The second element is the meaning of the word “provision” as it appears in Standing Order 301 which allows the member to elect to have all amendments relating to a provision to be put as one. If “provision” in that sentence is to be read as “part” then all the member’s amendments may be put at the beginning and subsequent ones will perhaps be ruled out. If it just means “clause” then the interpretation contended by the National Opposition will apply in any event or there will be assistance for it. When the vote was called it is not entirely clear that that was stated. I do not recall the exact words the Chair referred to. It could be that they were to all the amendments on the Minister’s Supplementary Order Paper—in which case “provision” covers more than the part. 
LINDSAY TISCH (Junior Whip—NZ National) 
: 
 I want to proceed further with Mr Worth’s point of order. I refer to the second sentence of Standing Order 301 that “An amendment proposed by the member in charge of a bill is taken ahead of other amendments at the same place of the bill.” We have voted already on two amendments proposed by the Hon Tony Ryall that relate to clauses 2 and 3. If we look at the Minister’s Supplementary Order Paper 151 we see there are also amendments to clauses 2 and 3. My understanding of Standing Order 301 is that the Minister’s amendments to those clauses should have been voted on before the Hon Tony Ryall’s amendments. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 My point is that if the Minister’s amendments are being taken together then that is an impossibility because we would therefore have to have those amendments moved separately and moved forward in terms of the amendments to clause 2 for the Minister and other amendments to clause 2 clause 3 and so on. So it would actually negate the entire purpose of the Minister’s amendments being taken together. The practice has actually been to take the Minister’s amendments together at the end. From an Opposition’s perspective that is actually an improvement because if the Minister’s amendments are taken together at the start that may well actually render out of order a whole sequence of Opposition amendments later on. Of course if that is what the Opposition prefers I am sure we would be happy to oblige. 
LINDSAY TISCH (Junior Whip—NZ National) 
: 
 I hear what the Minister is saying. However when we did the Gambling Bill the Minister’s amendments were taken first. A number of amendments I proposed were ruled out because they were overtaken by the Minister’s amendment and Standing Order 301 states quite clearly that the amendments put forward by the Minister in charge of the bill are taken ahead of other amendments. So what we are seeing here is that members’ amendments have been put and the Minister’s amendments have been put at the end which is in contradiction to the way we handled the Gambling Bill. 
Mr SPEAKER 
: I thank members for the way they have raised this point. It is an interesting one and I have noted the comments made. It has been the custom to put the Minister’s amendments en bloc last. The Chair ruled this on 9 September in respect of the Gambling Bill  
Hansard 
 at page 8469. I think however that the member is right with regard to Standing Order 301. Amendments from a Minister in the same place should be taken ahead of other amendments. There are two Minister’s amendments that fall into this category relating to clauses 2 and 3. The Minister’s other amendments are not at the same place and are not affected by Standing Order 301. Technically then the Minister’s amendments to clauses 2 and 3 should have been taken first but the votes have been taken and the Committee can now go back only by leave. If leave is not forthcoming votes shall be taken on the Minister’s clause 2 amendments first then her clause 3 amendments then the remaining amendments together. If anyone wants to seek leave they can do so before we proceed. 
LINDSAY TISCH (Junior Whip—NZ National) 
: 
 I seek leave that the amendments to clauses 2 and 3 set out on the Minister’s Supplementary Order Paper 151 be taken separately. 
Mr SPEAKER 
: Leave is sought that those Minister’s amendments be taken— 
LINDSAY TISCH 
: Be revoted. 
Hon ROGER SOWRY (Deputy Leader—NZ National) 
: 
 Mr Speaker I think the language is not quite right. With the Clerk’s assistance perhaps you might want to give us the language we need to get ourselves back to a position where we can recast those votes. 
Mr SPEAKER 
: I thank the member. Leave is sought to take the Minister’s clause 2 and clause 3 amendments first then to retake the Opposition amendments to clauses 2 and 3 after that. Is there any objection to that? There is. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I seek your clarification because your ruling creates I think a situation where Standing Order 301 is internally contradictory. What the Standing Order says is that the member in charge of a bill can require that all amendments in that member’s name be put as one question. You are now saying that if there are other amendments to that part then that does not happen and we proceed to take the amendments of the member in charge of the bill bit by bit clause by clause if necessary. I just do not understand this Mr Speaker. It does not seem to me to make sense of Standing Order 301. I assume the import of Standing Order 301 is now that if there are any other amendments to that part then all the Minister’s amendments are taken first and any other amendments are taken subsequently—if they are still in order at that point. 
LINDSAY TISCH (Junior Whip—NZ National) 
: 
 That is exactly the point that I made earlier. We have voted already on the Hon Tony Ryall’s clause 2 and clause 3 amendments which according to Standing Order 301 should actually have come after the Minister’s amendments. That is why I sought leave for the Minister’s amendments to clauses 2 and 3 on Supplementary Order Paper 151 to be voted on separately ahead of the Hon Tony Ryall’s amendments then we would vote on those. That is what I sought leave for—and the member denied leave. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 That is not the point I was making Mr Speaker. 
Mr SPEAKER 
: The Minister might well have to divide the amendments if there are other amendments at the same place. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 Mr Speaker this really does make a nonsense of Standing Order 301. If say we have 30 clauses in a part and there are amendments to every one of those clauses then if the Minister has amendments all of those amendments then have to be taken one by one. But that is not what Standing Order 301 says. What it says very clearly is that the member in charge of a bill can require that all amendments in the member’s name be put as one question and that any amendment proposed by the member in charge is taken ahead of other amendments at the same place of the bill. In this case the place is presumably the part. 
Mr SPEAKER 
: Yes. 
Hon Dr MICHAEL CULLEN 
: We have agreed to take the bill part by part. The amendments are to that part whether it be clause 14 clause 17 clause 21 or whatever the case may be. This is what the House has been doing for some considerable number of years now and the import of your ruling is to change our procedures very significantly indeed from what they have been for a long time now. I suggest to you that if that is so then there is no meaning to Standing Order 301 at all. 
Mr SPEAKER 
: Well let me just say again—[ 
Interruption 
] I ask members to listen for a moment. I say again that technically the Minister’s amendments to clauses 2 and 3 should have been taken first. Right? But the votes have been taken. The Committee can now go back only by leave—I make that point. If leave is not forthcoming votes would be taken on the Minister’s clause 2 amendments her clause 3 amendments then the remaining amendments all together. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I am really having considerable difficulty here because that is not what the Standing Order says. 
Gerry Brownlee 
: Point of order— 
Mr SPEAKER 
: Dr Cullen has the call. The member will come next. 
Hon Dr MICHAEL CULLEN 
: I have the floor and I am trying to understand— 
Gerry Brownlee 
: Point of order— 
Mr SPEAKER 
: I said Dr Cullen has the call. 
Gerry Brownlee 
: Well you might have but he did not call for a point of order. 
Mr SPEAKER 
: The member will be seated. If he makes another comment he goes. I am talking to Dr Cullen. 
Gerry Brownlee 
: Point of order— 
Mr SPEAKER 
: No—I am listening to Dr Cullen. 
Gerry Brownlee 
: Well hang on Mr Speaker— 
Mr SPEAKER 
: I am listening to Dr Cullen. 
Gerry Brownlee 
: On what basis? 
Mr SPEAKER 
: On the fact that he called a point of order. 
Gerry Brownlee 
: He did not. 
Mr SPEAKER 
: He did. 
Gerry Brownlee 
: Well  
Hansard 
 will not show that sir. 
Mr SPEAKER 
: 
Hansard 
 will and I say it will and the member will now be seated. Dr Cullen. 
Hon Dr MICHAEL CULLEN 
: I come back to my example. If there is an amendment to each clause then whether or not the Minister desires to take her or his amendments as one that cannot be done. Standing Order 301 is simply circumvented by moving amendments to the part. Given that we are dealing with a bill part by part that is the place in the bill that we are at at this point and amendments become amendments to the part because the question is that part 1 or whatever it is stand part followed by the amendments that are made to whatever clause it may be—clause 1 clause 14 clause 17 and so on. 
 We have now managed to come up with an interpretation that renders the first sentence of Standing Order 301 in practice non-existent unless there are no other amendments to the part. That is not the way that this has been dealt with up to this point. It may well be why we have decided in the past to deal with those things at the end of each part because it makes more sense than Opposition amendments being knocked out in advance by the Minister’s amendments. 
GERRY BROWNLEE (NZ National—Ilam) 
: 
 I think we could spend a lot of time this evening discussing the finer points of the Standing Order and the circumstances that led us to this point of order in the first place. At the end of the day much of the confusion probably surrounds the fact that the Standing Orders were written for a clause by clause debate. In that event there would not be the confusion that currently exists. What is probably required Mr Speaker is a ruling from you that makes it very clear how these matters should be dealt with. Although we have the ability to say that we dealt with them in the Gambling Bill in one way and in other bills dealt with them in other ways—and Dr Cullen says that for some 10 or more years now we have dealt with them in the way he believes we have and as I think you were trying to rule—it would be far better Mr Speaker if you were to come up with a new ruling given that the current Government has no desire to see any bill debated clause by clause—that would be too difficult for it and probably too embarrassing. For you to come up with a new ruling would be quite a reasonable thing I think. 
RICHARD WORTH (NZ National—Epsom) 
: 
 Mr Speaker I would like to respond to Dr Cullen’s suggestion to you and to point out the obvious flaw in his argument. The Standing Order needs to be read as a whole. It is not a question of giving substantial and greater weight to the first sentence—both sentences have equal weight. Dr Cullen is quite right in what he says the consequence will be if the two sentences are given equal weight. But it is a very simple and cardinal rule of interpretation that Standing Order 301 must be read as a whole. Maybe it is fortuitous that this issue has emerged. Maybe it is contrary to the practice of the House and the House has been following a practice that is contrary to the Standing Order. 
Mr SPEAKER 
: I now understand what the issue is and I have heard the arguments concerned. The “place” is the place within the part at which the amendment stands. This is what occurred on 9 September—on pages 8513 and 8514 in  
Hansard 
—on Part 4 of the Gambling Bill. The Minister’s amendments were taken as two questions. I thank members because I have had an opportunity to consult everything since then. The Chairman has apparently put the question on all the Minister’s amendments. Therefore it is too late to go back and put the Minister’s clause 2 and clause 3 amendments again. Therefore unless leave is forthcoming the only question remaining is that the part stand part. That is the only question remaining unless leave is forthcoming. Does anyone want to seek leave? 
Hon ROGER SOWRY (Deputy Leader—NZ National) 
: 
 Mr Speaker I know my colleague behind me is going to seek leave but I wonder whether for the future when we go through this process you could explain exactly what will occur with Ministers’ amendments. Are we now going to see Ministers’ amendments in future bills adhering to Standing Order 301 and being put upfront on each occasion or are we going to see them being put at the end? 
Mr SPEAKER 
: If the amendments are at the same place they will go upfront and any Opposition ones thereafter will be ruled out. That is quite specific according to the Standing Order. Of course the Standing Orders Committee is looking at this whole thing. This is a very interesting point. Mr Tisch wanted to seek leave. 
Hon ROGER SOWRY 
: Before we do that Mr Speaker can I just say that I think this is quite a substantial change. 
Mr SPEAKER 
: It is not a change but it is an interesting point and I can see the point that is being made. 
Hon ROGER SOWRY 
: So from now on when we go into the Committee of the whole House a Minister’s amendments will be where the Minister requests them to be moved as one. Let us say that we are dealing with Part 1 and the Minister has amendments—to use Dr Cullen’s example—to clauses 7 and 14 when we come to vote on the part the Minister’s amendments will be put first. I am just trying to understand—if the Opposition— 
Mr SPEAKER 
: If they are in the same place. 
Hon ROGER SOWRY 
: Yes let us come to that. Let us say that a part has 14 clauses and within that part the Minister has amendments to clauses 7 and 14 the Opposition has amendments to clauses 6 and 12 and the Minister requires his or her amendments to be put as one question. Do I take it that the Opposition’s amendment to clause 6 would be put then the Minister’s amendments to clauses 7 and 14 would be put as one question then the Opposition’s amendment to for example clause 12 may or may not be put depending on whether the Minister’s amendments were passed? If the Minister’s amendments were passed then it may be that the Opposition’s amendment could not be put because the part was already amended? 
Mr SPEAKER 
: This is a very interesting question. From the example the member has given it does not seem to me that they would be in the same place. I will have a look at this. I will look at the whole transcript and if necessary I will come back with something further. Unless leave is forthcoming the only question remaining is that the part stand part. 
STEPHEN FRANKS (ACT NZ) 
: 
 From here—I may have missed a part of it—am I to take it that the leave when it is sought will be on the basis that the word “provision” where it appears in Standing Order 301 is being read as if it meant “part”; if so we have the consequence as you have said that the precedent established would be that a Minister’s amendments would be put first and they may well rule out many others. 
Mr SPEAKER 
: No leave can be sought to do anything. If leave is granted that can apply for this particular case. 
STEPHEN FRANKS 
: Can I just complete my point Mr Speaker. The difficulty that I think you have portended and that the Hon Dr Cullen was referring to is not there if “provision” is read in its natural meaning recognising that this Standing Order would have been drafted by people before part by part debates were the norm. If “provision” means “clause” then the difficulty is very much reduced. 
Mr SPEAKER 
: I agree with the member that because we have clauses and parts and that type of thing it might well be something that the Standing Orders Committee has to look at. I say again that unless leave is forthcoming the only question remaining is that the part stand part. 
LINDSAY TISCH (Junior Whip—NZ National) 
: 
 I seek leave that the amendments to clauses 2 and 3 set out on the Minister’s Supplementary Order Paper 151 be voted on separately. 
Mr SPEAKER 
: Leave is sought. Is there any objection? There is. So the only question forthcoming is that the part stand part. 
DAIL JONES (NZ First) 
: 
 I raise a point of order Mr Speaker. There is another question. The other question is that if leave is not given then the question cannot be put on clauses 2 and 3 because this amendment is surely for the benefit— 
Mr SPEAKER 
: No it already has been. 
DAIL JONES 
: Not on the Minister’s— 
Mr SPEAKER 
: I am sorry it has been. I have been advised by my people in front of me that it has been. The only question forthcoming is that the part stand part. I declare the House in Committee again on the Supreme Court Bill. 
In Committee 
Debate resumed. 
Part 1 Supreme Court of New Zealand ( 
continued 
)  
A party vote was called for on the question  
That Part 1 as amended be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 52 
New Zealand National 26; New Zealand First 13; ACT New Zealand 5; United Future 8. 
Part 1 as amended agreed to. 
Part 2 Amendments repeals transitional provision and savings 
The CHAIRPERSON (H V Ross Robertson) 
: I call the honourable member Murray Smith. 
Hon ROGER SOWRY (Deputy Leader—NZ National) 
: 
 I raise a point of order Mr Chairperson. I have to ask how we get into a situation whereby the largest Opposition party has two members seeking the call who have been on the select committee but we end up with a member of a junior Opposition party getting the call. 
The CHAIRPERSON (H V Ross Robertson) 
: I know what the member is going to say. Can I just say to him that I looked I could not see anyone out of the side of my eye and Mr Smith was— 
Dail Jones 
: Come on! 
The CHAIRPERSON (H V Ross Robertson) 
: I am giving a ruling. The second part is that under Speaker’s ruling 23/3 once the call is given I cannot take it away. I have noted now that you have raised a point of order. I am sure that the call will go to that side next time but I have called the honourable member Murray Smith. 
MURRAY SMITH (United Future) 
: 
 I want to make reference to clause 48 relating to the transition period. This matter caused the select committee some concern. The bill initially provided that it would come into effect 28 days after receiving the royal assent. That time limit for bringing in the situation was very very narrow. The difficulty that was clearly going to arise was that there would be conflicts of interest. Court of Appeal judges who are the ones most likely to be promoted to the Supreme Court could well face the situation where as the sole members on the Supreme Court bench they were looking at decisions on appeal that they themselves had given judgments on in the lower court. 
The initial proposal appeared to be that temporary judges would be used in that instance. That was clearly undesirable because given that most of the Court of Appeal judges may well end up on the Supreme Court it would mean that in the early stages almost every decision being appealed would be a decision in which former Court of Appeal judges who were on the Supreme Court had participated and therefore temporary judges would have to be used. The difficulty that that would create is that the court would get off to a false start. It would look like a Mickey Mouse court because the full-time judges are not sitting on almost anything at all. 
A number of dates were proposed in order to try to get round that problem: the date that the appeal in the Court of Appeal was lodged the commencement of the hearing in the Court of Appeal the completion of the hearing in the Court of Appeal the date of issue of the judgment and the date of lodgment of the Supreme Court appeal. United Future took the view that there was really only one date that was relevant and that was the date upon which judges could be changed; a Court of Appeal hearing would not have commenced and judges who were not going to be on the Supreme Court could be appointed to hear that case in the Court of Appeal. 
In the end the select committee accommodated that to a large extent but decided that the date would be the date of completion of the hearing. That may give rise to a situation where judges who have completed their hearings then find that they are on the Supreme Court and therefore are facing their own judgments. However we were assured by the select committee officials that the vast bulk of Court of Appeal cases were dealt with within a 2-day period. It also appeared that the Supreme Court judges would be appointed prior to the commencement date of the bill. That certainly seems to be the case now given that the bill will commence on 1 January 2004 but the hearings will not commence until 1 July 2004 and given that the Court of Appeal judges who will replace those Supreme Court judges will also be known. It also appeared that given the limited number of cases that were likely to be appealed to the Supreme Court and given the workload of the Court of Appeal it would be possible to ensure that any prospective Supreme Court judge did not hear a case in the Court of Appeal and in fact that no cases would be heard in the Court of Appeal during the critical period. 
It was for that reason and particularly because we are really talking about only 2 days that United Future went along with the proposal. We did subsequently as will be known suggest to the Government that the date be extended—that instead of it being 28 days after the date of assent the date be put out. We are now faced with a situation where it is likely to be some 2 months after the royal assent before the bill comes into effect and a further 6 months after that before the first substantive cases are considered. Therefore it seems that that problem has really been abated. 
The second clause that United Future had real concerns about was clause 51 which provided that the rules of the Court of Appeal would apply until new rules had been developed. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I thank the Chair for the opportunity to contribute to the debate on Part 2 on behalf of the National Party. I start by observing with a degree of sadness that the contribution Labour members have made to the debate at the very highest would have to be described as minimal and ungenerous. Indeed it is my recollection that only one Labour member of Parliament has spoken apart from those members who moved closure motions and that was the Attorney-General who has nominal charge of the bill. That is a pity in the context of Part 2. 
Lindsay Tisch 
: I raise a point of order Mr Chairperson. I bring your attention to Speaker’s ruling 51/5 which relates to continuous interjections by members. Two members—the senior and junior Government whips—have in the last minute made a constant barrage of interjections against my colleague Richard Worth and I ask that you rule on this matter. 
The CHAIRPERSON (Hon Clem Simich) 
: There is no need for me to rule. Interjections are usually always going on in the Chamber. 
Lindsay Tisch 
: I referred to 51/5. 
The CHAIRPERSON (Hon Clem Simich) 
: Yes interjections need to be rare and reasonable. The interjections were perhaps a little unreasonable and too constant. 
RICHARD WORTH 
: I am not concerned by a barrage of interjections from people like the senior Government whip. That is to be expected from a person who does not have the wit or the intellect to make a substantive contribution to a debate. 
I want to talk about Part 2 and not be further distracted. I want to talk about the lack of contribution that Government members have made to Part 2. The last significant piece of constitutional law passed was the Constitution Act which was passed in 1986. On that occasion every member of the House voted in favour of it. The voting on Part 2 of this bill which is a significant constitutional part will have a margin of maybe three votes. It will be the slenderest of margins. 
In the calls that I hope to be given on Part 2 I want to focus primarily on clause 43 which amends section 57 of the Judicature Act and in particular provisions relating to the composition of the Court of Appeal. Clause 43 proposes a new subsection for section 57 and deals with the constitution of that court. I would like to deal with the topic in the context of the announcement by the Attorney-General and to some extent pre-empted by the Prime Minister as to what the grand plan is for the composition of the new Supreme Court. The proposal that the Prime Minister first advanced and that her faithful follower the Attorney-General seems determined to implement despite the involvement of a Clayton’s advisory panel is that the judges of the Court of Appeal will simply be transmogrified into Supreme Court judges. 
The Court of Appeal is probably the court of record in our hierarchy that has the greatest pressure in the context of doing intellectually challenging work. If it is the plan to move those judges from the Court of Appeal to the new Supreme Court and leave one remaining the Court of Appeal will be gutted yet it will be the Court of Appeal that remains as the body that is destined to resolve the most significant pieces in terms of the hurly-burly of court cases that require appellate review. 
Steve Chadwick 
: Absolute doom merchant. 
RICHARD WORTH 
: The member opposite talks about doom merchants. I think in response to her interjection that it is a huge sadness that the new Supreme Court takes life under a significant cloud. It is a cloud because there is no real support from so many members of the Committee for these changes. It will be—or should be—one of our great constitutional structures; our final appellate court. 
Steve Chadwick 
: Why didn’t you support it? 
RICHARD WORTH 
: The member asks why National did not support it. If she had been present as she most likely was and more important if she had listened she would have heard a series of what I suggest are compelling arguments in favour of the retention of the current structure. 
Hon TAITO PHILLIP FIELD (Minister of State) 
: 
 I want to acknowledge the contribution by the last speaker the member for Epsom. He is an acknowledged experienced lawyer and I have certainly taken on board his contribution but I believe that New Zealand has come to a stage where we need to look at the competency of our own people and the legal minds that New Zealand has to offer. I was very interested to see the committee report not only in relation to the Australian and New Zealand judges’ contribution to New Zealand and Australia but also in relation to the contribution those judges make to the Pacific region.  
I want to go through some of the lists that have been compiled. Eleven countries which is a significant number rely in terms of the highest court decisions that they make—although they still have the option of the Privy Council—on New Zealand and Australian judges. That is an indication of the maturity and the competency of those who are trained in the law in New Zealand. I have every confidence that the Attorney-General as the former head of that distinguished faculty of law at Waikato University has assessed that we in New Zealand do have the competency for the training of our lawyers—and ultimately judges—and the quality judgment and integrity of our judges to form a competent Supreme Court for this nation. 
Canada and Australia were British colonies and dominions for as long as New Zealand has been. If it is good enough for those countries in terms of their histories to now come to the conclusion that it is time to cut the umbilical cord from the mother country in relying on the Privy Council for their final legal judicial decisions then the time has come for us to do the same. 
 We should have our own people who are competent not only in relation to law but also in relation to knowledge of our own local environment and I take on board the fact that there is a Treaty of Waitangi. Tangata whenua are concerned in terms of the relationship with the Treaty of Waitangi and with the Crown. But I would like to say that this bill does not mean that that ends the relationship and the obligations that the Crown has with tangata whenua and in the Treaty of Waitangi. There are provisions and this Government is navigating cautiously and helpfully in relation to those issues. I believe that the Government is taking the right course in terms of consultation both with Maori and the wider New Zealand communityto look at setting up our own Supreme Court and using our own people who have the competency and integrity to carry the job out adequately in terms of our needs. 
RICHARD WORTH (NZ National—Epsom) 
: 
 I raise a point of order Mr Chairperson. Under the Standing Orders we ascribe a degree of status to the member in charge of the bill. The member in charge of the bill is given a favoured seat in the Chamber. The member in charge of the bill is supposed to listen alertly to the debate— 
The CHAIRPERSON (Hon Clem Simich) 
: That is not a point of order. 
RICHARD WORTH 
: May I complete the point of order so that you can form a judgment about the merit of the argument that I am making on the point of order? 
The CHAIRPERSON (Hon Clem Simich) 
: Please be seated. That is not a point of order. 
RICHARD WORTH 
: Could I just explain what the point of order is— 
The CHAIRPERSON (Hon Clem Simich) 
: You have not come to a point of order yet. 
RICHARD WORTH 
: It is this: the member in charge of the bill in procedural terms has a duty I suggest—first to listen to the argument; second and more significant to evaluate the argument on the amendments put by members. We have been treated to the sight of the Attorney-General the member in charge of the bill reading magazines. She should be listening— 
Hon Margaret Wilson 
: I have this bill! 
RICHARD WORTH 
: Oh the Committee I suggest is— 
The CHAIRPERSON (Hon Clem Simich) 
: The Minister makes no comment on members in the Committee and nor should members make comment on the Minister. You do not know what the Minister is doing. She may be thinking very deeply about this bill. What you say is fine but it is not a point of order. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 Part 2 deals with amendments repeals transitional provisions and savings. I wonder whether the Minister who lodged a Supplementary Order Paper today—and quite an extensive one; one that has some impact on Part 2—might take a call to explain the impact of those new provisions she has tabled because of course those did not come before the select committee. One has not necessarily had the chance to read them carefully and at the same time the opportunity to question officials about their impact. 
I have had a call today from people involved in what will possibly become the subject of an appeal to the Privy Council regarding the foreshore and seabed case. They wonder whether the provisions in the Supplementary Order Paper lodged today will have any impact on their desire should they see fit to carry their appeal through to the Privy Council. Maybe the Minister might take a call and we might not get there tonight but I am sure she will oblige in the next session of the Committee. 
I want to acknowledge Minister Taito Phillip Field. I am very pleased that he took a proper call and made the comments that he did. I have great respect for him and for the things he said. I have to say though that I found it difficult to reconcile his comments about New Zealand having the competence to form our own highest court of appeal. He said that we have our own people who are competent to form a strong bench—those are not exactly the words but that is essentially what he said—and it is time we broke the ties with the Privy Council because we can do what Canada and Australia have done: that is show our capability and our own competence here. 
 I do have difficulty with those statements on two counts. The first is—and my colleague Pansy Wong referred to this earlier—to do with the honourable member’s pleadings or petitions in respect of the case that was so important to his own Western Samoan people and how the Samoan community recently sought to have the impacts of what was done to that Privy Council decision reversed. I point out to him that in effect that was not so long ago. That sort of thing could happen again in New Zealand. It happened in New Zealand in our highest court and justice was seen by the Western Samoan people to be delivered in the form of the Privy Council decision. I had a bit of difficulty with his comments but I recognise that he is entitled to make them. 
I also had difficulty on another count. I think it is so ironic that members of the Government stand up and talk about our own competence in New Zealand to establish the highest court in our court structure. They say we have the people in our own judiciary who have the competence to form the Supreme Court yet it is that very Government that has shown its disdain for those judges who are likely to sit on the new court. It has shown it has no respect at all for the competence of those judges by saying it is going to step in and legislate because it does not like the Court of Appeal’s decision on the foreshore and seabed case. It is so ironic. This irony has been pointed out to me a number of times by Maori during the Government’s consultation hui on the foreshore and seabed. 
This is a Government that on the one hand says we have the competence in New Zealand that we are grown up and have the judges to form our highest court of appeal yet on the other hand in one fell swoop on the day after the Court of Appeal delivers a pretty substantial and significant decision in relation to rights that Maori assert in the common law indicates by the action it is going to take on the foreshore issue that it has no regard whatsoever for the competence of those judges it is now going to appoint to the new court. 
Hon MARGARET WILSON (Attorney-General) 
: 
 Part 2 deals with very important provisions although it is only a short part of nine provisions dealing with repeals amendments and transitional arrangements. I just want to draw the Committee’s attention to that fact and to congratulate the select committee again on its consideration of the bill and also on ensuring that there would be preservation of the ability to appeal to the Privy Council in the case of decisions that are delivered by the Court of Appeal after the commencement of the legislation. I think that is an admirable addition to the bill because it puts beyond doubt that all matters that are currently there will in fact be attended to in a timely fashion. 
The second matter has been referred to by Mr Smith and that was the concerns that were expressed in terms of giving sufficient time for the introduction of the running of the new Supreme Court. That is why the provisions are there in the Supplementary Order Paper to make it clear that while the Act comes into force on 1 January 2004 which puts beyond doubt that that is the date it comes into force it also provides—sensibly I think—that the first cases will not be heard before 1 July although matters relating to applications etc. may well be. 
So those amendments and some other small technical amendments particularly to the schedules to ensure that we have covered all the consequentials are contained within the legislation. As I said of course I am interested in those who talk to the matters in the bill or to the amendments. 
Progress reported.