Canterbury Law Review
I welcome this opportunity to reflect on the evolving role of Parliament in our society and on the changes that MMP has foisted on political parties and their members. New Zealanders are blessed by the type of society in which they live. It is, for the most part, peaceful and law-abiding and has the enduring advantage of a stable political system - one under which the people may freely exercise their vote to make and unmake their governments. But like all social institutions, Parliament and the political system need to adapt and evolve if they are to remain responsive to the people they serve. These are my reflections, as the Speaker of the First House of Representatives to be elected under MMP.
Since I was elected in 1978, Parliament has been evolving rapidly. At that time it was very much under the control of the Minister in charge of the Legislative Department, usually the Prime Minister. So much so that one of my predecessors had to go to the Prime Minister to seek funding approval to host a lunch for a visiting delegation - and was refused. Any notions of the separation of powers between the Executive-cabinet and the Legislature were difficult to discern.
The Speaker presided over the House and attended to some administrative matters and undertook certain ceremonial roles. It was not a position which I, for one, would have sought or accepted.
By 1979 members had secured the reference of all bills, except 'money bills', to select committees. By 1980 members of the 'Alternative Caucus' comprising the 1978 National intake were insisting to Ministers that select committees had the right to consider amendments to bills not incompatible with the broad policy direction of the bill. Members on both sides were also asserting the right of select committees to initiate inquiries. Some of the earliest examples of economic deregulation can be traced to the work of the Public Expenditure Committee in inquiring into the New Zealand Forest Service. It found, among other things, that the State forests were in the books (such as they were) as a liability and that the Forest Service did not have one professional accountant on its payroll for what was one of the largest business activities in New Zealand. Such inquiries were not welcomed by the Government. Cabinet even went to the extent of diverting bills to other select committees to avoid the Public Expenditure Committee.
I recall a Banking Bill that was diverted because the Minister of Finance feared that it would be amended to remove the provision as to when banks were permitted to be open.
The presumption of members and select committees was also spreading elsewhere. By 1982 the Commerce Committee (which I chaired) flatly refused to progress a Bill for the Minister of Civil Aviation which proposed a carte blanche for tertiary legislation. It died. Parliament was starting to assert itself. Today, select committees are a powerful force in determining the content of most legislation.
Following the change of government in 1984, the new shoots emerging around the place put on a growth spurt. This led, under Sir Geoffrey Palmer, to the enactment of the Parliamentary Service Act 1985 and the Clerk of the House of Representatives Act in 1988. The role of the Speaker of the House also began to develop. Under the Public Finance Act 1989, the Speaker became the responsible minister for the Votes: Parliamentary Service, Office of the Clerk and the three Officers of Parliament - the Auditor-General, the Ombudsmen, and the Parliamentary Commissioner for the Environment. The Legislative Department is no more. In addition, the Speaker chairs the Officers of Parliament Select Committee, the Standing Orders Select Committee, and the Business Committee which came with the re-writing of the Standing Orders at the beginning of 1996, in anticipation of MMP. This latter committee is a rapidly developing institution.
The Speaker is now responsible in a ministerial sense for votes of around $150 million and over 800 staff - rather more than a number of ministers who sit around the Cabinet table. It is an interesting and wide-ranging job. Indeed, it is the best job I have ever had. A new Parliamentary Service Bill will be introduced soon, further enhancing the role of the Speaker and bringing the Commission fully into line with MMP. In my case, the Speaker is the electorate MP for Kaikoura which extends from Cook Strait almost to the doorstep of Christchurch and comprises an area 2,000 square kilometres larger than Israel.
There are few members who have any experience of how dramatically things have changed. That is due to the fact that the average life expectancy of a member in our Parliament, taken over the whole history of the New Zealand Parliament, is but six years. After the 1999 election, at best there will be no more than 18 members who were here before the passage of the Parliamentary Service Act 1985. As a matter of interest, there will be a maximum of only 29 who were here before the 1990 election - less than a quarter of the new House which will assemble after this year's election. It is not a place to look to for long term careers.
Turning to the role of the Speaker in relation to the House, the first thing to note is that the Speaker does not speak. By this, I mean the Speaker does not take part in debates. However, Speakers have always had the right to sit in the House and speak and vote on the committee stages of Bills. I asserted that right for the first time that anyone can remember when I made a contribution on the recent Sale of Liquor Bill. Now that petitions are no longer introduced by members on the floor of the House - they are now delivered to the Clerk who reads the list - I can see no reason why the Speaker, in his or her capacity as local member of Parliament, cannot sponsor petitions relating to matters arising in his or her
own electorate. I have also sponsored a local bill for one of my district councils which would be rare, if not unique for a Speaker.
The Speaker votes, or more correctly, his or her vote is cast on a party vote by the party Whip. MMP requires it, lest the proportionality of the House be disturbed. My predecessors could not vote in the House, except to exercise their casting vote. They did not vote in Committee unless the narrowness of the Government's majority made it essential. Neither the Speaker nor Chairs of select committees have a casting vote because that would also disturb proportionalities. Now, in the event of a tied vote, the matter is lost. In the case of select committees, where a majority cannot be obtained, the Bill is returned to the House in the form that it was introduced when the time allowed by the Standing Orders or the House runs out. Bills can no longer be buried in select committees as in former times.
The House only sits on a normal week for 17 hours of which I would sit typically for 12 hours. The chair is taken for the rest of the time by the Deputy Speaker or one of the two Assistant Speakers. In chairing the House, my job is to attempt to ensure compliance with Standing Orders and in particular to uphold the rights of members and protect the rights of minorities. This latter point is largely taken care of by the new Standing Orders introduced for MMP.
The Standing Orders give great weight to the principle of proportionality. From this it can be seen that the party list vote (the results of which may be affected by defections and changes of party) dominates everything. The twelve questions each day are allocated proportionately to party membership of the House. The Clerk and I establish schedules over periods of several weeks at a time so that during the period of any schedule each party and each independent get exactly their proper share of the number of questions, including the number of times they get to ask the first question. The same goes for the weekly one hour general debate of 12 five minutes speeches for which a similar schedule is established. Most debates in the House (as opposed to the House in Committee of the Whole) are fixed time debates. Proportionality also applies, subject to some trading between parties at the margin and not infrequently the splitting of speaking times to accommodate members with a special interest.
The makeup of the House with a large number of parties and a considerable number of independent members, as well as one informal unrecognised party, leads to a more political and competitive environment. On one occasion I commented that the place was rather like a Baghdad bazaar with a plethora of stallholders all shouting their wares. With the benefit of long experience of the House, my summation of it after one term of MMP is that it is neither better nor worse than before; rather that it is different. As always, a tiny number of members give the place its bad reputation in the eyes of the public. On the whole members work harder and are better informed than in former times.
With the introduction of much shorter speaking times (normally 10 minutes), debate is more focused. It is also better informed by the intensive select committee process. Members are more properly described as legislators today than they ever were. But no one should believe that one can take the politics out of Parliament. To do so would be to destroy it. Under MMP the House is more political and competitive than ever before. Such is the nature of a multi-party Parliament, where each party is committed to promoting its brand and diminishing those of others.
With MMP, Parliament is more representative than before. Commentators often point to the significant increase in the number of women members and the greater representation of Maori and Pacific Islanders. We have also seen the arrival of our first member of Asian origin. Such representation is often emphasised but the big change has been in the range of backgrounds and lifestyles, many of which were unrepresented in public life a few years ago. The old stereotype of a Parliament of farmers on the one side and trade union officials on the other has long gone. The largest single occupational background is from the education sector.
When it comes to the behaviour of members there is an interesting contrast between what the public say and what they do. I have a steady mail from people complaining about the conduct of a small minority of members. On the other hand, they are almost invariably re-elected time and again with large majorities because they are regarded as strong and effective members. There is more than a little truth to the saying that all publicity is good publicity and being ignored is the only problem. Few seek election to Parliament who are of a retiring or quiet disposition. All members have strong opinions and strong motivation to pursue the causes they hold dear. Not infrequently, they suffer from acute frustration when they find, soon after arrival, that others have equally, strongly-held contrary opinions and will not yield.
More than ever in a multi-party Parliament, politics is the art of the possible. Building support for proposals is not just the task of Ministers. Trading at more than the margin to make progress is a skill which some Ministers and members have grasped but others have not. Few in the media seem able to grasp how things have changed. Most still report in terms appropriate to the old two party system. We are very much this term a Parliament in transition. It is certainly the most interesting term I have experienced and undoubtedly the most exciting one to be Speaker.
In reflecting on MMP, one needs to go back for a moment to the old First Past The Post system. Over time it became increasingly to be seen as unfair and undemocratic. In particular, a considerable percentage of the vote nationwide ended up being unrepresented (or underrepresented) in the House. Further, a party could obtain a majority of the seats with little more than one third of the nationwide vote. With only three exceptions, the majority party in Parliament never represented a majority of the votes cast at any election.
The big change with MMP is that a majority in Parliament now represents a majority of the party vote. In this transitional term, there is the important qualification that the strict proportionality of seats to party list votes has been undermined by party hopping and the creation of new parties in the Parliament which were not registered at the last election. I believe that to be essentially a problem of transition, although I think it likely that there will be widespread support in the next Parliament for a measure to constrain members from changing parties between elections.
Having observed MMP in action, I would suggest that it is not inherently superior to First Past The Post, rather that the two systems are different. First Past The Post in most cases produces clear majorities and strong executive government. MMP produces a more representative Parliament but weaker government. From some knowledge of a range of systems
around the world, I see little sign that any system produces what supporters seek for both Parliament and Government in any one system. I hold to the theory that the change in New Zealand was essentially to pay out both Labour and National for broken campaign promises. One thing the change did achieve, consciously or unconsciously, was to destroy the power of the provincial marginal seat which had driven both Labour and National for decades. Now, the party list vote is everything and that is a pure numbers game giving true weight to what might be called the metropolitan vote. Parliament is increasingly reflecting the fact that most members are from city backgrounds, as is the bulk of the population.
It was an inevitable consequence of an enlarged Parliament under a new system that we would have (and have had) the largest number of new members ever and this has required some adapting. We have parties with none or only one or two with any experience of the parliamentary process. Indeed, we even have members of Cabinet who went straight from the street into their portfolios. This would be inconceivable under most systems and it is unlikely to happen again as MMP settles down.
The processes of forming a Government under MMP institutionalised the very thing that people raged against and which I suggest was an important reason for the new system being adopted - broken promises. The larger party leading the government-formation negotiations cannot expect the smaller party or parties to endorse the entirety of its programme. The larger party must give away some things which it would want to do and indeed campaigned to do. The smaller party or parties, by definition, can have even less of their way and must concede some things of real importance to them which they promised to do. Compromise is at the very heart of the government-formation process. It leads to profound disappointment among the supporters of the various parties involved but that is unavoidable. The old system could be described as one where the largest minority (of the popular vote) governed; MMP, on the other hand, can, on at least some matters, be described as one where the smaller or smallest minority or minorities rule. A cynic around Parliament commented that we have swapped from a system of tyranny of the largest minority to one of the tyranny of the smallest minority; or less eloquently, one where the tail wags the dog.
The initial majority coalition Government between National and New Zealand First was, in a very real sense, a contracted Government with a lengthy agreement signed between the parties after prolonged negotiations. It attempted the impossible; that is, to try and foresee everything which would come up in the course of the following three years. Whatever the outcome of the 1999 election, I think there will be more flexible arrangements between parties involved in coalition negotiations.
Today, we have a situation where it is difficult to use the former language of First Past the Post politics to describe the Government. It is not a National Government. Neither is it a National minority Government, otherwise it would quickly cease to be the Government. Were it a minority Government, it would be unable to command a majority of the House on matters of confidence such as when passing the Budget. Nor is it a coalition. What we have is the Shipley Ministry, comprising Ministers from the National Party, the unrecognised (in Parliament) Mauri Pacific group of independents, and one independent Minister. The Shipley Government is supported on matters of confidence by the National Party, ACT, the independents, the
now registered and recognised party of Mrs Kopu, the now registered but unrecognised Mauri Pacific Party, the party of one of Mr Dunne (United New Zealand), and an independent, namely Mr Delamere. The parties and members outside the National Party reserve the right to vote on issues which are not confidence matters on a case by case basis. So we have a system of government rather more as we had in colonial times before parties became the dominant force in forming Governments. This explains the reference to the "Shipley Ministry". We may yet see coalitions of greater or lesser formality, and even under MMP we cannot exclude the possibility of one party obtaining over 50% of the party list vote and governing in its own right. But one thing can be said of the new system: it gives new meaning to the old phrase that 'politics makes strange bedfellows'. This is made apparent by the voting lists over the last three years. On matters of confidence, the vote is consistently 61 to 59 but on all other issues it can range up to 108 to 12.
One of the best known of Parliament's activities is Question Time. On each normal sitting day, 12 questions are set down for Ministers to answer. What members get to ask a question depends on the schedule and the allocation by party managers within a party's allocation. Question Time starts soon after formal business at 2.00 p.m. and lasts for 45-60 minutes. In that time, the 12 questions and 33-45 supplementary questions are asked and answered. it is usually the most exciting period of the day. it is often noisy and frequently highly controversial, and it is always hugely political. It is a process where the Executive answers to the Parliament. Since questions must be lodged by 10.00 am on the day, it is very close to real time accountability - something other managers in society do not face. It is a time of challenge and contest. The Government tries to present itself well, and the opposition parties strive to damage its credibility. The whole struggle of politics between those in power (and who think they should continue in power), and those in opposition (who will not rest until they are in power) is played out. It has strong elements of theatre and is not without humour.
A regular Question Time, with all its faults as seen by observers, is the hallmark of an open democracy. It is one of the first things to be constrained and indeed eliminated by powerful Executives in other lands. It is no more lively or noisy than in Canberra or Westminster. It performs a truly critical role in society: it is really the ultimate guarantee of honest government. Every minister knows that any element of public affairs for which he or she is responsible may overnight come in contention and be the subject of a question. Everyone in every public sector department or agency knows the same. More so than in former times, anything that goes wrong or develops any sort of a smell will be exposed sooner rather than later. The Minister and department have got less than four hours to research questions before the Minister must stand up to answer. For a Minister who is on top of his or her portfolios, it can be a time to demonstrate ability. For others, it can be a time of terror. Over the years I have seen the careers of Ministers made and broken by their performance in Question Time.
One of the areas of greatest change in this Parliament has been the use of Maori in Parliament. Our procedures have long recognised that any member may speak in English or Maori. Since 1985 Maori has been accorded official status along with English. There is no requirement to interpret. In my 21 years Maori has typically been used for a mihi of greater or lesser length at the beginning of a speech, which the member would then interpret in summary, and move on to give the rest of his or her speech in English. It has been very rare prior to this Parliament for members to debate in Maori. Permission for waiata and other compliments to speeches was established when former speaker sir Peter Tapsell rendered a waiata following his acceptance speech in 1993. Such expressions by way of compliments to speeches from both the floor of the House and the galleries have become rather more frequent this term, on occasions of significance to Maori. This increased use of Maori has not gone down well with many people and, I am bound to say, some members. I have had more letters complaining, often in virulent terms, about the use of Maori than on any other topic and they flow in following every sitting day when the language is used.
Maori is an official language of New Zealand and its use in Parliament and in select committees is certain to increase rather than diminish. The increased number of Maori seats and the assessment by most parties that they need to ensure that a number of Maori candidates are high up their party lists, guarantees that the Maori membership of the House will grow - just as their percentage of the overall population is growing steadily. Although interpretation of speeches is not required, clearly the Speaker, to say nothing of other members, needs to understand what is going on, if only (in my case) to ensure that Standing Orders are being complied with. In the last sitting week, we have seen, I think for the first time post-War, the full time availability of an interpreter. It is inevitable that the use of interpreters will increase. Up until the Second World War, Maori was regularly used in the House, as it had been from colonial times, with an interpreter standing alongside the member speaking. I am certain it will again become a regular feature of our Parliament, facilitated by the use of modern technology.
Of interest to law students is the relationship between Parliament and the courts. It is fair to observe that our courts have been places of rapid development as much as Parliament has been over recent years. Our Standing Orders have long provided that: "subject always to the discretion of the Speaker, and the right of the House to legislate on any matter, matters awaiting or under adjudication in any court of record may not be referred to in any motion, debate or question, including a supplementary question from the time that the case has been set down for trial or otherwise brought before the court if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case". It should be noted that there is no absolute embargo on matters that are currently before the courts. In the past, Parliament has asserted the right to legislate on matters that were then before the courts. There have been several Speakers Rulings over the years which, on this subject as with all others, flesh out the bare bones of the Standing Orders.
Members have absolute privilege in the House and cannot be held liable outside the House in relation to statements they have made in the House. As my predecessors have ruled, the privilege that the House enjoys is not a licence for anyone to break the laws of the country outside the House. It is incumbent upon all members to treat the privilege of free speech in the House with utmost respect and to use it only in the public interest. The law has conferred this privilege on Parliament for the greater good of the community. If a court has made a suppression of name order, it must be presumed to have been made for good reason. It should be obeyed by all members of the House unless the public interest impels them to act otherwise. I could envisage it being necessary to disregard such an order only in the most exceptional cases. I had reason recently to act quickly to pull up a member who appeared to be about to breach such an order for reasons which seemed narrowly party political.
There has developed something of a comity between the courts on the one hand, and Parliament on the other. As one of my predecessors put it so well, "members should respect the position of the judiciary in the judiciary's sphere just as members would expect the judiciary to respect the privileges of Parliament". With very rare exceptions, the comity between these two elements of the constitution has been well respected throughout successive Parliaments. There are, from time to time, two main areas where that comity comes under stress on our side of Molesworth Street.
It would be fair to say there has been an increase in what some, in the legal profession, would call judicial activism since the mid-1980s. There are times when even some of the more reflective Members of Parliament wonder privately who is making the laws in this land. It would not be unfair to say that there are areas of developing interest, activity, and thought in our society where there is little or no direct law or precedent available in New Zealand, or indeed available internationally in any sense of easy transfer of applicability to New Zealand. In such cases, which are few in number but potentially of great importance, the judiciary might hesitate to seek to divine and settle the law. An appropriate declaration in such cases might be to direct the parties to Parliament and/or the Government to seek the development and enactment of law appropriate to the issue, in a way that reflects the unique New Zealand perspective on things. Parliament is, after all, a representative forum (which the courts are not) and now has well-developed procedures for involving the public in its deliberations (which the courts cannot readily do). On matters that involve judgment on social and economic policy, it can reasonably be argued that Parliament is the appropriate body to take decision.
The other area which causes pressure from time to time concerns criminal justice issues such as sentencing, name suppression, bail and parole. Over the years, many members have vented frustration at what they see to be a lack of responsiveness by the courts to, for instance, longer sentences. There is the feeling that no matter what maximum sentences Parliament prescribes, the judges' sentencing rules seem to prevail. Successive Attorneys-General have properly leapt to the defence of the judiciary in the face of the occasional ill-considered remark by a Minister or a member in relation to a sentence or granting of bail in a particular case. Yet, the argument that Parliament ought to make its laws clearer has led some members to wonder what has to be done to achieve that objective. It is in this environment that the demand for fixed sentences arises from time to time. I, for one, need no persuasion of the potential for terrible injustice in fixed sentences.
I want to end with a reference to something more profound. Winston Churchill, among others, has been attributed with the saying that "democracy is a bad form of government but all the others are so much worse". Whatever its faults, it is the only system of government compatible with a free, open, and pluralistic society. It is by nature rather inefficient and argumentative. Its main constraint is that today's majority needs to have regard to the rights of the minority lest the democratic process reverse the position. In the House itself, the basic rule is a rather Old Testament one: you will be done as you did. That is a powerful constraint on the Government of the day which might become the Opposition on the morrow.
But in the end, I fall back on one undeniable truth in the long run of human experience: democracy is the only system under which the people can change the Government at regular intervals without the use of force. There are millions of dead around the world who might have lived out their natural lives if democracy, with all its freely acknowledged imperfections, had been available to them. The defence of democracy has cost millions their lives. The battle honours around our Chamber bear witness to the sacrifice New Zealanders have made to this priceless, fragile institution.
[*] Member of Parliament, Speaker of the House of Representatives 1996-1999.
 This paper is a revised version of an address given to the Public Law class, University of Canterbury, 18 August 1999