Mapp Wayne: Electoral (Vacancies) Amendment Bill — First Reading Second Reading Instruction to CommitteeCWH In Committee Third Reading 
Mapp Wayne: Electoral (Vacancies) Amendment Bill — First Reading Second Reading Instruction to CommitteeCWH In Committee Third Reading 
[Volume:610;Page:7732] 
Dr WAYNE MAPP (NZ National—North Shore) 
: 
 The National Party is opposed to this legislation for two reasons. One the law itself is clear and two the principle of retrospective legislation is fundamentally wrong in this instance. I will firstly deal with the issues of law that came up in part through the point of order but also obviously in a more general sense through the Privileges Committee. It is about the application of section 55. I find it extraordinary that we can have the Solicitor-General and the Clerk of the House saying the law is clear and unambiguous and we can have that consented and agreed to by the majority of the Privileges Committee but who dissents? It is all the Labour members. 
I will single out a particular individual for saying that the law was ambiguous and that is the Attorney-General. She is a former professor of law. Her chief adviser is the Solicitor-General. Is she now saying to the country that she does not have confidence in—there really can be no other interpretation—her chief legal adviser? The Solicitor-General after all said that the law was unambiguous and that the seat is vacant. We have yet to hear the Attorney-General speak in this Parliament on this matter. When the Attorney-General concludes against the advice of the Clerk and the Solicitor-General that the law is in fact ambiguous and uncertain and therefore the seat is vacant at the very least one would expect the Attorney-General to be participating in the debate. How can the country have confidence in the judgments of the Attorney-General when she disbelieves categorically the views of her chief legal adviser? 
Section 55 is clear. The situation that Government members have raised about dual nationality and so forth is irrelevant. There is a different set of rules relating to members of Parliament. Those people in our community who seek to represent the nation and to pass laws have additional duties placed upon them and that is right and proper because we are making laws for New Zealanders. Parliamentarians and Cabinet Ministers of which Mr Duynhoven is one—or at least was one—make public policy for this nation. That is why there is a higher burden on us than there is on general members of the public. We are all here voluntarily. None of us had to come here. We chose to do so because of our views on what we think is right for our country. It is therefore proper that we should have one loyalty and one alone. 
I will now turn to the application of section 129 and the role of the Speaker. I know Mr Speaker that you are going to reconsider that properly but I ask for your consideration on this—and I am sure you will be taking advice from the Clerk. The Privileges Committee by majority said that the seat became vacant on 11 June so the question then becomes whether Mr Duynhoven is a member of Parliament now or whether his actions as at 11 June created a vacancy at that point in time. The question then becomes how does section 129 apply: is it the Speaker making a decision or is it the Speaker implementing the reality of the vacancy which in fact occurred on 11 June 2003 as reported in page 13 of the Privileges Committee report? That is an important issue and I know that the Speaker will be considering it seriously. If the situation is that the Speaker is simply making a declaratory act based on the Privileges Committee report then the seat is already vacant and Mr Duynhoven is no longer a member of Parliament. 
I guess that in some respects was almost recognised by the Government in the last vote when the Government did not cast a vote for Mr Duynhoven. It recognised the risk of Mr Duynhoven even casting a vote because he may not actually be a member of Parliament at all. He is not sitting in the House. We heard him say on television that he should not be here. Again that raises the presupposition that he is no longer a member of Parliament. 
This matter then turns to the role of retrospective legislation. As a matter of constitutional law this Parliament is supreme. It seems to me that what the Government is doing right now is actually saying that a person who is no longer a member of Parliament can be a member of Parliament—that Parliament itself by a statute is effectively electing a member of Parliament. Maybe that is what the Government should be doing though most people would recognise it as a constitutional travesty. Although Parliament conceivably does have that power surely we should not go around passing laws that say: “Joe Bloggs who is not a member of Parliament is now a member of Parliament.” Obviously when put like that it sounds like the absurdity it is but it seems to me that is precisely what Parliament is seeking to do in this situation. 
That is why National is so insistent on the by-election. We heard the absurd situations raised by Mr Donald about why a by-election was a bad idea and they were all about the electoral result. They had nothing to do with principles or the law itself. We had the same situation from the Government which should know better than to say: “Well Harry will win anyway. Why put people to the bother?”. In that case why even have elections at all? Why not just go by opinion polls? Whenever the opinion polls changed we would just change the Government. It is self-evident that that is an absurd proposition. The decision as to who belongs in this Parliament and who does not belongs to the people and all of us have to take the consequences of that decision on board irrespective of the outcome. 
It might well be that Mr Duynhoven standing again—and no one has suggested that he cannot stand again—would be re-elected. Would I be amazed and surprised if that was the outcome? I suspect not. Would his majority go up? Who knows? Would it go down? Quite probably. That is irrelevant; it is completely beside the point. There is a proper procedure here and that is a by-election. Is it an extraordinary event? No. Has this country had by-elections before? 
Shane Ardern 
: Yes. 
Dr WAYNE MAPP 
: I see Mr Ardern nodding his head. Yes the country has had by-elections before. It is a reasonable thing to do. When a situation arises in Australia that is always the result. No one in Australia would even conceive of putting legislation into the House to declare a person who is no longer a member of Parliament to be a member of Parliament. The result is clear unambiguous and obvious: there is a by-election and the results of that by-election are whatever they are. That is how a democracy works. 
So when you Mr Speaker take the advice of the Clerk and consider the application of section 129 it is obvious what the result should be: the seat is vacant there should be a by-election and the consequences of that are whatever they are. That is how a democracy works. Nothing could be plainer than that.