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Donna Awatere Huata V Richard William Prebble

Judicial Decisions of Public Interest - Ministry of Justice
Original
http://www.justice.govt.nz/judgments/decisions/CA3404.pdf

DONNA AWATERE HUATA V RICHARD WILLIAM PREBBLE And Anor CA CA34/04 [16 July 2004]

IN THE COURT OF APPEAL OF NEW ZEALAND
CA34/04


BETWEEN DONNA AWATERE HUATA
Appellant
AND RICHARD WILLIAM PREBBLE
First Respondent
AND KEN SHIRLEY
Second Respondent

Hearing: 1 April 2004
Coram: McGrath J
Glazebrook J
Hammond J
William Young J
O'Regan J

Appearances: 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 extraparliamentary 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 wellestablished 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 forms a 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?

Distortion of proportionality under s55D(a)

[73] The principal issue here is whether the Judge was correct to find that in the circumstances it was open to the leader to form a reasonable belief that the appellant had acted so as to distort the proportionality of Parliament.

[74] Section 55D(a) requires that the written statement signed by the parliamentary party leader which accompanies the notice to the Speaker must:

(a) state that the parliamentary leader reasonably believes that the member of Parliament 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.

Submissions

[75] Mr Spring for the appellant submitted that the concept of distorting the proportionality of Parliament covered only those things determined at the last general election. That meant that only changes in the numerical strength of a party, and in parliamentary entitlements consequential on the number of seats a party held in the House, could provide a basis for invoking the disqualification provisions.

Such entitlements, he said, included voting in the House, membership of Select Committees, members’ and party leader’s funding entitlements, and the allocation of parliamentary questions and speaking times in the House. Mr Spring contrasted such matters with the advocacy of party policy, active participation in debates and the maintenance of the trust and confidence of the caucus. Those matters, he said, were concerned with political effectiveness and were not determined at the previous general election. This interpretation accorded with the ordinary meaning of s55D(a), and was consistent with the purpose of the legislation, which was to deal with the problem of party-hopping. It protected the independence of members and prevented the abuse of power by establishing clearly defined limits to the circumstances in which they might be disqualified. Counsel also suggested that the narrower meaning was consistent with protected rights in the New Zealand Bill of Rights Act 1990.

Mr Spring further submitted that it was necessary for the appellant’s own acts, rather than the voluntary acts of the respondents or others, to have caused the distortion of proportionality. Being voluntary, such acts were said to break the chain of causation.

Counsel then analysed each of the matters raised by the respondents as causes of distortion of proportionality and submitted that the matters relied on did not go to proportionality at all, or, where they did, were not the acts of the appellant.

[76] Mr Hodder for the respondents supported Gendall J’s approach. He contended that the concept of proportionality referred simply to the size of the various party caucuses or “teams”. In the political context, membership of the party team implied a duty to support it going beyond an obligation as to voting behaviour.

Mr Hodder submitted that certain kinds of disloyal conduct could cause an effective change in the size of caucus sufficient to invoke the provisions. It was unnecessary to trace precise boundaries because the appellant’s conduct clearly fell within the scope of s55D(a). He submitted that acts cumulatively or in isolation which destroyed the relationship of trust and confidence between the member and his or her colleagues were sufficient. That accorded with the purpose of the legislation, which was not narrowly focused on behaviour just short of formal resignation, but more generally on the problem of disloyalty by members to their parties. Nor, in his submission, should the Court give weight to Burke’s principle that a member exercises an independent conscience. Although argued in the debates on the 2001 Act that consideration did not prevail. Parliament had decided that the safeguards for members would be primarily political. Mr Hodder submitted that the appellant’s own actions were sufficient to justify invoking the section, but further contended that the declaration that she was an independent was caused by her conduct and had clearly distorted proportionality. On the facts, Mr Hodder noted that the appellant did not contend that her actions had not caused a breakdown in the caucus’ confidence in her, and submitted that there was ample evidence before the Court to support that. He submitted that, if his interpretation were accepted, the appeal should be dismissed.

Ordinary meaning

[77] On the ordinary meaning of the provisions inserted in the Electoral Act by the 2001 amendment the “proportionality of political party representation in Parliament as determined at the last general election” means the number of seats each party holds, relative to other political alignments in the House, following a general election. The question is what amounts to a change in numbers in terms of the legislation. That the term “proportionality”, rather than more precise language, was used indicates that the power is concerned not only with formal changes of numbers of a party but also with changes in its voting strength which reflect its effective numbers. The number of seats it holds determines the voting strength of that party, that is the number of its votes in the House relative to those of the other parties represented, and any independent members, during the term of the Parliament.

Subject to any individual practices they adopt, parties can expect that their members will ordinarily vote with them in the House. On the ordinary meaning of the legislation, significant departure by a member from that expected voting practice will effectively change the number of seats a party holds. Such changes will alter the proportionality of its representation in Parliament.

[78] The reference in s55D(a) to what was “determined at the last general election” indicates, as a matter of ordinary meaning, that “proportionality” does not cover matters such as the advocacy strength of the caucus or the level of its internal cohesion or co-operation. Those matters are not determined by the outcome of a general election, which rather merely provides the party with a particular number of members in the House albeit with the expectation that those members will generally vote on party lines. Nor does proportionality cover incidental matters such as party speaking entitlements which are effects of changes in proportionality of party representation but are not themselves distortions of it.

[79] The immediate context within s55A supports that reading of the legislation.

It provides for three ways in which a member of Parliament ceases to be a parliamentary member of the political party for which the member was elected. This appeal is concerned with the third, where a parliamentary leader gives notice to the Speaker, accompanied by a statement of belief that the member has acted in a way that distorts the proportionality of parliamentary representation. The first two ways involve the member giving notice to the Speaker declaring that the member either:

has resigned from parliamentary membership of the political party for which the member was elected; or wishes to be recognised for parliamentary purposes as either an independent member of Parliament or a member of another political party.

[80] The first notice is a formal resignation from membership. The second notice is a formal statement of intention to sever the link with the member’s party in order to operate independently, or as part of a different party. That is effectively a resignation which is achieved by an announcement of defection. This context suggests that the third means, involving an assertion by the leader of acts by the member distorting proportionality, is also concerned with behaviour which has an effect similar to that of resignation. The legislation characterises this as acting in a way that distorts proportionality of party representation in Parliament. It amounts to an effective resignation from the party by any member, whether elected by a constituency or on the party list, which will distort its proportionate representation.

It is difficult to see that failure to cooperate with the party or effectively advocate its policies will invariably do so. That may be misbehaviour justifying expulsion of the member from the party but cannot easily be characterised as a resignation.

[81] Attributing a wider meaning to “proportionality” would also tend to have an expansive effect on the scope of the legislation, suggesting that actions affecting the wider role of a member as an advocate and supporter of his or her party might amount to a defection distorting proportionality. We conclude, for reasons which follow, that such a broad interpretation is untenable.

Legislative history

[82] That wide approach to the meaning of s55D(a) is difficult to square with the legislative history. In a general sense it is true, as Mr Hodder suggested, that the legislation was aimed at discouraging disloyalty by members to their parties. The legislation, however, had its origins in a particular problem experienced during the previous Parliament, when several members of Parliament abandoned the parties for which they had been elected, to chart an independent course in the House or to support another political grouping. Some members formally resigned and offered their support to other parties. Some did that in substance but did not formally resign.

Others became independents but later adopted positions at odds with those of the party for which they had been elected. In one instance, which concerned whether a defecting member continued to be qualified to sit in the House, the Privileges Committee decided that there had to be clear compliance with statutory provisions concerning the resignation of a member in s55 before a vacancy in a member’s seat was created. The legal position had not been changed by the move to proportional representation. Accordingly a notice of resignation of the defecting member could not be construed from a series of documents concerning her which did not satisfy the s55 requirements. (Kopu Report p6). Legislative change would be necessary to achieve that outcome with defecting members of Parliament.

[83] All this was generally viewed as unprincipled political behaviour, particularly where those who defected were list MPs, who owed their seats to the general party vote rather than personal endorsement by an electorate. The concern of the incoming Labour-led Coalition Government to deal with the issue of defections promptly after the 1999 general election was signalled during the Speech from the Throne at the opening of the new Parliament on 21 December 1999 (581 NZPD 7-8).

[84] And the following day, Hon Margaret Wilson, Associate Minister of Justice, when introducing the first reading of the Bill, said:

The Government recognises that this Bill raises a number of constitutional issues relating to the appropriate balance to be struck between the principle of proportionality of party representation, and the principle of independence of individual members of Parliament. The Government believes that this legislation is essential, however, for the restoration of public confidence in the political integrity of Parliament and the electoral processes. The long list of party defections experienced in the last parliamentary term has seriously undermined confidence in the parliamentary process, created political instability and brought into disrepute the political process ((22 December 1999) 581 NZPD 64).

[85] Hon Jim Anderton, Deputy Prime Minister, (p67) spoke in very similar terms. So did Hon Dr Michael Cullen, Treasurer, when introducing the second reading on 9 November 2000 on behalf of the Associate Minister for Justice ((2000) 588 NZPD 6492).

[86] On 6 September 2001 the Supplementary Order Paper, which we will shortly discuss, amended the Bill but there is very little in the Parliamentary debates to suggest that the majority of the House saw those changes as reflecting a purpose which addressed a broader mischief. Hon Lianne Dalziel, for example, said in the resumed second reading debate on the amended provisions:

When one stands for election as a member of a political party, either as a list or a constituency MP, there should be an absolute guarantee to electors that that is the party one will continue to be a part of. Anyone who enters Parliament, elected as a member of a political party, who then resigns from that party, should resign from Parliament… Unfortunately, we have seen the unconscionable behaviour of the late 1990s, and that is why this Bill is needed. ((18 December 2001) 597 NZPD 13991).

[87] Hon Margaret Wilson, speaking to the Supplementary Order Paper during the Committee stage, indicated that the amendments covered “doing things we have seen in the past such as consistently crossing the floor” (18 December 2001) 597 NZPD 14040. And in the third reading speech, on 18 December 2001 she reiterated:

This Bill is about a very simple fact. When members are elected to Parliament, the public has a right to expect those members to recognise that they have been elected for 3 years on the basis of the parties that people voted for. The public does not expect that those they elected to indulge in a game of political musical chairs, where seats are changed to suit the whims of members. …It is tampering with the will of the people and indulging in party hopping that led to public outrage and to the demand to put a stop to the practices indulged in by some members of the previous Parliament

((18 December 2001) 597 NZPD 14055-6).

[88] The way in which the Supplementary Order Paper altered the Bill, during its passage through the House, is also indicative. As introduced the regime depended on the member actually giving notice to the Speaker that he or she had resigned from the party (clause 55A(3)(b)). The amendment provided that political parties should have the right to give a notice to the Speaker which would create a vacancy in the member’s seat where the member had acted in a way that distorted and was likely to continue to distort proportionality. The purpose of the amendments was said to be to give the legislation more substance effectively by catching defections where the member would not formally resign from the parliamentary party (Hon Margaret Wilson (18 December 2001) 597 NZPD 14040). There was no suggestion that their purpose was to broaden more fundamentally the type of behaviour which the Act was designed to target.

[89] It is true, as Mr Hodder pointed out, that there are some statements in the course of the debates in the House which suggest that the provisions, as amended, had a wider ambit, but those are generally statements by members opposed to the provisions. They do not reflect the perspective or purpose of the majority of the House which supported the measure. Little weight can accordingly attach to these views in identifying the meaning and clarifying the purpose of the legislation. The passages cited above strongly point to the narrower approach.

[90] Section 4 of the Electoral (Integrity) Amendment Act 2001 provides that its provisions were intended to enhance public confidence in the integrity of the electoral system and to maintain the proportionality of the House. This expression of twin purposes is entirely consistent with a policy that is focussed solely on the particular problem of members withdrawing from their party in order to support another party or follow an independent course.

Constitutional context

[91] This narrow view of the concept of “proportionality” also finds support in the constitutional context of the 2001 Act. The core purpose of the Electoral Act 1993 was to introduce a system of proportional representation. It is not a pure application of proportional representation. There are departures, in particular to set thresholds of voting support or constituency representation for a party’s representation in the House. Proportionality, nevertheless, is the key feature of the MMP system and its introduction gave political parties for the first time an institutional role in the composition of the House of Representatives. In doing so it introduced list members of Parliament, who had no relationship with an electorate.

[92] Under the constituency system the idea of the independence of a member of Parliament had developed which, while threatened by the emergence of strong parliamentary political parties, was to survive that development (Amalgamated Society of Railway Servants v Osborne [1909] 1 Ch 163, 186-1 and [1910] AC 87, 114-115). That independence itself came to be recognised as an important aspect of democracy under a Westminster system.

[93] The question however is whether that remains the position. Mr Hodder said that this independence has now been replaced in the MMP environment by the concept of a team. He said that Parliament is comprised of a number of caucus teams, and the 2001 Act reinforces this by giving powers to both the party leader and the caucus majority. The notion of an independent conscience therefore was of little significance in relation to the legislation. He said that it followed that when an MP lost the trust and confidence of his or her colleagues, and thereby stopped being an effective part of the elected “team”, proportionality was distorted.

[94] It seems to have been generally accepted, and in particular to have been the view of the Privileges Committee in 1997, that the 1993 reforms did not displace that notion of independence. The principles of independence and proportional party representation, through countervailing, had both been accommodated (Kopu Report p6). We agree with that view. Under MMP, members of Parliament, whether elected on a party’s list or as electorate members, have retained a significant independent role.

[95] The ability to dissent is not merely an individual right. Reasoned dissent and balanced debate are the very essence of a healthy democratic society. Given the importance of the independent role of members of Parliament, clear and express language would have been expected had Parliament intended, as Mr Hodder in effect suggested, substantially to abrogate it. Certainly the provisions do reduce the independence of members. However there is nothing in the language or context indicating that “proportionality” covers a wider meaning than a resignation that can be shown by a withdrawal of voting support. To read the language of ss55D(a) and associated provisions as extending beyond that would have an inhibiting effect on members who were minded to take a different view of an issue to that of their colleagues in caucus without having any intention of withdrawing their allegiance from the party. It would produce considerable uncertainty over the sort of perceived misbehaviour amounting to disloyalty that would allow the party leaders reasonably to form the opinions concerned. There is nothing in the legislative history to suggest that was intended. It is highly unlikely that the purpose of Parliament was to produce such results and that constitutional consideration tells strongly against the wider reading of the statute which the High Court favoured.

NZ Bill of Rights Act 1990

[96] Mr Spring also touched on the value of freedom of expression, guaranteed by s14 of the New Zealand Bill of Rights Act 1990, which arguably provides further support for this approach. Section 6 of that Act requires the Court to prefer a possible interpretation favouring protected rights if one is available. An expansive interpretation of what is meant by distorting proportionality could well chill freedom of expression by members of Parliament. Questions concerning the right to freedom of association under s17 could also have relevance. Freedom of expression, in particular, gives support to the purposive and constitutional reasons and the ordinary meaning of the language used in its context, which underlie our interpretation of the legislation.

Conclusion on distorting proportionality

[97] It follows from the above discussion that we disagree with the respondents’ broad conception of distorting the proportionality of Parliament. Nor do we accept that the concept extends to alterations to the other parliamentary entitlements referred to by Mr Spring. These are incidental effects of changes in proportionality of party representation, but do not themselves amount to distortions of proportionality. That is indicated by the plain meaning of the text and confirmed by the legislative history traced above, which indicates that the legislation was concerned solely with the problem of party-hopping, which involved changes in numbers through resignation or the withdrawal of voting support. Changes in such entitlements might of course be relevant in determining whether voting strength in the House has actually been altered.

[98] We accordingly conclude that the concept of distortion of proportionality with which the 2001 amending Act is concerned, covers any impacts on the number of seats held by a party and therefore the relativity of voting strength between it and other parties represented in the House, as decided following the previous general election. It is plain from the history of the legislation that a change in substance which is not matched by a formal step such as resignation would meet that test.

What acts can distort proportionality?

[99] That brings us to the question of what sort of conduct by a member can amount to acting in a way that distorts proportionality, by altering in substance the relative voting strength of a party in of the House.

[100] Mr Hodder’s approach, as put to us, was that any conduct destroying trust and confidence could qualify if it were so disloyal to the party that the party was either entitled to expel the member or alternatively could not be expected to continue its association with the member.

[101] But even if a party is justified in severing its relationship with a member, due to the member’s misconduct, that does not of itself alter the party’s voting strength.

The estranged member may choose to continue to vote with the party in the House.

Furthermore, the language of s55D(a) suggests that it is the way in which a member acts that must have distorted and be likely to continue to distort proportionality before the disqualifying provisions apply. It is the member’s acts, and their consequences, rather than independent events, which must cause the distortion of proportionality. This causative link is absent where a voluntary act of the party, taken in response to the actions of a member which do not amount to the severance of links with the party in the House, is the immediate cause of the distortion of proportionality.

[102] This is supported by what we see as the scheme of ss55A to 55E, discussed in paragraphs [80] to [81], which provides three ways for a member of Parliament to cease to be a parliamentary party member. Two of them respectively address situations where the member has formally communicated to the Speaker a resignation or a statement of intention to sever the link with the party. The third, not provided for in the bill as introduced, covers a situation where the member has acted in a manner indicating resignation from or severance of links with the parliamentary party but chooses not to communicate what the member has done formally to the Speaker.

[103] This approach is also supported by the legislative history which, as we have said, indicates a narrow focus on the problem of members defecting from the parties for which they were elected by withdrawing their voting strength from them. It does not indicate a concern over wider kinds of disloyalty. As indicated we do not see that as negated by the changes effected by the Supplementary Order Paper. And the constitutional context we have discussed tends to confirm that narrow focus.

[104] It follows that a course of conduct by a member will only be capable of altering a party’s voting strength if, of itself, it amounts to a defection. If by contrast the change in the number of seats held and relative voting strength is the result of a party’s voluntary response to a member’s conduct there is an intervening factor which causes the disproportionality. That situation is not covered by the disqualification procedures in the 2001 legislation.

[105] A member may defect by acting in a manner which overturns the expectation that in the normal course and, on matters of major importance such as questions of confidence and supply invariably, he or she will vote according to the party line.

Voting behaviour in the House will often be the principal indicator of whether a member has defected in situations where there is no notice of resignation under s55A(a). Depending upon the number and importance of votes cast, voting against one’s party may conclusively indicate that the Member has defected and is now following a different course. Equally acts unambiguously amounting to a resignation, albeit one not accompanied by a notice to the Speaker, may qualify as a defection independently of changes in voting behaviour. Other factors may in some circumstances strengthen that inference, although, other than in extreme circumstances, they would not be sufficient in themselves. The section calls for behaviour indicating a continuing change in adherence to the party. It follows that disloyalty which merely causes a breakdown in trust and confidence between a Member and his or her party is not a defection, within the reach of the legislation.

Furthermore, the situations with which the legislation is concerned do not include the consequences of an expulsion or suspension on account of a member’s perceived misbehaviour, even if that does bring about a change in relative voting strength.

[106] If the member’s actions in this case do not amount to a defection then it might be suggested that, having been declared to be an independent member at the initiative of her party, the appellant would in future be beyond the reach of the legislation. We reject that suggestion. The Electoral (Integrity) Amendment Act is absolute in relation to MPs elected as representatives of parties. During the parliamentary term they must not distort their party’s proportionality, however the party may have treated them. It follows that despite having, in effect, been expelled by her party, the appellant is still required to avoid taking actions that would objectively signal that she has distorted its proportional representation in the House and is following an independent course.

Applying the law to the facts

[107] It follows from this discussion that our approach to the legislation differs from that of Gendall J. While actions by a member falling short of formal resignation from a parliamentary party may amount to defection the notion of constructive desertion inappropriately broadens the scope of the legislation and obscures the requirement that the members must act in a way that distorts proportionality. Accordingly, we must apply our narrower interpretation of the disqualification legislation to that proved conduct of the appellant which is said to be the basis of the leader’s belief that she has distorted proportionality.

[108] The allegations against the appellant are of different kinds. We start with those which concern her failure to support ACT party policy in Parliament. The main instance raised was the appellant’s voting support for the Maori television legislation. As the legislation is concerned with actions distorting relative voting strength of parties in the House, voting by a member against the party is capable of indicating a defection. But the references to distortion of proportionality and the likelihood that it will continue make it clear that the legislation is concerned with the member’s voting pattern, rather than isolated incidents. It was not suggested by the respondents that the Maori Television Service (Te Aratuku Whakaata Irirangi Maori) Act 2003 was an issue of highest policy importance for the ACT party in Parliament, let alone one on which confidence in the government might turn. Given that, the appellant’s actions in voting against the party on this single issue were not capable of founding a reasonable belief that she had distorted proportionality.

[109] In assessing the importance of voting on this issue another relevant factor is that the ACT Party Rules provide:

8. Resolutions of the Caucus are binding on MPs – except that every MP with the exception of financial and confidence issues has a free vote.

9. To vote against the Caucus is a serious matter and should not be done unless it is a matter of substance, and:

(i) The Leader must be advised, and the reasons.

(ii) (Where possible) the Caucus advised so it can be discussed.

[110] These rules allow a member to exercise an independent vote subject to informing the leader and, where possible, discussing the matter with caucus. In that context (even if the appellant did not inform the party when she voted against it) adverse voting on its own does not necessarily indicate defection from the ACT party. Voting against the party was permitted by the rules. Of course, had the appellant consistently voted against party lines the rules would not have prevented her from being classified as a defector. And the failure to follow procedural steps does not make an otherwise permitted action a defection.

[111] While it is not strictly relevant to the legality of the notice given to the appellant, we were told that the appellant voted against the party on four further occasions before the hearing of this appeal. The precise matters are not before us but in the absence of argument to the contrary we can assume that none is of great significance in itself. On the limited evidence before us, we consider that there has been no change in the appellant’s position since the delivery of the notice. Overall the evidence concerning the appellant’s voting pattern is insufficient to found a reasonable belief that proportionality has been distorted.

[112] The next group of allegations concern consequences of certain formal matters. The appellant, first, failed to renew her ACT membership in time. She belatedly attempted to remedy the defect but her cheque was returned and she was ejected from the ACT caucus. The ACT party rules provide that a member of the parliamentary party must be a member of the ACT party. We doubt that the failure to renew membership could signal a defection from the parliamentary party, but in any event any distortion of proportionality was not due to the actions of the appellant as the consequences of her oversight could have been avoided by the party accepting her late renewal application. There is nothing in this factor supporting the respondents’ case.

[113] The second formal step that was raised by the respondents as a basis for their belief was the Speaker’s declaration that the appellant was an independent MP. This had consequences in terms of adjustments to ACT’s entitlements in the House such as leader’s funding, speaking slots and question rights. For reasons already given we do not consider changes to such entitlements were distortions of proportionality in themselves. Bringing about such changes could support an inference that there had been a defection in some circumstances. In this case, however, the loss of entitlements was the consequence of actions taken by the respondents, or members of the caucus, and not those of the appellant. Caucus’ actions may have been responses to perceptions of misbehaviour on the part of the appellant, but, for reasons already given, the legislation does not cover that situation.

[114] The appellant withdrew from the party her pooled parliamentary funding after she was declared to be an independent member. We see this as a step which was necessary to her continuing functioning as a member after she had been expelled from the caucus. If she had not taken it she would not have had any funding to discharge her duties. In those circumstances the withdrawal of pooled funding was not a defection, and does not indicate that the appellant had abandoned the party.

[115] Another formal concern related to the consequential loss of an ACT member on the Education and Science Select Committee. Because Select Committee recommendations must generally be debated and approved in the House, independent action by a member in the course of Select Committee proceedings will rarely of itself be capable of indicating a distortion of proportionality. But in any event, the loss of formal representation on the Select Committee concerned was caused by the caucus decision to expel the appellant, so there is nothing in this factor which could support a reasonable belief that proportionality had been distorted by the appellant. Her willingness to support ACT principles, and to work with a newly appointed non-voting ACT member of the Committee, negates any suggestion that her subsequent conduct amounted to a distortion of proportionality. Insofar as this complaint related to the perceived ineffectiveness of the appellant on the Select Committee, it is not relevant to the issues we must decide.

[116] That brings us to the third set of allegations which were that the appellant’s actions caused a breakdown of trust and confidence with the caucus. We accept that, viewed as a whole, from the perspective of the parliamentary party leader, the actions of Mrs Huata were reasonably regarded as having caused a breakdown in the relationship of trust and confidence between her and the other caucus members. As we have said, however, the legislation only covers acts which are in themselves defections leading to changes in the number of seats held and voting strength in the House. It does not cover other kinds of perceived disloyalty, even if they are such that a member might reasonably be expelled from the party she represents in the House because of them. We must address each of the allegations made by the respondents in the light of this analysis.

[117] The alleged misleading of the public and the caucus concerned the appellant’s stomach-stapling operation and other matters, including the Pipi Foundation Trust, the reason for her ACT party membership lapsing and her work commitments. While it gave rise to a lack of trust and of confidence by her colleagues in the appellant’s judgment, it did not indicate that she had left the party.

Nor could it reasonably be treated on any other basis as an assertion of independence, having an effect on ACT’s membership in the House.

[118] The allegation that she had not met her undertaking to the caucus to ensure she could not benefit from the Pipi trust is in the same category. While her actions may have damaged the party, they are incapable of indicating that she had left it to a chart a different course. Misconduct is not the same as defection. That is also true of her failure to honour commitments to produce evidence explaining her actions to the public.

[119] The next allegation was that the appellant had attended a caucus meeting wearing transmitting equipment belonging to a television station. The exact reason for her doing so was not explored in great depth in the High Court. While we recognise that it was a very unwise action, and quite possibly one intended to damage the party (or which at least could be reasonably seen in that light) it did not affect the number of seats held by the ACT party in Parliament.

[120] The position is similar for the other matters raised by the respondents.

Breaches of caucus rules by criticism of another member are incapable of amounting to a defection and, in a political context, breaches of such rules must occur from time to time without affecting the position of members. Members at times may criticise colleagues strongly without severing their link to their party. And while the alleged complaint concerning ACT staff could indicate difficulties in working with the party organisation and a lack of trust in its employees it could not reasonably be given any significance beyond that.

[121] Nor does the combination of these alleged failures by the appellant assist the respondents. Each individual action is outside the scope of the legislation because it goes only to the trust and confidence between member and caucus and is incapable of indicating that she has defected. In combination, they indicate what could reasonably be viewed as a serious, even irreparable, breach of trust and confidence, but that is equally outside the scope of the legislation.

[122] For these reasons we are satisfied that the factors relied on by the respondents to support their belief are not sufficient to found a reasonable belief that the appellant had acted in a way that distorted ACT’s voting strength in the House. They do not indicate that she defected from the ACT party. We reverse the judgment of the High Court on this point and hold that there is no basis for a reasonable belief by the first or second respondent such as would found a lawful notice to the Speaker under the legislation.

[123] The dissenting judgment of William Young J expresses concern that our approach is likely, in future cases, to require the courts to analyse members’ conduct in the House making nuanced assessments involving tension with principles protected by Article 9 of the Bill of Rights 1688. We would suggest that, on our view of what distortion of proportionality means, such analyses will not extend to parliamentary conduct of members other than examination of how a particular member has voted and is likely in future to vote in the House. Judicial evaluation to that extent is unavoidable if the actions of the leader and the caucus concerned are to be scrutinised by the courts which, as William Young J agrees, the Act envisages.

Indeed the wider view of the concept of distortion of proportionality, which William Young J favours, could in some circumstances require a broader survey of parliamentary conduct in the House than the more confined view preferred in this judgment. Furthermore, in this case at least, the application of our approach to the facts in evidence concerning the appellant’s voting behaviour has not required a detailed examination of evidence. That is because there is simply nothing reasonably capable of supporting the respondents’ belief. So any questions concerning the precise standard of review can be left for another day.

Predetermination by the caucus

[124] On the second ground of appeal Mr Lloyd submitted for the appellant that it was apparent that the respondents had breached applicable principles of natural justice in the actions they took under ss55A to 55E in relation to the appellant. He said that they had failed to give genuine consideration to the appellant’s letter of 12 December 2003 in reply to the allegations made against her, that their minds were not open to persuasion, and they had predetermined that she should go. He relied on several media reports of public statements by members of the ACT party caucus that were in evidence. He also said that, apart from the first respondent’s bald statement that he did not find the appellant’s statement persuasive, there was no other evidence, indicating that adverse inferences should be drawn of predetermination by the caucus in relation to the decision to expel the appellant.

[125] Mr Hodder responded first that the cause of action effectively sought relief against the caucus, which was not a party. However, he also discussed the merits of the argument, submitting that because of the political context the decision was not justiciable, or at least there were limited requirements on the caucus in the context.

He noted that most of the actions relied upon had been undertaken by the parliamentary leader, who of course had already formed a reasonable belief for the purpose of giving notice to the appellant. He also rejected Mr Lloyd’s suggestion that an onus had fallen on the caucus to show evidence of proper consideration. That approach was said to be inconsistent with authority and an unwarranted intrusion into parliamentary matters.

[126] In CREEDNZ Inc v Governor-General [1981] NZLR 172, 192 Richardson J said of the principle that no one should be a judge in his own cause:

In recent years it has also been increasingly applied to administrative actions if the interests of justice make it apparent that the quality of fairness is required in those actions. In Lower Hutt City Council v Bank [1974] 1 NZLR 545, after discussing the developments in this area of the law McCarthy P, speaking for this Court, observed (p549) that whether the principles of natural justice in this respect applied to the function of the local authority in that case in considering objections made to the stopping of parts of two streets under the sixth schedule to the Municipal Corporations Act 1954 was to be decided not on any fine classification of that function as judicial or administrative but upon “a realistic examination of the legislation, the circumstances of the case and the subject matter under consideration”.

He emphasised that what is required of the authority in this regard may vary with the circumstances and the function to be discharged.

[127] The matter under consideration is a procedure for the disqualification of a member of Parliament by a notice given to the Speaker. Two conditions must be satisfied for the delivery of that notice, being basic requirements of fairness to be observed by those who exercise the power. First, the leader must make a statement as to having a reasonable belief that the member has acted to distort proportionality.

Secondly, after considering the member’s conduct and any written response made within 21 days of the notice giving reasons for the leader’s belief, at least two thirds of the party caucus must agree that the notice should be given to the Speaker. The context in which the power is exercised is however a political one. Caucus is primarily a political body and in empowering it Parliament must have accepted that political considerations could influence members’ views. The members of the caucus, however, are plainly required by the Act to exercise their powers of agreement to the disqualification of a member of their party only if, after application of the stipulated process, they determine that the member has acted in a way that has distorted the proportionality of Parliament. The process includes their giving genuine consideration to both the member’s conduct in question and any response.

Any lesser standard would simply not comply with the requirements of fairness stipulated by the Act. And given that a statutory power of constitutional importance is involved we consider that it is the Court’s responsibility to review its exercise in proceedings brought by the member of Parliament concerned.

[128] The position differs with party leaders. The Act provides for the leader to initiate and carry forward the disqualification process. It is unrealistic to suppose that the leader should do so without reaching a firm view of what the party’s interests require, and what the outcome of the process should be. Reflecting this political reality, the Act imposes obligations of natural justice primarily on the party caucus members rather than the leader. By definition the parliamentary party leader includes any person who may be acting leader during the process (s55E). The party leaders are, of course, not free from legislative restraint in the process as the belief which he or she must form has to be a reasonable one. The leader must also genuinely address whether any response by the member displaces that belief, but does not have to appraise the matter afresh, when taking part in the caucus’ decision.

For the avoidance of doubt we add that a party leader is not disqualified from voting as a member of caucus because of predetermined views on the proposition that members should agree to an expulsion notice being given.

[129] What then amounts to impermissible predetermination that negates the necessary genuine consideration by caucus members? Realistically, it is inevitable that, prior to their consideration of and making their decisions concerning possible disqualification most or all members of the caucus will have discussed with each other their perceptions of the behaviour of the member concerned and will have individually or collectively reached preliminary views as to whether the criterion for invoking the defection regime is satisfied. In this context the fact that members of caucus have arrived at such views does not mean they have unfairly prejudged the issue. By the end of the process they may still have given the matter the genuine consideration required by the Act. Parliament cannot have contemplated absolute detachment from political decision-makers in this context any more than it contemplated there would be such detachment from ministerial decision-makers in CREEDNZ (see p194 per Richardson J). What the members of the parliamentary caucus cannot, however, do is adopt a fixed view, which forecloses their minds to genuine consideration of the merits of the member’s response to allegations of conduct distorting proportionality.

[130] In the end, the requirement the appellant must satisfy on this ground of appeal is that expressed by Richardson J in CREEDNZ as follows:

Before the decision can be set aside on the grounds of disqualifying bias it must be established on the balance of probabilities that in fact the minds of those concerned were not open to persuasion and so, if they did address themselves to the particular criteria under the section, they simply went through the motions (p194).

[131] The material said to be indicative of a caucus mindset which the appellant put before the High Court included a transcript of a Television New Zealand “Breakfast” interview of the second respondent on 5 November 2003. This followed the laying of the charges of fraud against the appellant by the Serious Fraud Office. The second respondent said on the programme that the appellant’s position was now untenable and that she should resign. When asked if the appellant would be expelled he said:

I think that is the natural consequence of that. There is a due process associated with that. I can’t prejudge or anticipate that.

When it was pointed out that the appellant had not been convicted of any offence he reiterated that her position was untenable.

[132] On 7 November 2003 it was reported that the second respondent had said that as acting leader he intended to instigate procedures to confirm the appellant’s expulsion. On 10 November, in a press release, he said that there was no prospect of her being allowed to rejoin the party and that she was distorting the proportionality of Parliament. The same day he wrote in similar terms to the Speaker and notified him that the appellant was no longer a member of the ACT caucus and had become an independent MP. On 11 November, during a radio interview, he said:

…she has no right to be in Parliament. She has disgraced herself, she refused to resign. She has no shame, no remorse. We will leave no stone unturned to have her thrown out.

[133] It was also reported on 9 December 2003 that Mr Wang, the next person on the ACT list, had visited the House and that ACT had been familiarising him for what it believed was the imminent exit of the appellant from Parliament. On the same day the appellant brought these proceedings and, as indicated, by 11 December had obtained interim relief.

[134] In response to this material the first respondent in an affidavit said that he had received and circulated to the caucus the appellant’s reply of 12 December to the notice. It was considered by the ACT caucus at a meeting on 16 December 2003.

The first respondent said:

I attended that meeting and confirm that the letters from Ken Shirley to Ms Huata dated 10 and 13 November 2003, along with Ms Huata’s reply, and the Chapman Tripp memorandum to members of the ACT caucus dated 15 December 2003, were available to and considered by the members of the ACT caucus who attended that meeting. I did not consider Ms Huata’s reply persuasive, and believe that my view was shared by the members of caucus present. After discussion, the members of caucus present at that meeting voted unanimously in support of me writing to the Speaker giving notice under sections 55A, 55C and 55D of the Electoral Act.

[135] No other member of the caucus gave evidence of the circumstances in which its members had agreed under s55D(c) to an expulsion notice being given. The caucus minutes for 16 December record that the first respondent believed the party was free to go ahead with the expulsion and that he sought approval to write to the Speaker in terms of the statutory provisions. The minute records that there was a unanimous vote from the caucus expressing agreement with the giving of the notice.

The appellant was taken to have dissented.

[136] The question is whether the appellant has shown that the members of the caucus failed to give genuine consideration to the appellant’s response. This question was not directly addressed by Gendall J, and accordingly we have ourselves given it fresh consideration. We accept that, in the face of compelling evidence of predetermined views being expressed before a decision is taken, the Court will generally require evidence showing that the decision-makers nonetheless remained open-minded at the actual hearing. In these circumstances, however, the mere expression of such views carries little weight unless they are so strong as to indicate that the decision makers have closed their minds. In our view, there is no such evidence here. The statements relied on by the appellant are largely those of the leader or acting leader. These do not take the appellant far because the section requires that the leader will have formed a reasonable belief that proportionality has been distorted before the caucus considers the members’s reply and decides whether or not to support the expulsion. There is nothing in the evidence to indicate that the leader did not consider her response. Mr Lloyd put great weight on one matter which he said did involve caucus: the bringing of Mr Wang to Wellington. We are not persuaded that the evidence shows that the caucus was responsible for his presence, nor that the event had such significance as to give rise to an inference that the minds of any caucus members were tainted by predetermination. Such preliminaries did not indicate a completely closed mind. Any other statements made by or reflecting on attitudes within the caucus are insufficient to indicate that the statutory procedure would not have been properly followed.

[137] Given the absence of any independent evidence of predetermination, the evidence of proper consideration given in the affidavits is more than adequate to refute the assertion that the decision was predetermined. It is true that the first respondent’s affidavit throws little light on the point, simply saying that his view that the appellant’s reply was not persuasive was shared by members of caucus at the meeting. Given that it is the caucus members other than the leader who have the primary obligation to observe natural justice, in any future cases it would be preferable if at least one of them gave affidavit evidence. In this case, however, for the reasons we have given we are not satisfied that the evidential material of the appellant, which we have summarised, gives rise to an inference that any of the caucus members, including the party leader and acting leader, had foreclosed their minds in advance as to how they would address the appellant’s reply, and as to whether they would consent to the notice being delivered. The inference we draw from the first respondent’s affidavit evidence is that each read the appellant’s reply when it was received on 12 December. Nothing thereafter indicates that they did not make a genuine decision to reject the appellant’s answers and to consent to their leader proceeding to give the statutory notice. We note that caucus had before it legal advice explaining the need to approach the decision with an open mind.

Accordingly, in general agreement with Gendall J, we hold that the appellant has not made out her case on this ground.

[138] Mr Hodder also submitted that, insofar as the allegations of predetermination were against the caucus, there was a difficulty in that it was not named as a party to the proceeding. We agree that the pleadings were incomplete on this point, but need not consider it further as we have found that there was no predetermination.

Summary and Conclusion

[139] The appeal is concerned with whether Mr Prebble and Mr Shirley, and the ACT parliamentary caucus, of which they were at the relevant times leader and acting leader, are able to give and agree to the giving of lawful notice of disqualification of Mrs Awatere Huata from continuing to be a member of Parliament. The basis on which the leaders intend to give the notice is that Mrs Huata has acted in a way which has distorted and is likely to continue to distort the proportionality of political party representation in the current Parliament. The Court has satisfied itself that the actions of the leaders and caucus members concerned are not protected by the privileges of Parliament, and that the Court is able to and must review their compliance with the requirements of the legislation for exercise of the powers concerned.

[140] On the ordinary meaning of the provisions of the Electoral (Integrity) Amendment Act 2001, read in its context and having regard to its purpose and legislative history, the necessary basis for the exercise of the disqualification power is that the member has acted in a way which alters the number of seats held by the party and thus the voting strength in the House of Representatives of a party relative to that of other parties, and any independent members. The actions of Mrs Huata of concern to the leaders are either of insufficient significance reasonably to be regarded as amounting to altering the number of the party’s seats in the House or its voting strength. Insofar as they relate solely to allegedly disloyal conduct, they are not of a kind which may form a basis for a disqualification notice. The legislation is concerned to regulate behaviour in the nature of defection and Mrs Huata has demonstrated that this is not the character of the conduct alleged against her.

[141] The appeal is accordingly allowed on this ground. The Court has rejected a separate ground of appeal that members of the ACT parliamentary caucus did not genuinely consider Mrs Huata’s reply to the leader’s accusations before agreeing that steps should be taken to have her disqualified.

[142] Because, however, of the finding of a majority of this Court on the first ground of the appeal, the judgment of the High Court is set aside, and in its place there will be judgment for Mrs Huata and an order prohibiting the delivery to the Speaker of the House of Representatives of a notice of disqualification founded on the grounds contained in the letters from the second respondent to the appellant dated 10 and 13 November 2003.

[143] The appellant is entitled to costs in the High Court and in this Court. The costs in the High Court are to be fixed by that Court. We award the appellant costs in this Court of $6000 in relation to the appeal together with reasonable disbursements, including travel and accommodation costs of two counsel, to be agreed by counsel and failing agreement to be fixed by the Registrar.

HAMMOND J

[144] I agree with the conclusion reached by the majority and generally with the reasons they give. The judgment prepared by McGrath J has reached that conclusion by an orthodox consideration of text and purpose. I propose to add only some short remarks in support of the approach adopted in that judgment, as contrasted with the distinctly broader “sending off” thesis which is relied upon by the respondents, and which was largely espoused by Gendall J. That thesis, in the simplest terms, is that Mrs Huata MP has brought matters on her own head in Parliament; that there was a basis on which the respondents could reasonably have taken the view that she should not be in Parliament; and that the legislation is broad enough to permit her despatch from Parliament by the actions of the respondents.

[145] I start with the proper approach to the construction of the words in the statute which we are required to consider:

[acting] 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 …

[146] Generally speaking, the statutory text of an enactment is the starting point.

But it becomes intelligible only because of context and whatever properly recognised background assumptions give it content. In most cases, the context is quite unproblematic, and the assumptions on which the statute proceeds are widely shared and uncontroversial. But then there are cases in which the text will be overinclusive, or under-inclusive, or ambiguous, or very complex, and Courts may then have to look elsewhere for assistance. This is of course the standard criticism - and it is a valid one - of orthodox statutory interpretation as it developed over the last couple of hundred years, as being too narrow in some cases. (See Sunstein, “Interpretive Principles for the Regulatory State” in, After the Rights Revolution

(1993) at 160 et seq).

[147] In hard cases, considerations of statutory purpose, legislative history, or even the sheer reasonableness of one viewpoint or another (which some might call, “pragmatism”) will help. But even those sorts of techniques may not, in the end, be helpful or dispositive of the given case. Occasionally, courts have to resort to broad interpretive principles, or legal policy. The point is well made by Francis Bennion, Statutory Interpretation (4 ed 2002):

No Act can convey expressly the fullness of its legal effect. Indeed only a small proportion of this intended effect can be conveyed by the words of the Act. For the rest, Parliament assumes that interpreters will draw necessary inferences. Once inference is that, unless the contrary intention appears, Parliament expects relevant aspects of legal policy (which is based on public policy) to be applied. An Act does not operate in a vacuum, but as a part of the whole corpus juris or body of legal rules and principles. Some principles of legal policy are embodied in existing legal rules and maxims. It is a presumption based on the nature of legislation that these are intended by the legislator to be attracted, so that here legal policy comes in at one remove.

Whichever way legal policy falls to be applied in the construction of legislation it bears the same essential character, being the peculiarly legal aspect of the general area that judges call public policy. So we may find them referring to it either as legal policy or public policy (at 657-8).

[148] The problem in this case is acute: Parliament enacted a statute going to the heart of its own workings which does raise very real interpretive difficulties. But in my view, of itself that recognition is the starting point for the resolution of this case:

the interpretation to be adopted here should be the narrowest workable interpretation of the provision under consideration. I say this for three reasons of legal policy.

[149] The first is that it is quite undesirable to have Courts passing on what happens (or “conduct”) in Parliament. The traditional wisdom of a sharp separation of powers between Parliament and the Courts is of critical importance. Self-restraint is a cardinal judicial virtue in this subject area. A broader interpretation of the provision under consideration in this case would leave open the distinct possibility of Judges having to pass on what has transpired in the proper domain of Parliament.

[150] My second reason is that another important matter of legal policy which comes into play in this case is the avoidance of constitutional doubts. Constitutional doubt could arise here at two levels: “inter-branch” conflict between Parliament and Courts as to where the lines of authority between those respective institutions are to be drawn; and, “internal” doubts in Parliament as to where the line is to be drawn as to the meaning of this particular provision. Put at its simplest, in my view it is better to have the relatively bright line McGrath J has set out, rather than the looser boundaries of the “sending off” thesis (even where the sending off is by the captain of the parliamentary player’s own team) which is espoused by the respondents.

[151] My third reason of legal policy goes to the position of individual Members of Parliament. An appeal to the sentiments of a long dead Englishman

(Mr Edmund Burke) to support the central role of Members of Parliament in New Zealand today does not hold a great deal of attraction. New Zealanders (and New Zealand Judges) should be able to articulate their own 21st Century justifications for the independence of Members of Parliament in the more complex world of MMP governance which this country has adopted.

[152] In a more homogeneous New Zealand, it was entirely understandable that “consensus” was regarded as a prime desideratum of social policy and governance.

But the circumstances of our own times, and the mode of governance recently adopted by the country, might suggest that a powerful case can be made out for holding that the prime social and governance imperative is now not so much towards consensus, but towards something very different: the evolution of a system that makes possible peaceful and co-operative co-existence with others in the face of what might well ultimately be unresolvable disagreements. As Isaiah Berlin put it, “…some values may turn out to be incompatible, so that if destructive conflict is to be avoided compromises have to be effected and a minimum degree of toleration, however reluctant, becomes indispensable”. (Jahanbegloo, Conversations with Isaiah Berlin (1992) at 44.) The acceptance of pluralism and diversity, while at the same time broadening shared interests and fostering arrangements that encourage people to acquiesce in the differences of others, has a great deal to be said in its favour.

[153] In such a society, dissent does not function or have value simply as an individual right or a matter of conscience, as Mr Burke would have it, important though those matters are. My point is rather that reasoned dissent and balanced debate must be the very essence of a healthy democratic society. Rigid adherence to the party line might have held some attraction at other times, under the pre-MMP system of governance. But today (whether as an interpretive guide or norm, or as a matter of legal policy) if weight has to be given to one side or other, both for intrinsic and instrumental reasons, the sturdy independence of Parliamentarians in New Zealand should be preferred. In any event, the independence of Parliamentarians should not be displaced save on the unequivocal utterances of Parliament itself.

[154] In short, if there is any doubt about meaning, it should be resolved in favour of the view which least trenches upon the role of Members of Parliament in New Zealand.

[155] Finally, I recognise that the interpretation adopted by the majority (and which I support) will not resolve all the difficulties of this legislation. That does not trouble me. Judicial minimalism (in the sense of deciding only this case, and no more) seems to me to be important in this instance, in that it is less likely to cause any ongoing damage to the central democratic institution in this country.

WILLIAM YOUNG J

[156] I would dismiss the appeal.

[157] I agree with the majority judgment prepared by McGrath J as to the predetermination cause of action and confine my remarks to grounds upon which the majority would allow the appeal.

[158] I have been troubled by justiciability and privilege issues:

1. I see the giving of written notice to the Speaker under s55A(3)(c) as being within the phrase “proceedings in Parliament” used in art 9 of the Bill of Rights 1688. This 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.

It follows that the Courts should not take steps to restrain the giving of such a notice unless such steps have legislative warrant.

2. The argument for treating a s55D(b) notice as being within art 9 is not so strong (as there is a difference between a notice given to the Speaker at the end of the process and a notice to a member of Parliament which begins the process). But if there is a challenge in judicial review proceedings to a s55B(b) notice, the defence of the notice is likely to focus on the conduct of the member concerned in the course of “proceedings in Parliament”. In the context of a contention that a member’s behaviour has distorted proportionality, such scrutiny would seem to me to be within (although perhaps near the margin) of the sort of questioning or impeaching of “freedom of speech and debates or proceedings in Parliament” which is prohibited by art 9 of the Bill of Rights 1688, as discussed by the Privy Council in Jennings v Buchanan [2004] UKPC 36. I note that a similar point was touched on, although not really developed in detail, by Fisher J in Peters v Collinge [1993] 2 NZLR 554 at 573.

[159] Despite these reservations, I am prepared to decide this case on the assumption upon which it was argued, namely that there is a right to apply for judicial review. In part my willingness to do so is because, on the peculiar facts of this case, the competing arguments of the parties can be assessed, at least on my approach, without analysis of the appellant’s participation in debates and proceedings in Parliament and hence without the necessity to question or impeach such participation. More importantly, the language of s55D(b) invites the Courts to engage, in appropriate cases, in judicial review. I have in mind here particularly the phrase “believes on reasonable grounds”. Further, a perusal of the Parliamentary history of the legislation shows that Parliament contemplated the possibility of judicial review and saw this as a protection for members. Indeed, I am in general agreement with the rather more elaborate discussion on this topic in the judgment prepared by McGrath J in paras [60]-[67] and for the reasons he gives do not see art 9 of the Bill of Rights 1688 as excluding judicial review in this case. However, as will become apparent I do not regard issues of parliamentary privilege as irrelevant.

[160] The majority propose a strict construction of the relevant sections under which the only actions by a member which can relevantly distort proportionality involve party defection which must, in a disputed case, be established by analysis of voting behaviour.

[161] This approach is very much driven by the constitutional and perhaps the human rights contexts (see paras [92]-[97] of the judgment). I agree that these considerations are relevant and, in themselves, provide some support for a strict approach. But I think that there are two other considerations which point the other way:

1. The corollary of the strict construction which is favoured is that any likely future inquiry into the application of these sections will require the Courts to analyse closely the proceedings in Parliament in a way which will necessitate nuanced assessment of conduct in the House involving prima facie conflict with art 9 of the Bill of Rights. It is one thing to accept, as I do, that the process is justiciable. It is another to treat as irrelevant traditional reluctance on the part of the Courts to become involved in the evaluation of conduct within the House.

2. I see no reason to think that powers conferred by these sections will be abused. There are serious constraints on the ability of a leader of a Parliamentary political party to act unfairly. The expulsion of a member of Parliament and the associated probable imbroglio will almost inevitably be damaging, in a political sense, to a party. As well, if such expulsion is seen by the public as being unfair or inappropriate, there will be electoral consequences at the next election. These two factors mean that the process will not be embarked on lightly. Further, the 21 day period required permits not only an opportunity for an affected member of Parliament to respond to complaints but also, and importantly, a cooling-off period. The requirement for a two-thirds majority to be in favour of expulsion means that there is limited scope for idiosyncratic or capricious action by a leader of a Parliamentary party.

[162] So I am unconvinced that there is a need for a strict interpretation of the statutory language. I am also unenthusiastic about any approach which would require close analysis of Parliamentary conduct. But in the end I do not see the case as turning on whether a strict or broad interpretative approach is taken. This is because, on either approach, the result still has to be consistent with the language used by Parliament. For myself, I simply cannot extract from that language the meaning which is attributed to it by the majority.

[163] If Parliament had intended that the concept of distortion of proportionality be confined to the way in which a member of Parliament votes, I would have expected the legislation to identify voting against party policy or instructions as being the basis for the giving of a notice. Further – and to revert to a point already made - given the likelihood of judicial review in cases where this procedure is adopted, I think it unlikely that Parliament would have intended the Courts to become closely involved in an analysis of conduct which falls, prima facie, within the protection of art 9 of the Bill of Rights 1688.

[164] I agree with the majority that party defection was the key mischief to which the sections were aimed. But I think that the legislature recognised that the legislative net would have to be cast wider than what would be necessary to catch only the precise party-hopping conduct which prompted the legislation. To put it another way, party-hopping is only a subset of the broader concept of distortion of proportionality which was chosen by Parliament.

[165] In para [86] of the judgment prepared by McGrath J, there is reference to the remarks of the Hon Liane Dalziell made in the second-reading debate which I see as sufficiently helpful to repeat:

When one stands for election, either as a list or a constituency MP, there should be an absolute guarantee to electors that that is the party one will continue to be a part of. Anyone who enters Parliament, elected as a member of a political party, who then resigns from that party, should resign from Parliament. … Unfortunately, we have seen the unconscionable behaviour of the late 1990s, and that is why this Bill is needed.

(Emphasis added) I would see the sentence I have italicised as reflecting the broad concept of distortion of proportionality, the second sentence as an instance of conduct which infringes that concept and the third sentence as a reference to the mischief which prompted the legislation.

[166] At the risk of being thought to be painfully literal, I note that the statute refers to the “proportionality of political party representation”. It does not refer to voting patterns. Following the last election, ACT was represented in Parliament by nine members of Parliament. It now has eight. That difference is sufficient to amount to a distortion of “proportionality of political party representation in Parliament” even if the appellant continues to vote generally in the same way as ACT members.

Further, it seems obvious to me that this distortion is highly likely to continue while the appellant remains in Parliament.

[167] I think it so obvious that proportionality of political party representation in Parliament has been distorted that the only real question is whether it was open to Mr Shirley to form the belief on reasonable grounds that the appellant, by her actions, had brought that result about, ie had distorted proportionality. This is the critical point upon which my approach differs from that favoured by the majority.

On their approach, the proportionality of Parliamentary representation has been distorted, not by the appellant but rather by her former Parliamentary colleagues in the ACT party. On this approach, the causative relationship (if any) between her actions and their reactions (which led directly to the current distortion of proportionality) is irrelevant.

[168] As a matter of ordinary English, the words “has acted in a way that has

[brought about a particular result]” can encompass a situation in which a person’s conduct has resulted in another person taking the final step which brings that particular result about. So the rugby player sent off for foul play can be said to have “acted in way” that reduced his team to 14 players even though it is equally true to say that it was the referee who sent him off. I can see no basis for construing the statutory language otherwise than in accordance with its ordinary meaning.

[169] The underlying issue is therefore simply one of fact (or perhaps opinion). If the appellant’s actions meant that it was practically impossible for other members of the ACT caucus to continue to work with her as a colleague and thus resulted in her expulsion from the Parliamentary party, then, as a matter of ordinary English usage, it follows that she had acted in a way which distorted the proportionality of party representation as determined at the last general election.

[170] I am well satisfied that Mr Shirley believed this to be the case and that he had reasonable grounds for this belief.

[171] So, for these reasons, which are broadly similar to those expressed by Gendall J, I would dismiss the appeal.

Solicitors:

Keegan Alexander, Auckland for Appellant

Chapman Tripp, Wellington for Respondents

*************

Appendix A

Sections 55A – 55E Electoral Act 1993

55A Member ceasing to be parliamentary member of political party

(1) This section applies to every member of Parliament, except a member elected as an independent.

(2) The seat of a member of Parliament to whom this section applies becomes vacant if the member of Parliament ceases to be a parliamentary member of the political party for which the member of Parliament was elected.

(3) For the purposes of subsection (2), a member of Parliament ceases to be a parliamentary member of the political party for which the member of Parliament was elected if, and only if,—

(a) the member of Parliament delivers to the appropriate person a written notice that complies with section 55B; or

(b) the parliamentary leader of the political party for which the member of Parliament was elected delivers to the appropriate person a written notice that complies with section 55C.

55B Notice from member

A written notice under section 55A(3)(a) must—

(a) be signed by the member of Parliament by whom it is given; and

(b) be addressed to the appropriate person; and

(c) notify the appropriate person that the member of Parliament—

(i) has resigned from the parliamentary membership of the political party for which the member of Parliament was elected; or

(ii) wishes to be recognised for parliamentary purposes as either an independent member of Parliament or a member of another political party.

55C Notice from parliamentary leader of party

A written notice under section 55A(3)(b) must—

(a) be signed by the parliamentary leader of the political party for which the member of Parliament who is the subject of the notice was elected; and

(b) be addressed to the appropriate person; and

(c) be accompanied by a statement that complies with section 55D.

55D Form of statement to be made by parliamentary leader

The statement referred to in section 55C(c) must be in writing and signed by the parliamentary leader concerned, and must—

(a) state that the parliamentary leader reasonably believes that the member of Parliament 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; and

(b) state that the parliamentary leader has delivered to the member of Parliament concerned written notice—

(i) informing the member that the parliamentary leader considers that paragraph (a) applies to the member and the reasons for that opinion; and

(ii) advising the member that he or she has 21 working days from the date of receiving the notice to respond to the matters raised in the notice by notice in writing addressed to the parliamentary leader; and

(c) state that, after consideration of the conduct of the member and his or her response (if any) by the parliamentary members of the political party for which the member was elected, the parliamentary leader of that party confirms that at least two-thirds of the parliamentary members of that party agree that written notice should be given by the parliamentary leader under section 55A(3)(b).

55E Definitions

For the purposes of sections 55A to 55D, unless the context otherwise requires,— appropriate person means—

(a) the Speaker; or

(b) if there is no Speaker, or the Speaker is absent from New Zealand, or the member of Parliament giving a notice under section 55A(3)(a) or the subject of a notice under section 55A(3)(b) is the Speaker, the Governor-General parliamentary leader, in relation to a political party, means—

(a) the member of Parliament recognised for the time being as the parliamentary leader of the political party by the majority of parliamentary members of that party; or

(b) the member of Parliament for the time being acting as the parliamentary leader of that party political party for which the member of Parliament was elected means—

(a) the political party in whose party list the member's name appeared at his or her election; or

(b) the political party identified as the political party for which the member is a candidate, in the nomination paper nominating the member as a constituency candidate, at his or her election

*************

Appendix B

13 November 2003

Donna Awatere Huata MP

10th Floor

Bowen House

Dear Mrs Awatere Huata

I have received your letters of 10th and 12th November and write in reply to them but also as an elaboration of points underlying my notice to you dated 10th November, pursuant to provisions of s55A of the Electoral Act. This letter updates that notice.

You may assume that the 21 day notice period will run from the date you receive this letter.

In addition to the reasons set out in that letter for considering that you have 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, you should be aware of additional reasons.

The effectiveness of party representation in Parliament is substantially dependent on the cohesion and co-operation of a party. As you know, when the members align their activities to focus on agreed priorities, when they back each other up in speeches, in informal situations, with the media, and in implementation of concerted strategies, the impact is magnified. Your former colleagues and I believe that your conduct made it impossible to include you in the normal planning and execution of party efforts in Parliament.

Members in Parliament must be able to rely on each other’s word. They must be confident that their plans and strategies will be kept confidential. They must be able to assume that they will not be undermined by denigration or mischievous diversionary attacks from colleagues.

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

***** ENDS *****

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