Points of Order — Standing Order 38—Minister Not Present Parliament Buildings—Media Access Standing Order 38—Minister Not Present  
Points of Order — Standing Order 38—Minister Not Present Parliament Buildings—Media Access Standing Order 38—Minister Not Present  
[Volume:624;Page:19679] 
Points of Order 
Standing Order 38—Minister Not Present 
Hon RICHARD PREBBLE (ACT) 
: 
 I raise a point of order Madam Speaker. This is the first opportunity to raise this point of order. When the House adjourned last night points of order could not be raised because the bell was ringing. But I now most certainly do raise a point of order and believe that you should rule on it and rule on it right now. 
There has been an understanding in this House that it is the duty of the Government to provide the quorum. You will find many such statements made by Opposition members and made by Government members. The Standing Orders Committee in my time decided to reduce the quorum so it is now down to three but one of the requirements of the quorum is that a Minister of the Crown ought to be present. 
If it is established that it is parliamentary for the Government to collapse the House just by withdrawing its Ministers then the executive is basically saying it can do that at any time it chooses. In this case it was for a dinner but it might be because the questions asked are embarrassing or for a whole variety of reasons. But if it is now established that the Government can close down Parliament at any time it likes I put it to you that we are no longer a parliamentary democracy; we are some Third World country. 
I do say to you Madam Speaker that when you went to the Governor-General very recently you said you were going to uphold the privileges of Parliament. I believe that you should do so now and publicly state that it is unparliamentary for the Government to withdraw Ministers deliberately just because it does not suit them to be subject to parliamentary business and that it is particularly unparliamentary to do that on a day set aside as members’ day. 
It may be that the Government does not want to discuss the state of our polytechs but members on this side do and we have support from the Standing Orders that say that reports of select committees should have time found for them. We finally found some time last night only to have the matter withdrawn. 
I think it would be extremely unfortunate if the Speakership were to adopt the view that the executive can make this arbitrary use of power with no rebuke from the Speaker. I cannot imagine that a Speaker of the British House of Commons would not admonish Ministers in the strongest possible terms for collapsing the House just because it suited the executive. I invite you so to rule. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 Standing Order 38 is quite clear in this respect. There is no quorum requirement at all now except of course that a Minister has to be present and presumably somebody has to be present in the Chair. Apart from that there is no requirement for anybody else to be present. When we did have a quorum requirement—as I managed to demonstrate quite conclusively once as senior Opposition whip—on a members’ day it was actually the responsibility of the Opposition rather than the Government to maintain the quorum. Mr Birch found that out much to his surprise when the Government withdrew from the Chamber after the Opposition had been threatening quorum calls. 
Last night was a most unusual situation where one party in a multiparty House refused to be reasonable about the conclusion of the business around members’ bills which the Government was perfectly prepared to see concluded. All parties were prepared to see the House rise at that point except for the ACT party and the Government was forced to use the only mechanism available to it to ensure the most orderly possible procedure—that is to ensure that a State dinner did not occur just a few metres away from the Chamber with members possibly going backwards and forwards between the Chamber and the State dinner. 
Finally I would perhaps have greater sympathy for Mr Prebble’s argument today had he not been on the 8.30 flight to Auckland last night. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I am concerned that the Leader of the House has made light of what is a very serious point of order. Standing Order 38 states quite explicitly: “A Minister must be present during all sitting hours of the House.” Yesterday evening we saw the Leader of the House quite blatantly and quite proudly break the Standing Orders of this House. I put it to you Madam Speaker that if the Leader of the House can quite blatantly abuse a Standing Order because it suits the Government to do so then effectively the message to all members of this House is that if a Standing Order does not suit them they should just break it. Equally it sets an appalling example to the people of our country when we as lawmakers say in effect that we break rules when it suits us. 
The more important constitutional point that Mr Prebble rightly raises is that this Standing Order has now been used to set a dangerous precedent which effectively means that the Government can collapse—shut down—the House at any time it wishes. If a confidence vote is coming up that the Government thinks it may lose it just needs to withdraw every Minister and instantly without any points of order the House is shut down. It can do the same if there is an embarrassing bill on members’ day. 
I have a bill in the ballot. My rights have been undermined because members’ ability to advance legislation depends on their bills being drawn in the ballot and only bills drawn in the ballot can be debated. Effectively what the Government did last night through the subversion of the Standing Order was to take away 2½ hours of members’ time. 
This democracy of ours survives on conventions. We have had this Standing Order or similar provisions going all the way back to 1853. I sat in the library this morning and went back to the Standing Orders that were first established for our Parliament in 1853. At no time in those 150 years has this stunt been pulled before. 
A dangerous precedent has been set. The right thing for the Leader of the House to do is to stand and apologise to this House for breaking the Standing Order and he should set aside 2½ hours of members’ time to make up for such a blatant breach. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 That is a speech I really must respond to on a factual basis. In fact it was not a result of the Government action at all that any time was lost for members’ business in relation to members’ bills. First of all we had started the last member’s bill on the Order Paper and therefore that action did not affect the number of bills to be drawn in the ballot today. Secondly the Government sought leave twice—twice—to finish all members’ bills on the Order Paper last night so that there would have been no time subtracted in the future for the consideration of members’ bills. The only business the House was not able to discuss was the reports of select committees. I finally note that during the dinner function the deputy leader of the National Party thanked me for the fact that members were able to attend the dinner as a result of my action. 
Madam SPEAKER 
: I call Sue Kedgley. [ 
Interruption 
] She stood first I am sorry. The member will be heard but the other member stood first. 
SUE KEDGLEY (Green) 
: 
 Now that the Minister has confirmed that he did use a mechanism available to him to close down the House last night which precluded the completion of debate on my bill and other issues on the Order Paper it would be helpful Madam Speaker if you were able to give us a ruling as to under what circumstances you would consider it acceptable for a Minister to use that mechanism to close down the House and under what circumstances you would consider it unacceptable for a Minister to use such a mechanism. I think that that would be very helpful. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 Madam Speaker before I get to my point of order I want to address your idea of seniority in this House. If you thought that a member’s rising to his or her feet first was some sort of entitlement to precedence then obviously you would have called the last speaker before Dr Cullen who had already spoken once on the point of order. That is pretty obvious really. I do not want to be difficult in this House as some members are wont to be but I am bound to point out that we have a thing called seniority and that you should uphold it. 
The second point I want to make is that New Zealand First agreed to the House being lifted because we had in this country the president of the biggest Islamic country in the world. I was somewhat astonished to see the desire of one party which spends all its time talking about the need for foreign intervention foreign aid and foreign subjugation in terms of its policies for foreign exports not to have the House rise. I think there is a precedent for the action taken. It is a very unfortunate one which I think happened in 1904. So it is 101 years since it was last tried. But my real point is that if a party does object then the House should continue to proceed with its business. In that respect I think it is rather disappointing that the rights of the House as enunciated by one party—which nevertheless are still the rights of the rest of us—were ridden over in a very roughshod way. That is the point I want to make. 
STEPHEN FRANKS (ACT) 
: 
 My point follows closely on the theme adopted by the member who has just resumed his seat. Madam Speaker I draw your attention to the definition of “leave” in Standing Order 3 which states that it “means permission to do something that is granted without a dissentient voice”. The Leader of the House suggested that his misuse of Standing Order 38 was OK because as he said all the other parties wanted to see that action happen. 
First I am not sure that that is true. As I understand it other parties were told: “If you don’t go along we’ll collapse it anyway.” So the consent or approval that he secured might have been against the background of a threat just to wield power. But that right to deny leave is in fact the right of any member who wants the House to continue; it is not the right of the parties. I think that until the Standing Orders decide that this Parliament is simply a congress of parties the Leader of the House should not use the argument that other party representatives were happy with his actions—and I am not sure that they were—to justify something. 
I urge you to invite him to consider this and suggest that he create a convention out of this incident that the House cannot be collapsed unilaterally and adhere to it. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 The first point I make is that I made reference to this issue at the dinner last night for the Indonesian President largely to point out in a fairly sarcastic way that there were very few members of Parliament at the dinner. Furthermore there were even fewer Ministers at the dinner. So the question is: where were those Ministers? If they were in their offices working why could they not have been in Parliament working? Given that the business of the House would have been the select committee reports and the National Party had produced a speaking list that went well into that list of select committee reports the actual disruption to the dinner would have been minimal. 
The real point of Dr Nick Smith’s point of order was that there are numerous rights within the Standing Orders for members to exercise. If they were recklessly applied by all members of the House then there would be no business of the House. It is the conventions that apply to the way in which the Standing Orders are used that allow the House to do the business that members are elected to do. Dr Cullen has taken hold of a Standing Order which has never been used in this way before and grabbed powers for the Government that mean that Dr Cullen or Helen Clark or whoever might be running the country at the time would be the person who determines whether Parliament sits. That is unacceptable. It also cuts right across the rights of elected members which you particularly are charged with protecting. 
When we were told yesterday that there was a likelihood the Government would collapse the debate we assumed that meant what it usually means—that the Government would pull its speakers so that the time that is taken over any bill or discussion is reduced. At no point did we think it would mean that the Government would fail to provide a Minister to the House and effectively shut the place down. It is the use of Standing Order 38 to shut down Parliament for the convenience of the Government that causes the most concern for Opposition parties. The suggestion is that Dr Cullen should apologise for using this Standing Order in such a reckless manner. The problem is that if he refuses the opportunity arises for other members to use the Standing Orders in an equally reckless manner. There can be no winners out of the development of that sort of circumstance. 
Madam SPEAKER 
: I will hear two more contributions and then I will rule. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I will respond to one point that Mr Franks made. Mr Franks rightly made the point that leave can be denied by one member of the House. But the implication of what he said was that when leave is denied for something—and leave is sought for many things—the Government is not able to use any other mechanisms. Of course frequently the Government uses other mechanisms when leave is denied. To take a very obvious example which we may well see some time in the near future—[ 
Interruption 
] 
Madam SPEAKER 
: Will the member please leave the House. A point of order is being spoken to. As the member is quite aware it shall be heard in silence. 
Hon Bill English withdrew from the Chamber. 
Hon Dr MICHAEL CULLEN 
: For example the Government may seek leave to have a Supplementary Order Paper that is outside the scope of the bill considered as part of the bill. If that leave is denied the Government does not just say “Well that’s it.” Normally the Government would move a motion in order to enable the Committee of the whole House to consider it and would then use the majority at the cost of a debate to overtake the situation where leave has been denied. I think Mr Frank’s assertion that simply because leave is denied for something the Government cannot use any other leave that is available to it to achieve its objectives is one that cannot stand because it would be quite a dangerous assertion within the proceedings of Parliament. 
Hon RICHARD PREBBLE (ACT) 
: 
 I am now even more alarmed after hearing Dr Cullen’s contribution. I will not quote his words but the effect of what he said is that Standing Order 38 is a mechanism whereby the Government can get its own way if it does not get it by other means and that Governments are always entitled to do that. That is an interesting notion. If we read Standing Order 38 we see that it is actually an instruction. It is an instruction from this House to the executive. It states that a Minister must be present. That is an order. Last night the Government defied this House and defied the Standing Orders. 
I have been giving some thought as to whether it was such a serious defiance that it was a breach of privilege. You Madam Speaker may yourself consider referring the matter to the Privileges Committee. I think so because if we look at what amounts to contempt—and I will take just one example—we see that it is something that obstructs members from carrying out their duties. The ultimate obstruction to carrying out our parliamentary duties is something that prevents us from exercising free speech. If I feel strongly about it it is because I was the member exercising my right of free speech. It was my speech that was interrupted. I take grave exception to the Minister interrupting my speech. I was not invited to the President of Indonesia’s dinner—not that that has anything to do with it; I would have had the same view even if I had been invited. [ 
Interruption 
] Why should I be required to stay here? I think that that was a reflection on me. 
I want to come back to the point I am making. As far as I know Standing Order 38 has never been interpreted by any Speaker but I put to members that the interpretation by a Speaker who is upholding Parliament should be that it is an instruction to Ministers. Where there is evidence that Ministers have deliberately broken it then there ought to be some penalty. I think there is quite a strong case here that the Leader of the House should be referred to the Privileges Committee because he created the ultimate obstruction to this House exercising its duties. He arranged for all Ministers not to be here so that this House could not meet. Not to rule that would be to condone what Mr Cullen is now telling us—that there is a new device and that any Government at any time whenever it chooses can close down this House. I cannot see any other Parliament that calls itself a Parliament accepting that sort of arbitrary power. 
Madam SPEAKER 
: Ruling on the point of order I thank members for their contribution. As has been noted Standing Order 38 sets out the procedure for the Speaker to follow if no Ministers are present in the Chamber. That procedure was followed. If members wish to criticise the Government for the action it took then they are perfectly entitled to do so. If members think that the Standing Order is defective they can raise that with the Standing Orders Committee and I suggest they do that. 
I further note on the question of quorum that there are no quorum requirements today except in so far as that for the House to function there must be a Speaker and a Minister present. I also note that it is not for the Speaker to comment on the appropriateness of the Government or Opposition parties utilising the rights that are open to them under the Standing Orders. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Madam Speaker. I ask you to think very carefully about the ruling that you have given us today fairly quickly. The first line in Standing Order 38 states that a Minister must be present during all sitting hours of the House. That is not debatable. It is not optional—it is a requirement. The Government deciding that it determines when the House sits—not anybody else not the Speaker not the rest of the members; just the Government—is the point being made here today. The right for members to participate in the parliamentary debate is what is also at stake here today. For you as Speaker simply to say that if we do not like this we should send it to the Standing Orders Committee—and we know what a long procedure that is—is I think letting down this House and letting down members in this House. 
Dr Cullen shows absolutely no remorse for taking the course he did yesterday. We already know that most members were not invited to the dinner last night so there is no reason why there had to be that so-called traipsing in and out and there were only a few Ministers there so there is no reason why Ministers could not have been here. What we are faced with is a Leader of the House who simply says to you that he will decide when Parliament is open and when Parliament is closed. I have to say that we are very disappointed at your speedy ruling on this matter and we would ask that you consider firstly asking the Leader of the House to make an apology for using the Standing Order so recklessly and secondly how members’ rights might be better protected by a stronger ruling from the Chair. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 Firstly I want to make it clear that all members were invited to the dinner last night. In case some of them already had engagements or their secretaries did not tell them about it I make it clear that they were all invited to the dinner last night. That is the custom of this House in those circumstances. Secondly Standing Order 38 is a statement of the condition under which a sitting of the House can occur in exactly the same way as the quorum requirement was a statement of the conditions under which a sitting of the House must occur. Equally under the old rules a quorum could have been withdrawn—which is precisely what I did as senior Government whip and the Opposition then had to provide the numbers on a members’ day after threatening to withdraw its own members. 
Hon RICHARD PREBBLE (ACT) 
: 
 This will be a very short contribution. I am not allowed to dispute your ruling so what I will respectfully suggest to you is that you take a course of action that other Speakers have taken and actually look at the  
Hansard 
 and the arguments that have been put to you. I am not suggesting that you need to change your ruling but I do think that you need to look at it to see whether it should not be wider. It is a very serious ruling to accept what Dr Cullen is saying which is that this mechanism is open to the Government because the other alternative is that this is an instruction to the Government. When the Government abuses it it should be open to rebuke including the ultimate rebuke of the matter being sent to the Privileges Committee. That would be a very strong statement to the Government. 
I would also say to Dr Cullen that maybe there were invitations. It was my understanding that we were told that there was not enough space in the place next door for every member. But I am not criticising members who went to the dinner because when the original invitation was put out for a Saturday I thought that the presence of the President of Indonesia was important enough for members to come here on a Saturday for it. I am not saying that it was not an important occasion; I just fail to believe that this House is not capable of having a dinner and being able to sit at the same time. 
Madam SPEAKER 
: Members are debating the ruling at this point. I am happy to put my ruling in a written form for members. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I raise a point of order Madam Speaker. 
Madam SPEAKER 
: Is this a different point of order? 
Hon Dr NICK SMITH 
: Yes it is a new point of order. This House does operate by conventions and there are the Standing Orders. I seek leave for the House to set aside 2½ hours of time for members’ business for the next sitting day on Tuesday 12 April to make up for the time that was removed by the abuse of Standing Order 38. 
Madam SPEAKER 
: Leave is sought for that purpose. Is there any objection? There is objection. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I seek leave for 2½ hours of members’ time to be set down for Wednesday 13 April to make up for the time that was stolen from members by the actions of the Leader of the House. 
Madam SPEAKER 
: Leave is sought for that purpose. Is there any objection? There is no objection. 
Parliament Buildings—Media Access 
Hon RICHARD PREBBLE (ACT) 
: 
 I raise a point of order Madam Speaker. It is a completely new one but again this is the first available opportunity I have had to raise it. You may remember—and other members most certainly will—that I have raised this particular point of order on a number of occasions. I believe that  
Speakers’ Rulings 
 and the Standing Orders—[ 
Interruption 
] 
Madam SPEAKER 
: I just remind members that members are to be heard in silence on points of order. 
Hon RICHARD PREBBLE 
: I believe that  
Speakers’ Rulings 
 and the Standing Orders make it quite clear that members are not to be obstructed when coming to and from the Chamber. I have raised this issue on many occasions but I have basically given up. I think the media have now probably established by common law right that they can sit on the bridge between the Beehive and Parliament House. 
However I discovered that last night suddenly that rule was enforced. It seems quite extraordinary. This is Parliament. We parliamentarians have to zigzag and work our way around the media. On Tuesday I actually had to wait for a while until the leader of the Maori Party had finished her very interesting interview. But I discovered that last night the media were suddenly cleared away because another delegation was visiting that apparently has stronger views about the media. It seems to me that the Government should have a consistent rule. If we MPs have to endure the media—that is part of our job—would it not have been a good idea for the President of Indonesia to be introduced to some free press as well and for him to have to walk through the media the same as we do? 
Madam DEPUTY SPEAKER 
: I am more than happy to follow up that point for the member. 
Standing Order 38—Minister Not Present 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I raise a point of order Madam Speaker. I wish to seek clarification. The Government has generously given leave for the time that was lost last night to be made up next Wednesday. But I suspect that the Government’s intention is to subvert that as well by moving the House into urgency on Tuesday which means that Wednesday technically will not occur because as we know we have this archaic ritual whereby Wednesday is not recognised during urgency. So can I seek clarification from the Leader of the House as to whether he is actually acting in good faith allowing members to have the 2½ hours or whether it is just another tricky deal? Is he intending not to give members the time he took away from us last night and simply to subvert it by urgency? 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 In the business statement at the start of today’s sitting I said that the Government intends to take urgency on Tuesday. If the business I outlined is finished by 1 o’clock on Wednesday I will be very happy for the member to have his 2½ hours of members’ time. 
Madam SPEAKER 
: Has the matter been clarified for the member? 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I seek leave in the event that the Government does not allow for the 2½ hours of members’ time to be granted on Wednesday 13 April for the House to set aside the time to make up the 2½ hours on Tuesday 3 May. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I raise a point of order Madam Speaker. There is an important point here about the leave. The member referred to the Government not allowing the time. It is in Parliament’s hands once urgency is moved as to how long the business takes not the Government’s hands. 
Madam SPEAKER 
: Leave was sought to put that matter—it shall be put first. Is there any objection? There is. 
Rt Hon WINSTON PETERS (Leader—NZ First) 
: 
 I raise a point of order Madam Speaker. I advise you that yesterday I had the benefit of seeing a delayed broadcast of Parliament’s question time. I want to put New Zealand First’s position very very clearly. Frankly I believe that some members of this House are wasting question time seriously. Although the issue today is very very important nevertheless it is 35 minutes since the House was called and it means that some of us are having our right to put our issues seriously compromised. I believe Madam Speaker that if you look at  
Hansard  
over a long period of time you will know who the main offenders are. 
With the greatest respect we are getting frightfully sick and tired of it. If members cannot make their points of order succinctly then we should move on with parliamentary business. Around the country hundreds of thousands of people are waiting on New Zealand First’s questions and I think they should have an answer. 
Madam SPEAKER 
: I agree with the member. I have reviewed  
Hansard. 
 As the member well knows last week he made three spurious points of order that occupied some time in this House. But as I indicated yesterday the rules will now be applied rigidly. 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Madam Speaker. In that regard during the course of Dr Nick Smith’s previous point of order there was an interjection that I noted from your body language you did see. 
Madam SPEAKER 
: I could not hear who it was though. I knew there was an interjection. 
GERRY BROWNLEE 
: Even during Mr Peters’ point of order just a few moments ago a number of people perhaps only laughed but none the less interrupted that point of order. It certainly was not heard in silence. 
The Hon Bill English has a question set down for later in question time. He made one comment during a point of order—we do not challenge your ruling but he probably was unlucky in the circumstances to have been slung out of the House. We would appreciate it Madam Speaker if you would consider allowing him back into the House to ask that question. Certainly the custom has been that when Ministers—and I can think of a number—have angered the Speaker in the past they have been given a great deal of leniency because of questions addressed to them. 
Madam SPEAKER 
: I take the member’s point. The Hon Bill English will be allowed back into the House for that question. 
Hon RICHARD PREBBLE (ACT) 
: 
 I raise a point of order Madam Speaker and I apologise to Mr Peters. I am forced under the Standing Orders to raise my point of order at the first available opportunity and again this is it. I draw your attention to  
Hansard 
 which I have sent you a copy of and to the comments you made to the House last night. I invite you to correct the record because you told the House last night that you had had no advice of what Dr Cullen was proposing. I have now learnt that at the Business Committee which you chaired he in fact made that very threat. I think you should have told the House that you knew he was intending to use that mechanism instead of leaving me with the impression that you were as stunned as I was by his action in staging a walk-out. 
Madam SPEAKER 
: I will take one contribution on this. 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 As a person who spoke at the Business Committee my recollection is that I gave a general indication that the Government would look at other mechanisms to achieve its objectives not specifically this one. I can certainly say and can assure the House that I had no communication with the Speaker about the action I took at 7.30 last night. 
Madam SPEAKER 
: I am happy to review  
Hansard 
. My recollection is that the allegation was of collusion and that is what objection was taken to. Of course the matter was raised at the Business Committee but no decision was taken. I looked for members when I came into the House and when the point of order was raised by the National whip. 
Urgent Question—Leave to Ask 
GERRY BROWNLEE (Deputy Leader—National) 
: 
 I raise a point of order Madam Speaker. You will be aware that we set down an urgent question for your consideration today but on the balance of things and on the advice you have received you have decided that it should be turned down. However we believe that it is a matter of particular importance. It relates to a ministerial action that has possibly led to a breach of a suppression order. We therefore seek leave to ask an urgent question in the House this afternoon. 
Madam SPEAKER 
: Leave is sought for the urgent question. Is there any objection? Yes there is objection. The urgent question will not be put.