Huata v Prebble
[2004] NZCA 147
•16 July 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA34/04
BETWEENDONNA AWATERE HUATA
Appellant
ANDRICHARD WILLIAM PREBBLE
First RespondentANDKEN SHIRLEY
Second Respondent
Hearing:1 April 2004
Coram:McGrath J
Glazebrook J
Hammond J
William Young J
O'Regan JAppearances: P J K Spring and A J Lloyd for Appellant
J E Hodder and B A Davies for Respondents
Judgment:16 July 2004
JUDGMENTS OF THE COURT
Judgments Para No McGrath, Glazebrook and O’Regan JJ [1] to [143] Hammond J [144] to [155] William Young J [156] to [171]
MCGRATH, GLAZEBROOK AND O’REGAN JJ
(DELIVERED BY MCGRATH J)
Table of Contents Paragraph Number
Introduction.................................................................................. [1]
The statutory regime.................................................................... [4]
The facts........................................................................................ [8]
High Court Judgment.................................................................. [30]
Parliamentary privilege
Introduction.............................................................................. [40]
Composition of the House........................................................ [41]
Internal proceedings................................................................. [44]
Article 9 of the Bill of Rights 1688.......................................... [68]
Scope of judicial review............................................................... [71]
Did the appellant distort proportionality
Distortion of Proportionality under s55D(a)........................... [73]
Submissions.............................................................................. [75]
Ordinary meaning.................................................................... [77]
Legislative history..................................................................... [82]
Constitutional context............................................................... [91]
NZ Bill of Rights Act 1990....................................................... [96]
Conclusion on distorting proportionality................................. [97]
What acts can distort proportionality....................................... [99]
Applying the law to the facts.................................................... [107]
Predetermination by the caucus................................................. [124]
Summary and conclusion............................................................. [139]
Introduction
[1] The appellant, Mrs Donna Awatere Huata MP, was re-elected as a member of the House of Representatives in 2002, as a list member of the ACT party. She appeals against a judgment of the High Court dismissing her application for judicial review of actions taken in relation to her seat in the House by the parliamentary leader of the ACT party and members of the ACT caucus. The respondents are Hon Richard Prebble MP and Hon Ken Shirley MP who at the relevant times were respectively the parliamentary leader and the acting parliamentary leader of the ACT party. The effect of their actions was to put in train a statutory process which, if it is carried through to completion, would result in the termination of the appellant’s membership of the House of Representatives. The process is prescribed by ss55A to 55E of the Electoral Act 1993, which were enacted in the Electoral (Integrity) Amendment Act 2001.
[2] For two reasons this appeal raises questions of constitutional importance. First, although it was accepted by their counsel in this Court that the actions of the respondents are justiciable, the matters in issue do touch on the functioning of Parliament. The Court itself must be satisfied that their nature is not such that the Court should refuse to address them because of parliamentary privilege, and in particular the traditional respect of the courts for the need for the legislative assembly to be able to regulate its internal processes without impediment. Secondly, the appellant is claiming a right to continue to act as an elected member of the House of Representatives, a claim that raises issues that concern both her rights as an elected member of the legislative assembly and those of the electorate to be represented by her in a representative democracy.
[3] At the heart of the appeal however are the provisions of the 2001 amendment to the 1993 Act, within the framework of which the respondents claim to have properly acted.
The statutory regime
[4] Sections 55A to 55E of the Electoral Act 1993 are set out in Appendix A to these judgments. They form part of a group of sections enacted in the 1993 Act which appear under the heading Vacancies. Section 55 stipulates a number of situations in which the seat of a member becomes vacant, including where the member is convicted of a crime punishable by imprisonment for a term of two years or more (s55(d)). Other sections in the group provide for vacancies in seats to arise where a member becomes mentally disordered or where a member dies (ss56 and 58).
[5] Sections 55A to 55E prescribe a regime under which the seat of a member of Parliament, not being one elected as an independent, may become vacant through the member ceasing to be a parliamentary member of the political party for which he or she was elected. When it is initiated other than by the member concerned, the process ultimately requires that the parliamentary leader of the political party for which the member was elected give a signed written notice to the Speaker of the House of Representatives. This must be accompanied by a signed written statement that the parliamentary leader reasonably believes that the member concerned:
…has acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election (s55D(a)).
[6] The statement accompanying the notice to the Speaker must also record that a stipulated procedure has been followed prior to the leader giving notice to the Speaker. Under it the leader must have given the member a written notice, informing the member that the leader has formed a reasonable belief as to the continuing effect on proportionality of the member’s actions and must also have given the member 21 days to respond to the matters raised in that notice. As well, after their consideration of the member’s conduct and any response to the leader’s notice, the parliamentary members of the political party concerned, by a majority of at least two thirds, must have agreed that the parliamentary leader should give the statutory notice to the Speaker.
[7] The effect of the delivery to the Speaker of a notice under s55C is that the seat of the member concerned becomes vacant. The Speaker must cause the vacancy to be notified in the Gazette, in the case of a list member under s134 of the Act, thereby initiating the procedure for the vacancy to be filled by the next person in the party’s list. In the case of an electorate member the vacancy is notified under s129 and a by-election follows.
The facts
[8] The appellant was first elected to Parliament, as an ACT list MP, in 1996. She was re-elected in 1999 and in 2002. On 15 February 2003 the acting leader of the ACT party wrote to the appellant to advise her that she had been suspended from the ACT parliamentary caucus, and to tell her that no ACT MP would in future exercise a proxy vote on her behalf. During the same month the appellant’s subscription for membership of the ACT party fell due. The rules of the party required that if any subscription was not paid by a member, within 6 months of the due date, then membership ceased, with the consequence that the person concerned could not be included on the ACT party list at the next general election. The appellant did not pay the subscription during the ensuing 6 month period.
[9] On 4 November the appellant was charged with fraud and perverting the course of justice. The charges related to her involvement in the Pipi Foundation Trust, which runs a remedial reading programme. The trust was a recipient of public funding and the appellant had been involved in securing those funds. The charges are yet to be determined and have no impact on the present litigation.
[10] The appellant sought to renew her membership on 6 November 2003 but her application was rejected by the Board of the ACT party. On 6 November 2003 the acting leader reported to the ACT party Board that the caucus took the view that when her membership lapsed the appellant had left the caucus. He added that the caucus was seeking to confirm her departure.
[11] On 10 November 2003 the acting leader wrote to the appellant giving her notice of his belief that her actions had distorted the proportionality of the ACT party’s representation in Parliament. He said:
In my capacity as Acting Leader of the ACT Party, I give notice that in my belief your actions have distorted and are likely to continue to distort the proportionality of ACT’s representation in Parliament as determined at the last general election.
I confirm that you are no longer a member of the ACT Party Caucus.
The President of the ACT Party advises me that you are no longer a member of the ACT Party because your membership lapsed over 6 months ago. I am also advised that there is no prospect of you being permitted to rejoin the ACT Party. It is a prerequisite of membership of the ACT Parliamentary Party that the MP is a member of the Party. By your actions you are now an independent MP.
I note that you withdrew your pooled funding. You voted against ACT in favour of Maori Television after leaving the ACT Party. The Auditor General also advised that you laid a complaint against ACT staff. He has dismissed your complaint. These actions confirm your independent status and distortion of ACT’s representation in Parliament.
I give notice that pursuant to the provisions of the Electoral Act you have 21 working days to respond to me in writing.
[12] On the same day the acting leader also wrote to the Speaker to advise him that the appellant was “no longer a member of the ACT parliamentary caucus and by her actions is an independent MP”. He claimed that her actions had distorted, and were likely to continue to distort, the proportionality of ACT’s representation in Parliament as determined at the last general election. He indicated that he had invoked the Electoral Act provisions by giving the appellant a written notice of reasons why she had distorted proportionality and noted that she had 21 days to respond.
[13] The appellant replied to the acting leader’s letter the same day saying that she was still an elected representative of the ACT party and would remain so until the end of the parliamentary term. She said she had never left the ACT party and that it had always held her proxy vote, and she asked the deputy leader to continue to exercise it.
[14] On 11 November the Speaker announced in the House of Representatives that:
Under Standing Order 35(1)(c) I have been advised by the acting leader of the ACT party that ACT’s parliamentary membership has changed, and that Donna Awatere Huata is no longer a member of ACT for parliamentary purposes. Accordingly, under Standing Order 34(3), Donna Awatere Huata is, from 11 November 2003, regarded as an Independent member for parliamentary purposes.
At this point, at least, no question of the member’s seat becoming vacant under the provisions of the Electoral (Integrity) Amendment Act 2001 arises. That Act sets out certain conditions and procedures under which a member can be expelled from the political party for which he or she was elected. The acting leader of ACT has indicated an intention to invoke that legislation. Whether that is possible is a matter that does not arise at this time.
And after referring to possible consequential implications for seating in the Chamber of ACT members, allocation of questions and speaking slots the Speaker continued:
Allocations of funding to ACT and to Donna Awatere Huata will need to be readjusted to reflect the new party balances. This is a matter that I will attend to on advice from the Parliamentary Service Commission.
[15] On 13 November the acting leader wrote again to the appellant. He said that this letter was “an elaboration of points underlying my notice to you dated 10th November, pursuant to provisions of s55A of the Electoral Act.” He also said that she could assume that the 21 day period for reply would run from the date she received the letter of 13 November.
[16] The letter is detailed and lengthy. It is set out in full in Appendix B to these judgments. For narrative purposes we summarise its contents here. The letter repeated a number of the points made in the acting leader’s previous letter and provided several further reasons for his belief that the appellant had acted in a way that distorted, and was likely to continue to distort, proportionality. The new allegations were:
(a) The appellant had impeded the ACT party’s parliamentary and extra-parliamentary efforts, by failing to co-operate with other members, and by forcing them to exclude her from the planning and execution of those efforts.
(b) She had criticised her colleagues publicly, causing them to lose trust and confidence in her. That also was said to be in breach of caucus rules.
(c) The appellant had damaged ACT’s public standing by lying to the public on numerous occasions and defending those lies. One particular instance related to a stomach-stapling operation performed on the appellant. We need not particularise the other alleged instances.
(d) The appellant had misled or lied to her party colleagues. One instance cited related to her engagements. Another related to the affairs of the Pipi Foundation Trust. The acting leader alleged that the appellant had breached an undertaking to ensure that she would not benefit personally from the Trust, lied about her reasons for breaching it, and failed to meet her undertakings that she would produce documents and records to demonstrate the untruthfulness of the allegations against her in relation to the Trust.
(e) She had shown “complete disregard for ordinary notions of ethics and honesty” in relation to caucus by attending a private caucus meeting wearing transmitting equipment. That incident was said to have destroyed any remaining trust of the appellant on the part of caucus.
(f) The appellant had denied ACT an effective voice on the Education and Science Select Committee, since the party had expelled her from caucus. The acting leader asked her to relinquish her membership in favour of another ACT member. He also recorded that ACT was dissatisfied with Mrs Huata’s performance on the Committee.
(g) The appellant’s actions had rendered her “unacceptable to any caucus which wishes to preserve its confidentiality and effectiveness and trust among its members” and they therefore had led to her being declared an independent. He alleged that as a result she had reduced ACT’s entitlement to those benefits which are proportionate upon party membership. That had affected ACT’s seating in the House and its representation at state occasions. It had also led to a reduction in leader’s funding, the allocation of questions and speaking slots in general debate.
(h) ACT’s profile and effectiveness in the House had been harmed by the ongoing controversy caused by Mrs Huata’s claim to remain a member of ACT.
The acting leader also recorded his refusal to hold a proxy vote on Mrs Huata’s behalf.
[17] The letter concluded:
The ACT caucus believes that your conduct has been so disgraceful that no caucus should be expected to allow you to be a member. So much of Parliamentary procedures are built around the requirement to accept a member’s word. Your conduct has struck at the heart of that expectation.
You were suspended from Caucus because of your actions. No caucus could be expected to work with a person who is plainly dishonest, self serving and disloyal. ACT caucus members have suffered a succession of false statements, together with your unacceptable behaviour.
You failed to explain your purported rebuttal of the allegations that were made against you late last year. You gave us assurances that you were not personally involved in Trusts receiving taxpayer funding. The Auditor General’s report, tabled in Parliament on Thursday 6th November, reveals your involvement in an interwoven web of such Trusts.
Your actions and omission have destroyed any foundation for confidence that Caucus may have had in you.
I invite your response in writing on the matters raised in this letter and in my notice of November 10th. I have also included in this letter a copy of that notice. Under s55D you have 21 working days from the date of receipt of this notice.
[18] Prior to the expiry of that period, the appellant issued proceedings against the respondents in the High Court on 9 December 2003. On 11 December, after hearing the parties, Rodney Hansen J made interim orders preventing the leaders taking further steps in relation to the notice pending the outcome of the substantive proceedings. Those interim orders were later upheld by this Court on appeal.
[19] On 12 December the appellant wrote to the leaders responding to the letters of 10 and 13 November, maintaining that the integrity provisions of the Electoral Act did not cover her actions, as the respondent had claimed, and asserting that any action taken in respect of her under them would be unlawful. The letter also claimed that:
Any effect on proportionality in relation to my position as an MP has come about as a direct consequence of the actions of yourself and/or the ACT Caucus… Furthermore it is clear from statements made publicly by both you and Mr Shirley that I am being denied the right to a fair hearing and consideration free from pre-determination.
The appellant then took issue with the contention that by her actions she had left the ACT party:
I have at all times maintained a position consistent with remaining an ACT MP. I have continued to vote along the same lines I have voted over the past two and a half terms in Parliament. I have continued to represent ACT’s interests on any Select Committee that I have been involved with. I have continued acting in the exact same way I have been acting as a Parliamentarian for the last two and a half terms. I have not left the ACT Party at all, rather the ACT Party has chosen to suspend and ostracise me.
It is clear that you and Mr Shirley believe that I should be removed from Parliament because I am currently facing charges. The New Zealand Bill of Rights Act confirms my right to be considered innocent until proven guilty and the Electoral Act makes clear my removal if, and only if, I am convicted. In the meantime, it is my right to continue to do my job as an elected official. And so it should be. The independence of MPs is essential, and the ability to remove an MP simply by proffering charges against them that may be completely unsubstantiated would open our system to corruption and influence in a way that is wholly improper. The Electoral Act is specifically drafted to make provision for the removal of an MP only upon conviction and not upon the mere facing of charges for this very reason.
You are not happy that I have the right to the presumption of innocence and accordingly seek to side-step that right by invoking the integrity provisions of the Electoral Act in a way that they were never intended to be applied. The integrity provisions of the Electoral Act were never intended to be used on the whim of a Party Leader to remove an MP that they simply have decided they do not want around any more. The purpose and intention of the Act, which you opposed at the time it was introduced, was restricted solely to a situation where an MP, by reason of their own conduct, effectively abandoned the Party to whom their election to Parliament was grounded upon. The Act is designed to protect the constituents who voted for that MP from having the representation they believed they would have taken away from them by that MP’s actions to ally themselves with other interests in Parliament or to vote in ways that they were never elected upon. That is not my case. I have a constituency of people who voted for ACT on the basis that I was on the ACT List. If I had turned my back on the ACT Party, then the electoral integrity provisions would apply to protect those persons’ right to a representative in Parliament. But I have not turned my back on the ACT Party, rather the ACT Party has turned its back on me.
[20] The appellant next identified and addressed, in sequence, what she described as the eight arguments, advanced in the acting leader’s letters of 10 and 13 November, that she had distorted the proportionality of Parliament. She described the lapse of her membership as an omission rather than an action. ACT, she said, had failed to follow the standard practice of reminding her that the subscription was due. The ACT constitution and rules, and those of the caucus, did not require that she remain a party member after election. The Speaker’s declaration that she was an independent MP had been made in error, caused by the acting leader’s advice.
[21] In relation to the complaint that she had withdrawn pooled funding the appellant acknowledged that the ACT caucus had agreed that the funds allocated to every ACT member of Parliament, for their business as a member, should be pooled to be drawn on by all contributing MPs. The appellant had participated in this arrangement but said that when she was suspended by the ACT caucus she was prevented from accessing any resources paid for with pooled funding and at that time withdrew. The consequence was that thereafter eight ACT Party members drew on a pool of funding provided by the allocations to eight MPs whereas previously nine had drawn on the allocations to nine. The proportionality, she said, was identical.
[22] The appellant accepted that she had voted against the ACT line in favour of the Maori Television Services Bill. She said however that the leader had always upheld the right of an individual ACT MP to vote against the party on any issue, and she had in the past been free to vote differently on issues such as Maori Television. As there had been no change in her voting behaviour, she concluded that there had been no effect on proportionality. The appellant also said she had and would continue in the future to vote in the same way she had previously over her two and a half terms in Parliament. She reiterated that she had offered to ACT her proxy to cast in her absence to ensure her voting pattern was maintained. It had been ACT’s decision to reject that offer, and any effect on proportionality was a result of that rejection.
[23] The appellant’s response to the suggestion that she had complained to the Auditor-General concerning staffing matters was that she had not made a complaint but, in response to requests from ACT party staff, had given evidence to an Auditor-General’s inquiry into electoral office staffing issues in Wellington. In any event she said that there had been no effect on proportionality.
[24] The next matter the appellant addressed was the acting leader’s statement that members of the ACT party caucus believed that her conduct had made it impossible to include her in the normal planning and execution of the parliamentary work of ACT. She said that this reason was not one that was based on her actions and was not capable of being the basis of a belief that her actions had affected the proportionality of Parliament.
[25] Similarly, the appellant said that the acting leader’s statement that the appellant’s actions had detrimentally affected public perceptions of the ACT caucus and public confidence in it did not warrant the claim that her actions had affected the proportionality of Parliament.
[26] The seventh reason concerned parliamentary party representation on Select Committees of the House. The appellant had continued to sit on the Education and Science Select Committee. The acting leader had said that this amounted to her acting in a way that had affected ACT’s proportionality in the House. The appellant responded that she had always acted as a member, in accordance with ACT’s policies and beliefs. She gave an instance in which she had consulted with the acting leader as to how she should vote, reaching agreement with him that she should vote along lines that differed from her own view. In any event another ACT MP had become a non-voting member of the Select Committee. Accordingly, it could not be said that her actions had distorted the proportionality of Parliament in respect of the functioning of the Education and Science Select Committee.
[27] Finally, the appellant responded to the acting leader’s concern that the ACT party’s representation at “parliamentary fora”, and changes to allotted speaking times, question time in the House, and leaders’ funding had impacted on proportionality. The appellant claimed that all these consequences had resulted from the acting leader’s decision to advise the Speaker that the appellant was an independent MP. Even if that had flow on effects on proportionality they were not, she said, the result of her actions.
[28] The ACT parliamentary caucus met on 16 December 2003 to consider Mrs Huata’s responses to the allegations. The members unanimously supported the giving of notice to the Speaker under ss55A to 55E of the Act. However, the notice could not be delivered because of the interim order that had been made by the High Court.
[29] Since then, Mrs Huata has continued to sit in Parliament. We are told that she has voted contrary to the ACT position on at least four other occasions and abstained on one other occasion.
High Court judgment
[30] In the High Court the application for judicial review was heard by Gendall J who delivered a reserved judgment on 19 February 2004. The Judge first addressed a submission advanced by Mr Hodder, for the ACT party leaders, that the process in issue was essentially a political one, the House having delegated its function of determining its own composition to the relevant party leader and Parliament. Counsel argued that the process was covered by the privileges of Parliament. The issue was accordingly of a kind with which the courts should not interfere. Gendall J rejected that threshold argument. He observed that the process by which a member of Parliament’s seat could be declared vacant, because of ceasing to be a member of the party for which he or she was elected, was one governed by legislation. He concluded that when party leaders acted under that legislation they were responsible to the Court for their actions, the Court having jurisdiction, within the limits of established principles, to review the lawfulness of actions taken and procedures followed whilst exercising the statutory power.
[31] Gendall J then considered whether the relevant beliefs of the ACT Party concerning the appellant were reasonable. Counsel for the appellant, Mr Spring, had argued that there was no factual basis to found a reasonable belief that the appellant had acted in a way that distorted proportionality. The Judge said that cessation of party membership of itself was not a sufficient justification for a party leader to form a belief that the member had acted in a way that distorted proportionality. Cessation of party membership, arising out of a member’s conduct, could however be relevant under ss55A to 55E.
[32] According to the Judge, whether proportionality has been distorted was: “a matter of overall assessment of the member’s conduct viewed within the context of the political party system and its expansion into parliamentary membership of caucus”. Conduct to be assessed could include both positive actions and inaction such as neglectful behaviour. It was not possible to delineate every kind of conduct that could permit party leaders to act under the statutory regime. Parliament had accordingly left that judgment to the beliefs and decisions of the leaders of political parties to be endorsed by a majority of caucus.
[33] Because Parliament had decided that the decisions were a matter for the reasonable belief of the leader it was not for the Court to decide the question. The Court would inquire into whether the belief was rationally supportable, and not whether it was correct. Indeed rationality was not to be equated with correctness. As it was often possible for different persons reasonably to come to opposite conclusions on the same set of facts there was a high threshold for judicial review on the reasonable belief standard.
[34] The Judge then considered the case against the appellant. He said that if a party was entitled to representation by nine seats but was represented only by eight that would affect proportionality. It would also be difficult for a member who had ceased to belong to the party for which he or she was elected to maintain proportionality, as continuing membership was important for securing the confidence of parliamentary members and those who voted for the party. Where there was a continuing pattern of conduct, or a number of particular actions, designed to embarrass the party and to harm its standing and reputation in Parliament and with those who had voted for it, that conduct might form the basis for the leader’s reasonable belief. A reasonable belief as to the likelihood of future action was also required.
[35] Gendall J decided that the appellant’s offer of her proxy vote was not sufficient to maintain proportionality as parliamentary representation went beyond “formalistic voting” and included representation and active participation in support of party policy in Select Committees and in debates in the House. It was relevant also to what was a reasonable belief concerning future action that on four occasions in the month subsequent to being declared an independent member, the appellant had voted against ACT. She had also abstained on a fifth vote. In the circumstances it was impossible for the Court to say that the leader’s belief at the time the letters of 10 and 13 November were sent was unreasonable.
[36] Gendall J added that although the immediate cause of the appellant ceasing to be an ACT Member of Parliament had been the steps taken by the Speaker and the leader, the true causes had arisen earlier in the appellant’s conduct. The respondents had instanced the appellant’s acts in taking a hidden microphone into the caucus meeting, criticising ACT party members, failing to maintain her party membership and voting against the party. The leader’s belief was that the appellant’s actions had cumulatively amounted to her constructive departure from the parliamentary party. She had made her continued membership intolerable for her colleagues, as she had destroyed their trust and the mutual acceptance of responsibilities they had shared.
[37] The Judge said that, although the appellant had maintained that she had not rejected the party, if the conduct of a list member constituted behaviour such that the party could not be expected to maintain a link with the member, it could treat the member as having constructively departed from the party. This type of situation was covered by the statutory regime and the leader’s belief that this was the case with the appellant had not been shown to be unreasonable.
[38] Gendall J then considered the appellant’s argument that the actions of the leader, and the caucus members, demonstrated their predetermination and bias against the appellant which vitiated the statutory process they were undertaking to remove her from membership of the House. The Judge said that the process was a political one. In the statutory context, he doubted that the actions of caucus could be reviewed in the absence of unreasonableness to the extent of capricious and extravagant conduct. In any event, he concluded that the allegation of predetermination failed on the facts. It was contemplated by the legislation that the leader would have predetermined views. The caucus, by contrast, had legal advice on how it should proceed and there was no evidence that it had ignored that advice. An adequate opportunity to respond had been given to the appellant. He therefore dismissed this cause of action.
[39] For these reasons Gendall J held that ACT had established its right to proceed under the legislation. However, by agreement, the interim order has been given continuing effect pending the outcome of the appeal.
Parliamentary privilege
Introduction
[40] This appeal concerns the lawfulness of the use by the respondents of a statutory process for the disqualification of a member of the House of Representatives. As indicated, in the High Court the respondents argued that their actions were protected by parliamentary privilege, and accordingly were not justiciable. Gendall J rejected that argument and it was not repeated by Mr Hodder in this Court. Nevertheless, s242 of the Legislature Act 1908 gives the privileges of the House of Representatives statutory force in New Zealand, deeming them to be part of the general and public law. It provides that it is not necessary to plead those privileges and requires that all courts and Judges take judicial notice of them. The qualification of a person to sit in the House of Representatives is a matter over which the House has asserted parliamentary privilege as recently as 1997, in referring questions to and adopting the “Report of the Privileges Committee on the question of privilege referred on 22 July 1997 relating to the status of Manu Alamein Kopu as a Member of Parliament” [1997] AJHR 1.15B, p5 (the “Kopu Report”). Given the proximity of the issue raised by this appeal to the privilege, asserted in 1997 and previously, and given the legislative instruction in s242, this Court is bound to satisfy itself that the particular actions which the appellant asks the Court to review in the appeal are not protected by the privileges of Parliament. In doing so we respect the important principle that the legislature and the courts should not intrude into the spheres reserved to one another, recently reaffirmed in Jennings v Buchanan [2004] UKPC 36 at [18].
Composition of the House
[41] Our starting point is the privilege of the House of Representatives to regulate its own composition. Historically, that privilege conferred upon the House of Commons an unfettered, unreviewable power to expel members from the House on the basis that their conduct disqualified them from sitting (E Campbell, Parliamentary Privilege (2003) 213; P A Joseph, Constitutional and Administrative Law in New Zealand (2 ed 2001) 422). That power was exercisable by resolution of the House. On enactment of the Parliamentary Privileges Act 1865 privileges of the House of Commons passed to the House of Representatives in New Zealand.
[42] Parliament has, however, since stipulated a number of grounds of disqualification and expulsion in legislation, the current provisions being ss55, 55A to 55E and 56 of the Electoral Act. It may well be, as Professor Joseph suggests, that any broad power of the House of Representatives to expel by resolution has thereby implicitly been abrogated: P A Joseph, Constitutional and Administrative Law in New Zealand (2 ed 2001) 422. That would mean that the power of the House has been replaced by the defined statutory grounds for disqualification. The Law Commission in December 1996 expressed a similar view: The Law of Parliamentary Privilege in New Zealand, (NZLC MP5) paras 65 to 70.But it is unnecessary for the Court to decide this point as the House is not asserting a power to expel the appellant by resolution and the matter we must consider concerns only the statutory procedure in s55A to 55E of the Electoral Act. As indicated, in the Kopu Report at p5, the Privileges Committee considered that it was the House’s privilege to consider the application of s55 to a question concerning resignation as that matter concerned the qualification of a member to sit in the House. It can be assumed that s55 was, in the Committee’s view, a modern manifestation of the historic privilege relating to the composition of the House.
[43] Where such a statutory power is a limited one, as are those in ss55A to 55E, the courts have asserted their responsibility to keep the power within those limits by considering the existence and scope of the possible privilege as opposed to the manner of its application in particular cases (See, for example, Egan v Willis (1998) 158 ALR 527 and New Brunswick Broadcasting v Nova Scotia [1993] 1 SCR 319, at p350). Commonwealth courts have applied this approach in cases concerning the privilege relating to the composition of the House (Harvey v New Brunswick [1996] 2 SCR 876 per McLachlin J; Armstrong v Budd (1969) 71 SR (NSW) 386). According to these judgments composition privilege does not bar judicial review of the exercise of the power on the ground of exceeding the power’s scope. We do not however have to decide on the applicability of this principle in New Zealand as, for reasons outlined in paragraphs [59] to [67], composition privilege is excluded by necessary implication.
Internal proceedings
[44] The ultimate question, in this case, is whether the Court has the constitutional responsibility for administering ss55A to 55E of the legislation. There is a well-established rule, with which composition privilege partly overlaps, that it is exclusively for the House itself to administer that part of statute law which relates to its internal proceedings. The courts will not exercise jurisdiction over legislation of that kind. No question of the existence of that privilege arises, but the question of the scope of the rule is of importance to the circumstances of this appeal.
[45] The role of the courts in adjudicating on questions concerning the Houses of Parliament frequently led to differences between the two branches of Government, but agreement as to certain principles gradually emerged. There is a discussion of the history in relation to claims touching on these issues in the majority judgment of this Court in Buchanan v Jennings [2002] 3 NZLR 145, [18] to [24].The recognition by the courts of the internal proceedings privilege, and of their jurisdiction to determine its scope, became apparent in the combined effect of three particular nineteenth century decisions of the English courts in relation to the House of Commons.
[46] In the first of these Burdett v Abbott (1810) 14 East 1; 104 ER 501, Lord Ellenborough CJ considered whether courts were precluded from adjudicating on a committal for contempt under a warrant issued in accordance with a resolution of the House. Lord Ellenborough said that he did not accept that the courts could never adjudicate on the legality of such a committal by the House, but doubted whether they would do so directly, by releasing a subject from committal on an application for habeas corpus. But, he added, even on a habeas corpus application the courts would consider whether matters fell within the scope of the privileges of the House. They would refrain from intervening only if it did.
[47] Stockdale v Hansard (1830) 9 Ad and E 1, 112 ER 1112 concerned a defamation action against the publisher of reports of prison inspectors, the reports having been published at the direction of the House of Commons. Lord Denman CJ, Littledale J and Coleridge J each made observations in their judgments concerning the scope of the Houses’ privileges, along the lines that matters covered by them were the subject of their own internal regulation. Such privileges were seen as a matter of necessity for the effective functioning of the House of Commons (p1199). Lord Denman nonetheless accepted that the existence and scope of Parliamentary privileges were properly matters for the Court:
But, when one of my fellow subjects presents himself before me in this Court, demanding justice for an injury, it is not at my option to grant or withhold redress; I am bound to afford it if the law declares him entitled to it. I must then ascertain how the law stands: and, whatever defence may be made for the wrongdoer, I must examine its validity. The learned counsel for the defendant contends for his legal right to be protected against all consequence of acting under an order issued by the House of Commons, in conformity with what that House asserts to be its privilege: nor can I avoid then the question of whether the defendant possesses that legal right or not (p1154).
And Littledale J to the same effect said:
It is said that the House of Commons is the sole judge of its own privileges: and so I admit as far as the proceedings in the House and some other things are concerned; but I do not think it follows that they have a power to declare what their privileges are, so as to preclude enquiry whether what they declare are part of their privileges (p1173-4).
[48] Bradlaugh v Gossett (1884) 12 QB 271 is the high point of judicial recognition of the rule that courts do not enquire into internal proceedings of Parliament. The House of Commons had refused to allow Bradlaugh, a militant atheist who had been elected as a member, either to take the oath prescribed by statute for members or to affirm. The refusal prevented him from representing his constituents and he asked the Court to declare that it was unlawful. The issue in the case was whether the Court had the power to make that declaration. Stephen J, who delivered the leading judgment, referred to Blackstone:
The whole of the law and custom of Parliament thus has its original from this one maxim, ‘that whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere’ (Blackstone’s Commentaries (1765) 1 Comm 163).
And, echoing what had been said in Stockdale v Hansard, Stephen J himself said in a well known passage:
I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable (p278).
[49] Stephen J went on to say that the rationale of the rule was to avoid provoking conflict between the House of Commons and the courts, and that it would not conform with the public interest or the constitution for the Court to erect itself as a court of appeal from the House (p280). Importantly, however, he also went on to distinguish protected internal proceedings from those where statute law had established rights which were being exercised “out of and independently of the House” (pp281-282).
[50] In a brief concurring judgment Lord Coleridge CJ observed that if a resolution of the House arose indirectly between parties in court, then the Court would determine its validity. On that basis the Court could determine the scope of parliamentary privilege. Lord Coleridge was concerned that this might lead to conflict between Parliament and the courts but was hopeful that the occasion would not arise often (p275). In the case, however, the plaintiff had directly sought to challenge a decision of the House. That was precluded by the rule that the House had an exclusive jurisdiction to impose discipline upon its members. Whether there were exceptions to the rule could in the view of Lord Coleridge be left for another day as this case fell squarely within its scope (p276-7). Matthew J concurred.
[51] In summary the courts recognise that, in order to ensure the effective functioning of the legislative process, the internal proceedings of the House of Representatives must be scrutinised and supervised by the House itself and not by the courts. The recognition of such a privilege is necessary for the effective functioning of the legislative chamber. The courts will consider the existence of and determine the scope of any possible privilege, if required to do so in litigation, but they will not consider the application of an acknowledged privilege to particular circumstances to decide if they fall within the privilege. It has however been decided that privileges of Parliament do not cover matters concerning rights that parties to litigation seek to exercise in the courts independently from the operations of the House.
[52] While expressing the internal proceedings rule in broad terms the two main judgments in Bradlaugh v Gossett acknowledged that there could be limits to the scope of the rule yet to be fully spelt out. The importance of what was at stake was signalled as a factor of potential importance (ie if a citizen’s life was involved).
[53] This was the position reached by the English Courts by the time Bradlaugh v Gossett was decided in 1884. The broad view of the privilege concerning internal proceedings continued to be reflected and arguably extended in such subsequent decisions of English courts as R v Graham-Campbell ex parte Herbert [1935] 1 KB 594 in which it was held that the internal proceedings rule applied to the sale of liquor in the House of Commons, which had been alleged to be contrary to a licensing law.
[54] The rule of non interference in the internal affairs of the House has also been affirmed in the New Zealand courts, and by New Zealand Judges sitting in other jurisdictions of the South Pacific. The constitutional principle, based on comity between the legislative and judicial branches of government, is part of the law of New Zealand by virtue, now, of s242 of the Legislature Act. In 1996 in Ah Chong v Legislative Assembly of Western Samoa [2001] NZAR 418 the Court of Appeal of Western Samoa in a judgment delivered by Lord Cooke of Thorndon said of the principle of non intervention:
There is a well-settled principle that what is said or done within the walls of a legislative assembly cannot be questioned in the Courts. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the state are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time.
This principle is accepted in all comparable jurisdictions. It was accepted by all three Courts, the High Court, the Court of Appeal and the Privy Council, at the successive stages of Prebble v Television New Zealand Ltd [1994] 3 NZLR 1; [1995] 1 AC 321 (PC), [1993] 3 NZLR 513 (CA). A slightly earlier application of it in the Court of Appeal was Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301. Australian authorities to the same effect were among those collected in that case at p308 and in the Prebble case [1993] 3 NZLR 513, 518. In other South Pacific jurisdictions there are recent recognitions and discussions of the principle in, for instance, Kalauni v Jackson [2001] NZAR 292 (Niue CA) and Robati v Privileges Standing Committee of the Parliament of the Cook Islands [2001] NZAR 282 (Cook Is CA) (p426-7).
[55] That a statutory power is being exercised does not of itself take a matter outside of internal parliamentary procedures. For instance, s7 of the New Zealand Bill of Rights Act 1990 imposes a duty on the Attorney-General, on the introduction of a Bill to the House, to bring to its attention any provision that is inconsistent with that Act. Although that is the exercise of a statutory power by a Minister it is an internal Parliamentary matter, within the area covered by privilege (Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451, Gallen J). The statutory duty is of course binding on the Attorney-General, but its discharge is administered by the House rather than by the courts.
[56] Earlier in 1996, in Kalauni v Jackson [2001] NZAR 292 the Court of Appeal of Niue (comprising Casey, Hillyer and Keith JJA) considered a provision in the Niue Assembly Ordinance which empowered the Chief Electoral Officer to declare the seats of 3 members of the Assembly vacant, on the basis that the members had failed to attend 3 successive meetings of its Public Expenditure Committee contrary to s9(e) of the Ordinance. It was common ground that the meetings concerned had not been validly held. The Government nevertheless sought to have the seats of the members concerned declared vacant, arguing that Article 24 of the constitution of Niue prevented judicial inquiry into the Chief Electoral Officer’s notice. That provision is based on Article 9 of the Bill of Rights of 1688 (UK) and relevantly provides:
The validity of any proceedings in the Niue Assembly, or in any Committee thereof…shall not be questioned in any Court.
[57] Of importance to the present case is the distinction drawn in Kalauni v Jackson between on the one hand the internal workings of an Assembly and discipline concerning its internal matters and on the other actions affecting the rights of members to act as such, exercising their responsibilities as legislators to their constituents, along with the rights of constituents, who elected them, to have them do so. These were seen by the Court of Appeal of Niue as being rights asserted under the general public law. They were recognised as being rights of highest importance in a democratic society. In refusing the claim of privilege, the Court said:
Furthermore they are asserting their rights to act as members of the Assembly, their responsibilities to their constituents, and the rights of their constituents in all respects under the Constitution and the electoral law. The rights they claim relate not simply to the internal workings of the Assembly or its Constitution or to the actions taken by the Assembly to discipline members on some internal matter. Rather the rights they assert are rights under the general law of Niue and rights, moreover, of the highest importance in a democratic society (p297-8).
[58] In this respect the Kalauni v Jackson judgment can be seen as a clarification of where the line is to be drawn between what is internal to the procedure of the House, and what is outside of it. This is arguably of particular assistance where expulsion of a member from a legislative assembly is at issue. As the judgment acknowledges, the Court of Appeal’s determination was reached in the context of the written constitution of Niue, but on this point the Court’s determination does not turn on that constitution’s terms but rather on the scope of the internal proceedings privilege itself. It must however be acknowledged that in Bradlaugh v Gossett Stephen J rejected an argument that the fact that the practical consequence of the resolution of the House was to deny the right of an elected person to take a seat, and the rights of electors to have him do so, brought the matter outside the scope of the internal proceedings rule (p285). It is accordingly not yet entirely clear that this aspect of Kalauni v Jackson represents the law of New Zealand as to the scope of the internal proceedings rule.
[59] What is clear is that this Court can and should consider and determine the scope of this privilege and thus the limits of the area that concerns the internal procedures of the House and is the subject of privilege. It will also determine rights touching on questions of privilege, that are asserted outside of and independently of the House. In the present case, however, it is not necessary to decide if Kalauni v Jackson is the law in New Zealand as there are sufficient indications in the 2001 Act that Parliament did not intend that the actions of the leaders and members of the ACT party caucus were to be treated as internal proceedings of the House which are subject to privilege. The same indications leave no room for the application of composition privilege, even if it would otherwise have precluded the Court’s involvement in the issues raised by this appeal.
[60] The structure of the regime of disqualification under the 2001 Act itself indicates that Parliament did not wish to make the process an internal one protected from judicial review. First, it provides for the power to be exercised outside of the House of Representatives, in the sense that no resolution of the House effecting the expulsion is required and the matter does not come before the House for decision. In contrast with the historical position, the modern process for disqualifying a defecting member keeps the matter out of the House. While that factor is not determinative of whether the statutory process is or is not an internal matter, it does indicate, significantly, that Parliament did not want to make such expulsion part of the business of the House itself.
[61] Secondly, the role of the Speaker is not part of the decision‑making process but is concerned only with ensuring that the vacancy is promptly filled. Indeed, if there is no Speaker, or the Speaker is absent from New Zealand, notices under s55A(3) are to be delivered to the Governor-General. This indicates that Parliament also wished to distance the Speaker from the process as far as practicable.
[62] Thirdly, ss55A to 55E are structured similarly to other provisions in the Electoral Act for disqualifications and vacancies. These require notices to the Speaker to be delivered by various officials, including the Registrar of a Court in which a member has been convicted of one of certain offences, and a person in charge of a mental hospital (ss56(1), s56(2) and s57(7)). It seems unlikely that it was intended that privilege would protect their actions from judicial review. The identical structure of s55A to 55E suggests a similar intention.
[63] Fourthly, Parliament has put the disqualification process in the hands of the political party caucus to be operated by its leader with the agreement of two-thirds of the caucus members. This is significant because the general position is that proceedings of a party’s caucus are not proceedings of Parliament. In our view, the judgment of the High Court in Rata v A-G (1997) 10 PRNZ 304 was not correctly decided. As Professor Joseph has said of caucus proceedings, “these are not so much transactions of legislative business as party-political meetings for co-ordinating and discussing parliamentary business” (“Constitutional Law.” [1998] NZ Law Review 197, 219-220). The decision in Rata was also criticised by Mr David McGee QC, the Clerk of the House of Representatives, in “Parliament and Caucus” [1997] NZLJ 137. He noted that there was no authority for a general rule that caucus proceedings were proceedings in Parliament (p139). He also said:
But accepting evidence that caucus is integral to the way in which the modern Parliament works does not mean that one should accept the proposition that proceedings in caucus are to be regarded as proceedings in Parliament. Cabinet is just as, or even more so, integral to the way in which Parliament works…(p138).
[64] Importantly, Mr McGee goes on to say that even where caucus discussed legislation before the House privilege would not attach to the discussions. The concept of proceedings in Parliament was limited to “essential steps to parliamentary action” and caucus discussions could not be viewed in that light (p140). For these reasons we agree that Rata was wrongly decided on the privilege point. The introduction of MMP with its greater emphasis on party proportionality has not altered the position.
[65] Given that the distinction between Parliament and caucus has historically been absolute, the fact that Parliament has provided in the 2001 legislation that the caucus of a parliamentary party and its leaders should undertake the disqualification process is a further indication of an intention to distance the House itself from it. This confirms that Parliament did not contemplate that the expulsion regime should be seen as part of the internal processes of the House.
[66] Finally, the requirement of the legislation that the parliamentary leader form
sa reasonable belief that the member distorted proportionality, without expressly and specifically providing a mechanism for internal scrutiny of reasonableness, suggests an expectation that the exercise of the power would be reviewable by the courts.[67] These factors individually and in combination indicate that ss55A to 55E were framed with the intention that they fall on the outer side of the line that marks the boundaries of the House for the purposes of privilege. For these reasons the powers to give a notice concerning a member under ss55A to 55E do not fall within the protected internal zone of the House. They are amenable to judicial review.
Article 9 of the Bill of Rights 1688
[68] The final question relating to privilege is whether a different approach is required by Article 9 of the Bill of Rights 1688 which provides:
The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.
Article 9 has long been in force in New Zealand and is now declared to be part of the laws of New Zealand by s3 of the Imperial Laws Application Act 1988. Historically, it was aimed at the protection of free speech in the House and, more generally, maintaining the respective constitutional roles of the courts and Parliament.
[69] It is well recognised that Parliament has the power to override Article 9 in particular cases (Buchanan v Jennings [2002] 3 NZLR 145, [41] (Court of Appeal)). That can be done expressly or by implication (Buchanan (CA) at [41]; Erskine May, Parliamentary Practice (22ed 1997) 98-9). It may be that in cases not involving the attribution of legal liability on the basis of statements in the House (historically the most important aspect of the rule), if there are other important constitutional principles involved, the Court will take a less stringent approach to questions of implication. In this context, however, we are satisfied, for the same reasons as those given in relation to the privilege relating to composition, that Parliament must have intended to create powers that were amenable to review here. It follows that it is unnecessary to consider whether Article 9 covers matters relating to the composition of the House, and whether the exercise of the statutory power is a proceeding in Parliament.
[70] We see no inconsistency with what we say in this judgment concerning parliamentary privilege and what has been said in the judgment of the Privy Council in Jennings v Buchanan.
Scope of judicial review
[71] It is now necessary for us to determine what grounds of review are available under the legislation. As noted above, traditionally courts have approached the privilege relating to composition by reviewing the scope of the power but not its application. That distinction is often difficult to apply. We need not, however, consider whether unreasonableness, the ground relied on by both parties, relates in this context to the scope of the power rather than its application. The reason is that the legislation expressly incorporates a requirement that the leader state a reasonable belief. It was accepted by both parties that it followed that the leader’s belief had to be demonstrably reasonable. We have construed the legislation as permitting judicial review, and it follows that the court in these proceedings must ensure that the requirements of the legislation are observed. Review on the ground of unreasonableness is therefore available to the appellant.
[72] The parties addressed us at some length on the threshold of review. Mr Hodder took the view that a case of this type called for a very strict application of the traditional principles limiting the scope of judicial scrutiny of public decisions. Mr Spring accepted that those traditional principles applied but viewed them in a less restrictive way. This case, however, turns primarily upon the construction of the legislation and whether the grounds relied upon by the appellant fall within its scope. For that reason questions of the precise threshold for judicial review are of little significance. Whichever approach is taken the result in this case is the same.
Did the appellant distort proportionality?
The strength or “clout” of a party in Parliament is highly dependent on congruence between its stated principles and policies, and the conduct of the party’s members. There is little more damaging to credibility and therefore to public influence than perceived hypocrisy or discord or contradiction. Lying, and defence of lying, is similarly damaging.
The weight carried by representation in Parliament is partly a reflection of the extent to which a party’s position will be seen to resonate with voters, and ultimately to encourage people to switch votes. When a party loses credibility or its members are perceived as unreliable and ineffective the utmost eloquence in Parliament may avail little.
Your public lying was very damaging to your credibility. Worse, your blithe defence of lying, for example in relation to your stomach stapling, made your continuation as an effective politician unlikely.
Worse, when we re-examined our experiences with you we found that you had lied on matters as relatively trivial as your commitments. You got colleagues to fulfil speaking engagements, purportedly to release you to address other more pressing Parliamentary business when in fact you were on holiday with your husband. The caucus naturally concluded when that became obvious, and you were insouciant that it was unable to trust you in anything.
Your explanation of the failure to do what you had said you would do to ensure the Pipi Foundation Trust Deed precluded you from benefiting personally shocked your colleagues in February. First you said you didn’t understand the legal points raised, then without any apparent embarrassment you acknowledged that you did and said you had decided it wasn’t important, despite Richard Prebble and myself having made it crystal clear to you, to the Hon Bill Birch, and to others that we regarded this assurance of probity as being absolutely vital.
In your letter of 10th November 2003 you asserted that you are and will remain a member of the ACT Party.
In your letter of the 12th November you requested me to hold your proxy vote and cast it in line with ACT Party policy.
Firstly with respect to your assertion that you were and would remain a member of the ACT Party. The Party Secretary advised me that you permitted your membership of the Party to lapse in February 2003 and were ineligible to renew that membership because of the six-month rule.
You were notified by the Party Secretary in writing on the 6th November that by your own actions you ceased to be a member of the Party under Rule 5.2 of the Constitution and Rules of ACT New Zealand.
It is a pre-requisite for membership of the ACT Parliamentary Party that the MP is a member of the Party. By your actions you became an independent MP. Your independent status was confirmed by the Speaker at the commencement of Parliament on Tuesday 11th November.
With regard to your letter of the 12th November, I record that I have declined your request for me to hold and cast your proxy vote in Parliament.
The Leader of the ACT Party in a letter dated 15th February 2003 advised you that you were suspended from the ACT Caucus and that no ACT MP would exercise a proxy vote on your behalf. It is also a matter of public record that you voted against the ACT Party in favour of the Maori Television Services Bill.
Over the month after the news broke of the Pipi Foundation irregularity you repeatedly undertook to produce documents and records such as cheque books and bank statements to demonstrate the untruthfulness of the allegations against you. For example a press conference was organised for the 12th of January, with your concurrence, to disclose all the relevant material to the media. Each set of assurances and undertakings proved empty.
You demonstrated your complete disregard for ordinary notions of ethics and honesty with your colleagues when you presented to the caucus meeting in February, which eventually resolved to suspend you, wearing transmitting equipment.
You will recall your opening objection to our meeting, that you could not speak frankly without a binding undertaking of confidentiality from us, allegedly on the grounds that otherwise you could be compromised in pending proceedings. All the while you were wearing under your clothing a transmitting device, which was detected by the security guard. After your premature departure we had the amusing sequel of a TV3 representative asking for admittance to our meeting to find you because they needed their equipment back. You must know that no caucus could trust again a member who tried to demand confidentiality for what was about to be said while wearing equipment to record for a television station the proceedings at the meeting.
Throughout the past 9 months you have lied repeatedly to the news media, as well as privately, about ACT. For a recent example, during a interview with Linda Clark on National Radio’s ‘Nine to Noon’ programme broadcast on Wednesday 5th November, the day after your arrest, you attempted to explain away your lapsed Party membership.
You stated that your secretary attended to all such matters (party membership renewal etc) but that Richard Prebble had sacked your secretary last year. That statement was demonstrably untrue. All Parliamentary secretaries and electorate agents are employed directly by Parliamentary Services and their contracts are tied to the Parliamentary term and expire following the General Election, unless renewed.
Richard Prebble was recuperating from pneumonia following the last General Election and I was Acting Leader. As a Caucus we determined with your concurrence that the continued maintenance of an electorate office and an electorate agent in Hawkes Bay was not a priority for the ACT Caucus. Subsequently Trish Kyle’s contract was not renewed.
It seems you expected your dedicated electorate agent Trish Kyle to perform duties that were not in keeping with the provisions laid down in the Members Handbook of Services issued by Parliamentary Services.
In the July 2002 version S.5.1.2 under the title Party Political Activities states:
“Party political work is not part of the duties of either an Executive Secretary or an out of Parliament staff member and cannot be requested of the staffer”.
S.5.1.4 relating to secretarial and support staff states:
“There should not be an expectation that staff will attend to personal matters on behalf of the Member.”
It is worrying to the extent that you have apparently expected the Hawkes Bay-based electorate agent to attend to your personal affairs.
In case you might contend that you were referring to Scott Dennison leaving your employ, as you know he was one the longest serving of your numerous executive secretaries in Parliament. As I understand it he decided to leave of his own accord. You know that Richard Prebble did not sack him.
In the same radio interview referred to above, you claim that you were the hardest working ACT MP other than Richard Prebble and did more activity than the rest of the ACT MPs put together. Apart from being demonstrably and blatantly untrue, such a public comment is a breach of Caucus rules.
I note that the Sunday Star Times on October 5th published an assessment of MPs’ performances and you were the only MP associated with the ACT Party who was listed amongst the invisible 10. I note that you had only initiated four media releases throughout the period of the assessment.
You will know the priority that the ACT Party has given to reform in education. Large amounts of our discretionary Parliamentary money were allocated to this and to your book and to supporting our campaigns with you. Since February we have been unable to participate on the Education Select Committee. We have had no reliable channel to that Committee. On education matters the voice of ACT has been muffled. You were never energetic in areas other than early childhood education but even there we are not aware of any significant effort to maintain the co-ordinated emphasis on ACT policy.
I ask you to relinquish your membership of the Education & Science Select Committee so we can, with the agreement of the Business Committee, appoint Deborah Coddington to it. If there is another Committee on which you would like our support for your membership in the meantime do not hesitate to let us know. It is a caucus decision that ACT’s representation in Parliament of education reform policies needs to have Deborah Coddington permanently substituted onto the Education & Science Select Committee in your place, and I seek your prompt agreement to that course.
You will be aware that representation at Parliamentary fora in New Zealand and elsewhere depends on a rotation allocation process. By your actions in rendering yourself unacceptable to any caucus which wishes to preserve its confidentiality and effectiveness and trust among its members, you have reduced our proportionate claim to participation in such Parliamentary fora, and our representation on state occasions. While many of these may be relatively unimportant, collectively as with the seating and call priorities in the House, they aggregate to prejudice our position vis a vis other parties and to distort the proportionality which we should have been able to benefit from, and to represent by virtue of having nine members in full “communion”.
You are aware of the effect that reduction in our caucus has on leader’s funding and allocation of questions and other entitlements such as speaking slots in general debate. You were part of the process by which we adopted our caucus rules, and you knew well the very high priority placed on frankness and honesty in our dealings with each other. The utterly risible assertions by you that the Auditor General’s report would vindicate you are simply the last in a long line of claims and assertions that indicate you have no regard for the truth.
While this has brought Parliament into disrepute the fact that you have continued to claim to be a ACT member has allowed other parties and the Government in particular to divert attention from matters of legitimate criticism and serious policy import which ACT has been advancing. For the voters who voted for ACT and its policies the proportionality they were entitled to expect has been eroded. That will continue until ACT is represented by a member whose conduct entitles them to claim and hold membership of a caucus. A Parliamentary Caucus is built around mutual obligations, responsibilities and trust.
The ACT caucus believes that your conduct has been so disgraceful that no caucus should be expected to allow you to be a member. So much of Parliamentary procedures are built around the requirement to accept a member’s word. Your conduct has struck at the heart of that expectation.
You were suspended from Caucus because of your actions. No caucus could be expected to work with a person who is plainly dishonest, self serving and disloyal. ACT caucus members have suffered a succession of false statements, together with your unacceptable behaviour.
You failed to explain your purported rebuttal of the allegations that were made against you late last year. You gave us assurances that you were not personally involved in Trusts receiving taxpayer funding. The Auditor General’s report, tabled in Parliament on Thursday 6th November, reveals your involvement in an interwoven web of such Trusts.
Your actions and omission have destroyed any foundation for confidence that Caucus may have had in you.
I invite your response in writing on the matters raised in this letter and in my notice of November 10th. I have also included in this letter a copy of that notice. Under S55D you have 21 working days from the date of receipt of this notice.
Yours sincerely
Ken Shirley
Acting Leader
ACT New Zealand
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