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A Parliament in Crisis The Decline of Democracy in New Zealand Tom McRae


A Parliament in Crisis The Decline of Democracy in New Zealand Tom McRae Copyright Š 1994 Tom McRae


Dedication In memory of Noel. Thanks for everything, including the title.

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Table of Contents Preface ...................................................................................................................... v 1. Constitutional Reform And Parliamentary Control ......................................................... 1 1.1. Introduction ................................................................................................. 1 1.2. New Zealand's Westminster Model ................................................................... 2 1.3. Evolution Of The Westminster System .............................................................. 3 1.4. The Legislature Versus The Executive And The Role Of The Speaker ..................... 4 1.5. The Conduct Of The Processes Of Parliamentary Reform ..................................... 7 1.6. The Constitution, Members Of Parliament And The Executive ............................... 8 1.7. The Main Functions Of Parliament ................................................................... 9 1.8. The Subsequent Analysis .............................................................................. 12 1.9. Conclusion ................................................................................................. 13 2. Select Committee On Standing Orders 1951 ................................................................ 15 2.1. Procedural Niceties ...................................................................................... 15 2.2. Political-Social Climate ................................................................................ 17 2.3. The Mode Of Change ................................................................................... 18 2.4. The New Rules For The House ...................................................................... 18 2.5. Probity Of Records ...................................................................................... 21 2.6. Absence Of Written Records ......................................................................... 21 2.7. Executive Dominance .................................................................................. 22 2.8. The Position Of The Speaker ......................................................................... 24 2.9. Policy Communities ..................................................................................... 25 2.10. Financial Management & Control ................................................................. 26 2.11. The Debate In The House: The Procedure ...................................................... 28 2.12. The Debate In The House: The Substance Of The Reforms ................................ 32 2.13. Acquiescence Or Apathy Of Members? ......................................................... 35 2.14. The 1951 Changes In Retrospect .................................................................. 36 2.15. The Holland Administration In Action ........................................................... 37 2.16. The Case Of The 1952 Finance Bill ............................................................... 38 2.17. Conclusion ............................................................................................... 42 3. Report Of The Select Committee On Standing Orders, 1962 .......................................... 43 3.1. Pre-1960 Election Policy Statements ............................................................... 43 3.2. The Speech From The Throne ........................................................................ 45 3.3. The Scene Is Set .......................................................................................... 47 3.4. The Report Appears ..................................................................................... 48 3.5. The Recommendations ................................................................................. 49 3.6. The Debate In The House ............................................................................. 50 3.7. Holyoake's Role And Executive Dominance ..................................................... 51 3.8. Conclusion ................................................................................................. 61 4. Administrative Changes Related To The 1962 Exercise ................................................. 63 4.1. The New Select Committee On Public Expenditure ............................................ 63 4.2. The Submissions And The Reform Of Financial Procedures ................................ 65 4.3. The Submissions In Retrospect ...................................................................... 68 4.4. The Debate Concludes ................................................................................. 68 4.5. The Holyoake Administration In Action .......................................................... 70 4.6. The 1962 Mccarthy Commission .................................................................... 72 4.7. A Parliamentary Officer Is Created ................................................................. 74 4.8. Conclusion ................................................................................................. 76 5. The Period Between The Reforms Of 1962 And 1985 ................................................... 78 5.1. Introduction ............................................................................................... 78 5.2. The Main Changes In 1968 ........................................................................... 78 5.3. 1968-Financial Procedures ............................................................................ 80 5.4. 1968-Specialist Select Committees ................................................................. 82 5.5. 1968 Committee Proceedings, Opening To The Public And Recording .................. 82 ii


A Parliament in Crisis 5.6. The Main Changes In 1972 ........................................................................... 84 5.7. The 1974 Review ........................................................................................ 86 5.8. The Changes In 1979 ................................................................................... 87 5.9. The National Development Bill 1979 .............................................................. 90 5.10. Conclusion ............................................................................................... 93 6. Report Of The Select Committee On Standing Orders 1985 ........................................... 94 6.1. Labour's New Policies .................................................................................. 94 6.2. The 1985 Standing Orders Committee ............................................................. 99 6.3. The Report Is Tabled ................................................................................. 101 6.4. A New Era Of Management For Parliament .................................................... 102 6.5. The Diminished Role Of The Clerk Of The House ........................................... 104 6.6. The Coad Report ....................................................................................... 106 6.7. The Diminished Status Of The Controller And Auditor-General ......................... 106 6.8. The Lange-Palmer Administration In Retrospect ............................................. 109 7. The Strange Case Of The Two 1990 Finance Bills ..................................................... 112 7.1. The Case Of The "Tacked Bill" .................................................................... 112 7.2. Labour Speeds Up The Process .................................................................... 113 7.3. "Urgency" And "The Public Interest" Reinterpreted ......................................... 114 7.4. Finance Bill (No. 2) Charts New Lows .......................................................... 114 7.5. Finance Bill (No. 2), Second Reading ............................................................ 118 7.6. Finance Bill(No. 2) In Committee ................................................................. 119 7.7. The New Bills Are Legitimised .................................................................... 121 7.8. Finance Bill(No. 4) Makes Its Appearance ..................................................... 122 7.9. Finance Bill(No. 4) Is Introduced ................................................................. 123 7.10. Finance Bill(No. 4), Second Reading ........................................................... 125 7.11. Finance Bill(No. 4), The Committee Of The Whole House .............................. 125 7.12. Finance Bill(No. 4) Read A Third Time ....................................................... 127 7.13. Comment On The 'Fast-Track' Process ......................................................... 128 7.14. Fast-Track Electricity 'Reform' ................................................................... 129 7.15. No Integrated Debate On The Economy ....................................................... 130 7.16. Overseas Comment On The "Omnibus Bill" Process ...................................... 132 7.17. Conclusion ............................................................................................. 134 8. Outstanding Problems Of Parliamentary Procedure .................................................... 135 8.1. Legislative Change And The Policy Community ............................................. 135 8.2. Budgetary And Financial Control ................................................................. 138 8.3. National Comes To Power .......................................................................... 148 8.4. National's Views On Parliament ................................................................... 149 8.5. National's 1991 Budget .............................................................................. 150 8.6. National's 1991 Budget Moves Forward ........................................................ 151 8.7. The Scale Of The 1991 "Budget" Exercise ..................................................... 152 8.8. External Comment On The 1991 Budget ........................................................ 162 8.9. Lack Of Publicity For Reform Exercises ........................................................ 165 8.10. Public Service Power Over Select Committees .............................................. 166 8.11. Lack Of Fair And Consistent Process .......................................................... 175 8.12. Conclusion ............................................................................................. 181 9. The Reforms In Retrospect: Conclusion ................................................................... 182 9.1. Executive Dominance ................................................................................ 182 9.2. Speaker Partisanship .................................................................................. 184 9.3. The Power Of The Party Whips .................................................................... 185 9.4. The Power Of The Public Service ................................................................. 186 9.5. Financial Management And Control .............................................................. 187 9.6. The Reform Process Faulted ........................................................................ 188 9.7. Conclusion ............................................................................................... 189 Bibliography .......................................................................................................... 195 Name Index ........................................................................................................... 227 Glossary of titles and terms ....................................................................................... 232

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List of Figures 1.1. The Main Functions of Parliament ............................................................................ 9 2.1. The Finance Bill, 1952 ......................................................................................... 39 8.1. Financial, Budget Process, Westminster. 1983. Table A ............................................ 139 8.2. Financial, Budget Process, Westminster. 1983. Table B ............................................ 140 8.3. Budget Process, Ottawa. May 1985 ....................................................................... 141 8.4. Budget Process, Ottawa. Dec 1985 ....................................................................... 142 8.5. Flowchart of 1991 New Zealand Budget Process. pp 8 .............................................. 153 8.6. Flowchart of 1991 New Zealand Budget Process. pp 8 .............................................. 154 8.7. Flowchart of 1991 New Zealand Budget Process. pp 8 .............................................. 156 8.8. Flowchart of 1991 New Zealand Budget Process. pp 8 .............................................. 157 8.9. Flowchart of 1991 New Zealand Budget Process. pp 8 .............................................. 158 8.10. Flowchart of 1991 New Zealand Budget Process. pp 8 ............................................ 159 8.11. Flowchart of 1991 New Zealand Budget Process. pp 8 ............................................ 160 8.12. Flowchart of 1991 New Zealand Budget Process. pp 8 ............................................ 161 9.1. Executive versus the Legislature. 1854-1994 .......................................................... 182

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Preface THIS BOOK has evolved from a masters thesis in politics completed at Victoria University, Wellington in 1993. It was titled The Reform of Parliamentary Control: A Constitutional and Procedural History of the New Zealand House of Representatives, 1951-90. The presentation is now in a double-sided format, with page headings derived from the chapter and section titles, marginal notes and a compressed bibliography. Thanks are due to the staff at SPOKEN WORDS (1991) LTD and REDDFISH INTERGALACTIC, as well as Phyllis Winkler, Department of Computer Science, Stanford University and John Berlin at the TeX Users Group, Santa Barbara, California. Their help has been invaluable in solving puzzles with the various computer programs, especially LaTeX. Stuart Wilsons work has been most exceptional in bringing together much of the finer detail. Mark Cubey's fine work on the cover and title page designs must also be noted. The text of this version is substantially the same as that of the original thesis. However, changes have been made. A new chapter, No 7, has been added which deals solely with the passage through the House of Representatives of two Finance Bills, Nos. 2 and 4 of 1990. This will give readers, particularly those overseas, an insight into the depths into which financial and budgetary management procedures have sunk since 1914. Also included are references to the Reagan Revolution, drawn from the work of David A. Stockman. A new Section of Chapter 5 is devoted to the 1979 National Development Bill. The book of this episode by Mr Harold Evans of Christchurch has been drawn from. A fuller Letters Appendix has been included; this contains copies of the original letters written to certain of the more important correspondents. These are not in the deposited thesis. Also, an extensive Index of Names and a Glossary of Terms has been added. Use has also been made of additional parts of the work of Professors J.K Galbraith, Martin J채nicke, Carole Pateman, Samuel. C. Patterson and Anna Yeatman; also, as an indulgence, a leap back in time has been made to Dean John Colet and the New Learning of the Reformation. Finally, there must be acknowledgement of those who have encouraged the production of this work, and aided greatly with proof reading. At least George I now has his proper mention and most of the split infinitives have been cleansed away. Original Thesis Abstract THE REFORM PROCESS of the New Zealand House of Representatives has been studied. The procedure and operation of the various reforming committees, Standing Orders Committees, between 1951 and 1990, were examined in detail. Comparisons were made with procedures at Canberra, Ottawa and Westminster. It was noted that the Executive, and its advisors, can dominate the whole parliamentary process. There is also no legal or constitutional constraint on increasing the membership of the Executive Council or Cabinet. The parliamentary committees are only generalist, the same structures scrutinising legislation, conducting inquiries and the audit process. No pressure exists to have these three very different functions separated along overseas practice. Committees are poorly serviced, have no full verbatim recording of proceedings and have public(civil) servants providing the major technical input, even to the deliberative stage. 1962 saw major reviews of expenditure control systems. The reviews were badly researched and ill co-ordinated. A chance was missed to introduce accountability concepts similar to overseas practice as well as raise the status of the Controller and Auditor General, a problem since last century. Reforms in 1985 intended to provide exclusive full-time staff fully responsible to select committees. This has not been done. A Parliamentary Service Commission was established with the intention of giving the House the independence of overseas bodies. The new Commission then proceeded to allow Cabinet-directed Treasury-serviced teams to inquire into the provision and operation of the services provided for the House and Parliament. The Executive dominates by rapid passing of legislation without v


Preface

prior notice or consideration through the normal stages. Urgency is freely used, legislation with retrospectively acting clauses is passed, and new bills are tacked on to others in their final stages in the House, without notice or committee examination. No wide policy community was found concerned enough to proffer ideas for reform of the parliamentary process. Indifference was found in the law and accountancy professions and a lack of awareness in education and church circles. Without substantial change of attitudes in the New Zealand community, the Executive, and its advisors, will continue to completely dominate the New Zealand House of Representatives. Acknowledgements SINCERE APPRECIATION is felt for the decision of Professor Margaret Clark which opened the gate so the original thesis could be started. My supervisor Dr Elizabeth McLeay is also thanked for the extensive time, valuable input and freely given advice, as well as the many corrections given from her knowledge of Westminster parliamentary systems. Also other staff and fellow students of the Department of Politics are thanked for their support. Dr Reggie Mascarenhas, Reader in Public Policy, is thanked for the provision of advice, guidance and literature covering the politics of financial control systems of legislatures. The debt of gratitude owed Library Staff for helping in the research needed for my thesis must also be recorded. Superb help for the presentation came from Alison and Noel Wilson, Suzanne Freear and Deirdre Macken. They all provided valuable research input, advice and support. Staff at the New Zealand House of Representatives also provided valuable input. I am deeply indebted to the Clerk of the House, Mr David McGee and his staff, especially Miss Ailsa Salt, Miss Mary Harris, Miss Kirsty Burnett, Mr Bill Ogier and Mr David Dunbar. Mr Ian Matheson, the Parliamentary Librarian proved a willing listener and provider as were his staff, especially Miss Katherine Close, Miss Robyn Emett, Mr Michael Pringle and Mrs Nedra Shand. Miss Eileen Edwards, previously Editor of Debates is also thanked for her interest and contributions. Mr Peter Brookes, General Manager, Parliamentary Services, is thanked for his time taken answering my many queries. Access to material and experience from the Parliaments at Canberra, Ottawa and Westminster was freely forthcoming. At times the generosity was breathtaking, as was the short time needed for my many queries to be answered. The needs of this thesis were often surpassed by the sheer volume of material sent. Mr Harry Evans, Clerk of the Senate, Canberra is thanked as is Miss Anne Lynch. At Ottawa, first Dr C.B.Koester and then Mr Robert Marleau, Clerks of the House of Commons, provided wonderful material and service. Miss Audrey O'Brien and the Table Research Branch were also part of this excellent interaction. At Westminster, first Sir Kenneth Bradshaw and then Sir Clifford Boulton, Clerks of the House of Commons, were also most kind in the provision of material and insights from their own wide experience. Messrs Michael Ryle, Roger Sands and Robert Rogers were also great providers, and writers, of direct insight into Westminster practice. Mr J.R. Mitchell, Assistant Secretary to the Cabinet, Machinery of Government, Ottawa, provided extremely valuable constitutional research material. Dr Ann Robinson, late of University College, Cardiff, is thanked for the opportunity to discuss research into parliamentary control systems. The Office of the Ombudsman, Stockholm, provided valuable source literature on the historical origins of that Office. Miss Linda Jones-Kemp, Executive Assistant to the Comptroller General of the United States of America, is also thanked for material sent. A special thanks is due to Sir Thaddeus McCarthy and Sir Guy Powles for their permission to use certain past, personal correspondence which was very useful for including in the thesis. Mrs Alison Quentin-Baxter is also thanked for valuable research material. I cannot speak highly enough of these representatives of the New Zealand legal profession and here link their names with others whose work I drew from, namely Sir Owen Woodhouse and Professor Colin Aikman. Mr Phillip P.O'Shea, New Zealand Herald of Arms Extraordinary to Her Majesty the Queen, freely gave much input as to the details of the Honours bestowed on past and present Members of the House. One worries, that after his efforts, there may still be mistakes! vi


Preface

Mention must be made of the valuable input derived through the contributions provided from various departmental officials. Foremost are those from the New Zealand Audit Office and one must gratefully record here the names of Mr B.H.C.(Brian) Tyler, Controller and Auditor-General, 1983-92, Mr Denis Ormsby, Assistant Controller and Auditor-General, Mr Allan Spencer and Mrs Pat Goldsmith. It was a privilege to be allowed access to their superior, unique knowledge of comparative national auditing and financial control systems of legislatures. Mrs Kathryn Patterson, Director and Chief Archivist at the National Archives, is thanked for permission to use references to archived submissions to the 1962 reforms, as well as the 1973 Archives Report on the deposited Legislative Department documents. Contributions were also received from certain major government departments as to their views on their interaction with the House of Representatives and its select committee process. For this input, thanks are due to the Ministry of Education, the Ministry for the Environment, the Ministry of Foreign Affairs and Trade, the Reserve Bank, the State Services Commission and the Treasury. Particular mention must be made of Dr Graham Scott, Secretary of the Treasury 1986-93 and Mr Donald Hunn, Chairman of the State Services Commission. Their gracious submission to in-depth taped interviews were significant milestones. Thanks to Mr Neville Gibson, Editor of the National Business Review, for the use made of his columns while I was doing this research. With him as one's editor, access for interviews was made easy. Also, Mr Peter Scherer, Editor of the New Zealand Herald is thanked for his interest, as is Mr Derek Lowe of Radio Pacific. A special note is needed over the use made of the work of many journalists who commented on the parliamentary process. With the recording and subsequent reporting process of the House of Representatives being so sterile, and at times non-existent, such valuable work has helped to better gauge the human content and dynamic of New Zealand parliamentary life. It is hoped that these references give this work the desired level of recognition it deserves. Support has also come from many past and present Members of the House of Representatives, too many to mention here. But special thanks are due to Mick Connelly, Jeff Grant, Rob Munro, Gerald O'Brien, Katherine O'Regan and EsmĂŠ Tombleson. Provision of material is sincerely appreciated and has helped greatly this work. I should also like to say how one can feel the help from one's family, even those overseas. A special thanks for Sarah. Finally, I would like to express my thanks and sincere appreciation of all those out there who have responded to my many calls for help-especially those from other jurisdictions. Because your names are not above, doesn't mean you are forgotten. This is not an exercise where one is trying to spread the culpability to others for the errors, omissions and possible expressions of outrageous opinion that, I am sure, have crept in; these are the responsibility of the person named on the title page. But thanks again. sidebar .....for it was a known apothegm [pithy maxim] of the great lord treasurer Burleigh "that England could never be ruined but by a parliament"; and as Sir Matthew Hale observes, this being the highest and greatest court, over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy. .... To the same purpose the president Montesquieu, though I trust too hastily, presages; that as Rome, Sparta and Carthage have lost their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it will perish, whenever the legislative power shall become more corrupt than the executive. Commentaries on the Laws of England Sir William Blackstone. 1723-1780.

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Chapter 1. Constitutional Reform And Parliamentary Control 1.1. Introduction THE PURPOSE of my thesis was to examine aspects of parliamentary Community unease following broken promises. reform during the period 1951-90. This line of inquiry was prompted following the observation of strong unease in the New Zealand community over the present constitutional arrangements. The New Zealand Parliament was supposedly improved by being moved to unicameral status in 1951. Since then the procedures of the House of Representatives have been changed on several occasions. In 1984 the Labour Government came to power saying it would implement procedural changes enabling a more democratic functioning of Parliament. These changes were to mirror what had been installed in Westminster, but, in fact, missed out on certain essentials. The new 1990 National government also promised democratic reform of the House procedures. However, once in office, no such reform was initiated. The public discontent with New Zealand's constitutional arrangements Royal Commissions spring into action. also saw public pressure producing a Royal Commission on the Electoral System, set up on 18 February 1985. It reported on December 1986 and in its Preface said, "The establishment of this Royal Commission reflected concern that it was time a far-reaching and searching examination of our electoral system was undertaken."1Widespread social concerns also saw the convening of a Royal Commission on Social Policy in order "to set social policy goals and to recommend what needs to be done to make New Zealand a more fair and just society". It attracted approximately 6,000 submissions.2 As a result of the Royal Commission on Electoral Reform there was a referendum held on 19 September 1992 asking the public for their choices on two voting proposals. 3 The first proposal asked electors if they wanted to retain the present first-past-the-post system of voting or desired a change. 84.7% voted for a change. The second proposal polled voters on various reform options. These options were between a supplementary member system (SM), a single transferable vote system (STV), a mixed member proportional system (MMP) and plurality voting (PV); 70.5% of those voting opted for MMP.4 However, despite the concerns focused around these two Commissions, and the many submissions they attracted, there was no complementary interest in the process whereby the New Zealand House of Representatives reviewed its own internal procedures and conducted itself. During the period under study both National and Labour had trumpeted the cause of 1

Report of the Royal Commission on the Electoral System, Towards a Better Democracy, Chairman, Hon. Justice J.H. Wallace, V.R. Ward, Government Printer, Wellington, December 1986. AJHR, H-9, p 1. Tabled 16 December 1986 but not debated. See Journals, p. 562. 2 Royal Commission on Social Policy, The April Report, Chairman Sir Ivor Richardson, Government Printer, Wellington, 1988. AJHR, H-2, p. xvii. Tabled 7 June 1988 but not debated. See Journals, 1987-90, vol 3. 3 This referendum was conducted from guidelines as per the Electoral Referendum Act 1991 and the Electoral Act 1956. 4 Chief Electoral Officer, 1992 Referendum Final Report,Electoral Office, Department of Justice, Wellington. 20 October 1992. pp. 2. Votes cast to Electors on Master Roll were 55.2%.

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parliamentary reform. But these initiatives were almost entirely party-based. There was not the same interest coming from community based organisations and persons, as happens overseas. It was thus felt that an important part of our constitutional process needed this extra analysis. This thesis will therefore concentrate upon internal parliamentary reform. The internal law and process.

Special attention will be placed upon the methods by which the House reforms its procedures and changes its Standing Orders, or rules. Reference will be made to procedure at the Canberra upper and lower houses, and the Ottawa and Westminster lower houses. The degree to which the Executive is, or is not, able to dominate the processes used to reform the New Zealand Parliament will be examined. Comparisons will be made with practices current at Houses at Canberra, Ottawa and Westminster. Reference will also be made to some Washington and Danish processes. Mention will also be made to certain parliamentary procedures in New Zealand put in place last century, which were used temporarily, but subsequently allowed to lapse. While many Members of Parliament elected to the New Zealand House of Representatives, or Lower House, may see themselves as merely en route to a Cabinet post, this thesis will concentrate on the way in which such Members, and their parliamentary institution, discharge the representative roles and functions.

1.2. New Zealand's Westminster Model NEW ZEALAND is described by Arend Lijphart as "a virtually perfect Dominant power in the Antipodes. example of the Westminster model of democracy". Under the heading, Fusion of power and cabinet dominance, he lists its main qualities as having a concentration of executive power: one-party and bare majority cabinets, the fusion of powers as opposed to the separation of powers linked with a dominance by Cabinet, unicameralism, a virtual two-party system having in themselves a one-dimensional quality. He quotes Levine who says the "rigidly disciplined two-party system has contributed to the concentration of power within the Cabinet, formed from amongst Members of Parliament.....belonging to the majority party".5He also notes that New Zealand has a straight plurality system of elections not checked in any way by a written Constitution. But there have been instances, as in 1978, when "the National Party won a clear majority of 51 out of 92 seats" with a support of only 39.8 percent of the popular vote. Such results have "increased public interest in proportional representation". 6 Lijphart also says that the New Zealand system is "mainly" representative in that it "has also made rather frequent use of the direct democracy device of referendums". Finally, he says that New Zealand has "unitary and centralised government". An Act of the United Kingdom Parliament granted a representative constitution to the then colony of New Zealand in 1852. This created "six provinces with considerable autonomous powers and functions vis-a-vis the central government, but these provinces were abolished in 1875. Today's governmental system is unitary and centralised".7He says that New Zealand is a representative democracy and "In nearly all respects, democracy in New Zealand is more clearly majoritarian, and hence a better example of the Westminster model, than British democracy".8

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Arend Lijphart, Democracies, Patterns of Majoritarian and Consensus Government in Twenty-One Countries, Yale University Press, New Haven and London, 1984, pp. 16-17. See also Stephen Levine, The New Zealand Political System:Politics in a Small Society, George Allen and Unwin, Sydney, 1979. pp. 25-26. 6 Ibid., pp. 18-20. 7 Ibid. 8 Ibid.

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1.3. Evolution Of The Westminster System IT IS necessary to discuss aspects of the evolution of the Westminster From 1215 onwards, with the help of A.L. Goodhart's view of the State. system New Zealand has inherited. Such a discussion can help explain much of the constitutional background to the problems of parliamentary accountability, involving as this does interaction between an executive government needing a "supply" of money to govern and a parliament having as one of its roles that of calling that government to account inter alia for its use of that money. The state is first and foremost composed of "various persons and bodies" who must be accountable. 9 p. 8-9. After all, what is being discussed is the behaviour of those entrusted with the operation of public power, i.e. 'the constitution in action'. 10 But Woodhouse goes further and deals with those situations when power can at times be misused or abused describing the possible reaction. "The ultimate sanctions of 'constitutional law' as against the ruling body are extra-legal -- 'revolution, active, and passive resistance and the pressure of public opinion' ". 11 Others have also called attention to the need for a more varied, social approach to the problems of those entrusted with public power. According to Sheldon Wolin, Karl Popper argues that political theory should discard the inquiry into "Who should rule?" in favour of "How can we organise political institutions so that bad or incompetent rulers can be prevented from doing too much damage?". 12 This approach relates to the main thrust of this thesis in examining the structure of the New Zealand House of Representatives As Woodhouse shows, in order to understand how this Westminster system evolved, particularly over the arguments over money between Monarch and Parliament, one needs to understand at least parts of English history from the thirteenth century forward. At the time of the 1215 Magna Carta the main dispute between the Monarch and the Barons was whether the former had the right to levy taxation on them and their communities without their consent. Magna Carta clearly spelled out that the Monarch needed to call together the Common Council, with forty days notice, if he wished to levy taxes on the realm. Moreover, if this procedure was to be initiated, this social contract also said that "in all letters of summons the cause of the summons shall be specified". 13 This contract led to the demand for a permanently constituted representative body. Today, these historical precedents can be used when discussion arises over the problems involved with representation through a national legislature and the accountability of the ruling executive. A Canadian view. A recent Canadian document recognised this when it said:"The development of an assembly of commoners for this purpose completed the essential structure of Parliament as we know it: the Crown, the Upper House and the Commons".14 These constitutional developments proceeded apace around the time of the 1689 Bill of Rights and the 1701 Act of Settlement. Again "The struggle between the commoners and the Crown in the 17th Century was qualitatively no 9

A.L. Goodhart, English Law and Moral Law, Hamlyn Lectures, Fourth Series, Stevens and Sons, London, 1953. p. 50. in Rt Hon. Owen Woodhouse, The Sixth Beaglehole Memorial Lecture, Government under the Law, Victoria University, 4 October 1979. Price Milburn, Wellington, 1979. 10 Woodhouse, p.9. 11 Woodhouse, p. 11. Woodhouse is quoting G.W. Paton and P. Durham, Jurisprudence, 4th ed., Clarendon Press, Oxford. 1972. p. 345. 12 Sheldon S. Wolin, The Politics of Vision, Continuity and Innovation in Western Political Thought, George Allen and Unwin, London, 1961. p. 501. Quoting from K. Popper, The Open Society and its Enemies, Vol I, Routledge and Kegan Paul Ltd., London, 1952. pp. 106-7. 13 See Clauses 12 and 14 of the 1215 Magna Carta in Thomas Pitt Tasswell-Langmead, English Constitutional History:From the Teutonic Conquest To The Present Time, Seventh Edition, Stevens and Haynes, Temple Bar, London. 1911. p. 101. 14 Canadian Privy Council Submission to the Royal Commission on Financial Management and Accountability, The Lambert Report, Canadian Government Publishing Centre, Hull, Quebec, March 1979. Privy Council Office, Ottawa, p. I-6.

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different from that between the Crown and the baronage in the 13th century: each was pursued to force the Crown to act responsibly".15 Bill of Rights, 1689As the Privy Council of Canada document shows, certain measures were enacted which created "constitutional monarchy". It says, The Bill of Rights(1689) established that the law making authority is the Crown in Parliament, the Mutiny Act(1689) made the existence of the Army dependent on the annual approval of Parliament, and the Act of Settlement(1701) inter alia removed the control of justice from the hands of the king.16

1.4. The Legislature Versus The Executive And The Role Of The Speaker IN ANOTHER context, Selwyn Lloyd, a former Westminster Speaker, has Speakers, of various models. detailed the centuries-old struggle between the Commons and the Monarch, which led to the current independence of Westminster Speakers, together with the right to consent to set levels of public expenditure.17He cites one classic instance during the reign of James I.18This involved Speaker Phelips who had sought energetically to defend the privileges of the House of Commons.19Phelips reprimanded a Yeoman of the Guard for obstructing a Member.20They won the right to be the lawful judges of their own returns and established members' immunity from arrest over incidents surrounding the election of a member for Buckingham.21Another important, precedent-making incident occurred during the struggles between the Commons and King Charles I, 1625-49, which led to the Civil War and his beheading.22King Charles I has the distinction of being the only Sovereign ever to cross the Bar of the House. Worse, Charles ordered the Speaker from his Chair and then occupied it himself before demanding that the Commons deliver five members Charles wished to try for treason. Fortunately, the five members had made good their escape through Speaker Lenthall's garden to a boat on the River Thames, which took them down river to sanctuary in the City of London. The City has had a degree of independence from the Monarch to this day. Speaker Lenthall's action in helping the five members to sanctuary earned him lasting fame and the independence of Commons' Speakers ever since. Speakers were no longer regarded as servants of the Crown; their first loyalty being to the Commons.23

15 Ibid., 16 Ibid. 17

p. I-7.

Lloyd, Selwyn, Mr Speaker, Sir, Reader's Union, Newton Abbot, 1977. p. 39-40. John Selwyn Brooke, Baron Selwyn-Lloyd(1904-78), Conservative, Wirral 1945-78, Speaker 1971-76. 18 James I, 1603-25, (James IV of Scotland from 1567). Son of Mary Queen of Scots he succeeded Elizabeth I of England. He was an unpopular monarch, alienating the Puritans with his High Church views and parliament with his insistence of the divine right of kings. 19 The Hon Sir Edward Phelips, 1560-1614, Somerset, Speaker 1603-04, Master of the Rolls, 1611. 20 Yeoman of the Guard, nicknamed the Beefeaters, is the English military corps founded by Henry VII in 1485 and bodyguard to the sovereign. Its duties are now ceremonial only. 21 Lloyd,. p. 39. 22 Charles I, 1600-49, born at Dunfermline, son of James I of England (James VI of Scotland) m. Catholic Henrietta Maria, d. Henry IV of France. He was forced by Parliament to accept the Petition of Right in 1628, which made taxation without parliamentary consent, imprisonment without trial, billeting of soldiers on private persons and the use of martial law illegal. In 1629, he dissolved Parliament and imprisoned its leaders, ruling without a Parliament for 11 years. His despotic rule enraged the Scots and English. Parliament presented him with the Grand Remonstrance in 1641 and ousted him from Parliament in 1642. He declared war upon Parliament, was defeated by Cromwell at Naseby in 1645, surrendered to the Scots in 1646, was imprisoned in 1647, beheaded before the Banqueting Hall in Whitehall on 30 January 1649 and buried in St George's Chapel. 23 Lloyd, p. 43. The Hon William Lenthall, 1591-62, Woodstock, Speaker 1640-59, Master of the Rolls and Commissioner of the Great Seal.

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Tasswell-Langmead documents another precedent established during the reign of King Charles I with the absolute right of the Commons to initiate money bills. For several years, the issue of Ship Money had vexed the citizenry, when Charles succeeded in levying the cities and ports of England without recourse to the House of Commons. Charles had been raising money, unconstitutionally, to construct a navy. 24 He had been aided and abetted in his covert and unconstitutional actions by wily rulings from Attorney-General, Sir William Noy, a man recorded by Tasswell-Langmead as having "venal diligence and prostituted learning". 25 Following several years of disastrous rule, the cost of the war against the Scots high-lighted the real impotence of Charles emergency system of government. Long-standing illegal methods of supply proved utterly inadequate for the support of an army. Finally, after eleven years of despotic rule, Charles yielded, reluctantly, to the advice of his Council, and issued writs for a Parliament, which met first on April 13, 1640. Tasswell-Langmead chronicles the importance of giving redress of grievances cases higher priority than the immediate granting of supply to their Sovereign and the manner in which the Commons insisted on this, for them, perilous occasion. But they thus established their exclusive right to initiate money bills. These precedents saw the first loosening of the Monarch's hold over the Speaker, although the Commons remained "exceedingly disposed to please the king and do him service".26 But the Commons was led by men like Pym and Hampden and had not forgotten how Charles had acted in prosecuting and imprisoning certain Members for their utterances in the House. 27 This fact, coupled with royal pressure on the Speaker to prevent his "putting the question" on the final day of their last Parliament, were severe breaches of Commons Privilege, which needed discussion and resolution. In retaliation, Charles applied pressure through the House of Lords, which decided that the supply he requested should have precedence. However, the Commons reacted sharply with a vote that the Upper House was breaching their privileges. The Lords reacted by disclaiming any intention to interfere with the undoubted right of the Commons, admitting that the money bill ought to originate in the Lower House. When the bill reached the Lords, it would be agreed to and returned to the Speaker of the Commons for presentation to the House. This incident established the Commons' exclusive right to initiate money bills. Customarily, Speakers had been employed by the Monarch and often held outside Parliament, together with sharing in Commons committee work. This precedent also marked the beginning of Commons Speakers' accountability solely to the House. Members wanted no more interference from the King.28 Two important changes to Commons procedures also occurred in the eighteenth century. First, was the emergence of the principle of ministerial responsibility. This occurred when Sir Robert Walpole became the first senior minister to sit in the Commons becoming also, first Lord of the Treasury and Chancellor of the Exchequer, a royal appointment. But by sitting in the Commons he could not be raised to the peerage, as had been customary. 29 Walpole refused elevation to the peerage in order to remain in the Commons to manage members in the royal interest.30 Mackenzie catalogues a history of constant friction at this time between the House and the executive. Walpole's departure from custom was a stratagem which facilitated George I's ability directly to influence and manipulate management of the Commons. George I used his power to act through Walpole, his principal minister and first Lord of the Treasury, who was also backed by loyal co-operation from royalist supporters in the Commons. Walpole's stratagem marked also, the beginning of Commons power to 24

Ottawa Privy Council Document., "The means of enforcement was the Star Chamber, which dispensed with the procedures of the courts in order to place criminal justice in the hands of the king". p. I-7. 25 Tasswell-Langmead, T. P, EnglishConstitutional History, 7th edition, Stevens and Haynes, London, 1911. p. 459. Sir William Noy, 1577-1634, Member for Grampound in Cornwall, 1604-34. 26 Tasswell-Langmead, p. 460-61. 27 John Pym, 1584-1683. He was leader of the five members of parliament whom Charles I tried to arrest for treason in 1642. He was instrumental in obtaining the Petition of Right; moving the impeachment of Charles' advisors, Strafford and Lord; drafting the Grand Remonstrance and negotiating the alliance between parliament and the Scots. John Hampden, 1594-1643. He was imprisoned in 1627 for refusing to pay a forced loan, became a national figure, when he refused to pay Ship Money in 1636, and was one of the five Members of Parliament whom Charles I tried to arrest for treason. 28 Taswell-Langmead, p. 460. 29 Robert Walpole, 1st Earl of Orford, 1676-1745, Whig politician. He received an earldom when he retired in 1742. 30 Mackenzie, K.R., The English Parliament, Pelican Books, Harmondsworth, 1930. p. 83.

5


Constitutional Reform And Parliamentary Control deal more directly and possibly more strongly with the executive, if so minded. Mackenzie analysed the emergence of the fundamental principle of ministerial responsibility inherent in Commons power, which forced Walpole's eventual resignation following his loss of a crucial vote in the Commons.31 The second change was the emergence of successive Speakers' sole loyalty to Parliament. This occurred when Speaker Onslow resigned as Treasurer of the Navy following his appointment as Speaker, in 1727.32 Before that date, it had not been unusual for Speakers to hold Crown office, i.e. ministerial warrants. Lloyd shows that subsequent Speakers did not necessarily emulate the standards set by Onslow during his thirty-three year tenure. But Speaker Shaw-Lefevre's period of office saw further development of Speakers' rights, responsibilities, powers and discretions. 33 These included: recognition of independent status with payment of salary becoming a permanent charge on the Consolidated Fund rather than an annual discussion over a vote appropriation; partisan disaffiliation on election to the office of Speaker; status of "The Speaker" being something apart from party candidature, when seeking re-election; voting only in the event of a tie. Speakers now vote according to established principles, usually in favour of the status quo.34 As will be shown, there are major variations between the roles of Westminster and New Zealand Speakers. Unlike their Westminster and Ottawa counterparts, New Zealand Speakers do not disaffiliate from partisan membership. They remain members of their political parties and contest elections directly affiliated to parties. Furthermore, New Zealand Speakers chair and contribute to those committees that "make the rules". In other Parliaments, Speakers are kept apart and only "adjudicate on the rules". Also the New Zealand Speakers remain on the lists of those eligible to vote in their party caucuses in Parliament. Moreover, they can even return to fully active politics and become a Minister. So, in the New Zealand context, the Speakers are always linked to party political activity rather than remaining to a degree remote from the process and acting in a capacity of judicial guardian, as do Westminster Speakers. 35 The other major lesson to be drawn from English parliamentary history Precedents concerning taxation. concerns the taxation process, related to later discussion of the principles of Ways and Means. The 1215 Magna Carta and the 1689 Bill of Rights were deeply concerned about taxation. Article 12 of Magna Carta said that if the Monarch wished to tax the Realm he had to call the Common Council of the Nation. Article 14 said there must be forty days notice, and said, "in all letters of summons the cause of the summons shall be specified".36 A case is thus strongly made for the reasons for any taxation measure to be clearly stated, its purpose and implications explained. As Woodhouse says of Magna Carta "that virile concept, alive in the sturdy imagery of Elizabethan England, is still entirely valid in New Zealand".37Likewise, the Bill of Rights had its Article 4 saying, That levying money for or to the use of the Crowne by pretence of prerogative, without grant of Parlyament, for longer time or in other manner than the same is or shall be granted, is illegall.38 It is often forgotten that the great guarantees of these two famous instruments include those concerning taxation and the proper use the Executive, using the Crown's name, makes of it. Mention of the word "Crown" makes it worth highlighting certain select committee discussion around this. In 1992, the Select Committee for Finance and Expenditure conducted an examination of the 31 Mackenzie, p. 85. 32 The Hon Arthur Onslow, 1691-1768, Whig, Surrey, 1728-61, Speaker, 1728-61. 33 The Hon Sir Charles Shaw-Lefevre, GCB, 1794-1888, Liberal, Northhampshire, Speaker 1839-57. 34 Lloyd, p. 60. 35 Lloyd, p. 54. He shows that after 1872 no Commons Speaker even voted in Committee. 36 "these two clauses (12, 14) surrender the royal claim to arbitrary taxation". Tasswell-Langmead, pp. 37 Woodhouse, p. 10. 38

Tasswell-Langmead, p. 524. Original text.

6

100-101.


Constitutional Reform And Parliamentary Control

format and layout of the Financial Statements of the Government of New Zealand, as submitted to the House. In discussing the "Use of the expression 'Government' and 'Crown' they reported: 39

At the time of final writing this matter had not been resolved between the Select Committee and the representatives of the Government. Neither could there be found any comment from any New Zealand constitutional authority.

1.5. The Conduct Of The Processes Of Parliamentary Reform IN THE lower houses of Westminster and Ottawa, the committees which study Rules of conduct. reform of procedure or review the Standing Orders comprise members whose only role is that of "Member of the House"; there are no ministers or party whips sitting as members of these select committees. The reason is simple. Ministers are members of the executive. At Westminster, all ministers are members of the Executive and as such are servants of the Crown. Party whips owe their allegiance to their respective parties. But such select committees are creatures of the House, entrusted with reviewing and laying down its procedures. Government, through its ministers, must account to the House and, therefore, ministers are not given such committee membership for elementary, conflict-of-interest reasons. Anthony Barker examines the difficulties with ministerial involvement in public policy decisions when he discusses Parliament's relationship in the context of public planning inquiries. 40 He says there is a need to protect against parliamentary conflict of interest, and to apply administrative justice known as natural justice. One natural law provides that no person should be a judge in his or her own cause, i.e. nemo iudex in re sua. 41The other main rule of natural justice provides that, where proceedings are even within the control of the executive, opposing views should always be heard and recorded: let the other person be heard i.e. audi alteram partem.42So the rules of evidence should apply, to this degree at least, in the House and its committees as well as in the Courts. And the two rules of natural justice are strictly adhered to when Westminster and Ottawa inquire into the status of their procedures. No person of executive taint may sit on such committees and all proceedings are recorded and published in order to air viewpoints which may be at variance with the majority or executive authority. Thus, history may make its judgement on dissenting voices from the past when published records are researched at some later date. But the New Zealand House has certain crucial gaps in its recording of the words spoken, particularly at the select committee level. This denies natural justice to those who appear before such committees, as no transcript is later published as overseas. In New Zealand there is also a lack of political independence of Speakers, with an apparent lack of awareness of the past history of Westminster. At Westminster, the government normally nominates a Speaker from within its ranks. Wide, cross-party consultation is customary in order to avoid back bench insurrections over lack of consultation, which have punctuated the past. Griffith and Ryle illustrate how,

39

Report of the Select Committee for Finance and Expenditure, Peter Gresham, Chairman, On the Inquiry into the Format and Layout of the Financial Statements of the Government of New Zealand, AJHR, I.4B, Published on the Order of the New Zealand House of Representatives. 1992. pp. 5-6. 40 Barker A, "The Legislature's Role in Official 'Decision Advice Procedures", in Parliamentary Select Committees in Action, Strathclyde Papers on Government and Politics, No 24, 1984, ed Dilys M Hill, University of Strathclyde, Glasgow. p. 230. 41 nemo iudex in re sua; one should not judge one's own cause. 42 audi alteram partem; let the other side be heard.

7


Constitutional Reform And Parliamentary Control at Westminster, wide ranging consultations such as with back-benchers and the Opposition, will identify a broadly acceptable person. Consequently, most recent Westminster Speakers, for example Speaker Weatherill, have been Members chosen on a bi-partisan basis. But there have even been occasions when the nominee has not necessarily been the first choice of the Prime Minister.43

1.6. The Constitution, Members Of Parliament And The Executive THERE ARE differences between the common public perceptions of The myths and realities of the Constitution.

parliamentary mechanisms and the constitutional and political realities which lie behind what is, arguably, the facade presented to the populace. Anthony H Birch posits that there are two languages of the constitution: liberal and Whitehall languages. These labels can be applied to the New Zealand scene. Birch coined the term, liberal language, because it embodied a number of ideals associated with the liberal reform movement of the nineteenth century. These ideals encompassed concepts such as the sovereignty of Parliament and of the People. The liberal view of the British system holds that supreme power lies with Parliament, which has direct and exclusive control over legislation and indirect control over the actions of the executive and the central administration. Ultimate control is assumed to be that of Parliament by virtue of the convention that Ministers are responsible to Parliament for their own decisions and for all the actions of their departments.44 Anthony Birch claims the liberal view of the constitution "is a crude and over-simplified view of the constitution that appears to command most general acceptance and to underlie most of the comments on political affairs that are to be found in the popular press".45 Birch posits further that the liberal view is seen to be democratic because it appears to provide the basis for the source of government policies, which reflect the will of the people, although the view is by no means universally accepted.46In terms of Whitehall language, Birch does not see the role of departments The realities of accountability.

as being "confined to the implementation of policies made by politicians when they bend to the will of the electorate". In Whitehall circles, it is axiomatic that policy and administration are intimately related with many, perhaps, most changes of policy. These are "initiated in departments as a result of memoranda written by civil servants, not by politicians".47 Furthermore, 48

43

J.A.G. Griffith, Michael Ryle and M.A.J. Wheeler-booth, Parliament, Functions, Practice and Procedures, Sweet and Maxwell, London, 1989. p. 143. Note that Speaker Lloyd's "election was vigorously opposed by some fifty MPs who held the view that a Speaker who had served so long as a Cabinet minister might not be sufficiently zealous in protecting the rights of backbenchers. Once installed, Selwyn Lloyd soon calmed those fears". Dictionary of National Biography, 1971-80, Ed. Lord Blake and C.S. Mitchell, Oxford University Press, Oxford. 1986. p. 515. 44 Anthony H Birch, "The Nature of the Constitution", The British System of Government, 6 ed., George Allen and Unwin, London. 1983. pp. 21-29. 45 Birch, p. 22. 46 Ibid. 47 Ibid.

8


Constitutional Reform And Parliamentary Control

The liberal language also fails to depict the role of the Crown in the British system of government. For Ministers are appointed by the Monarch, on the advice of the Prime Minister. Ministers and civil servants are servants of the Crown, not of Parliament. Nor is there any indication that the House of Commons can only meet when it is convened by the Crown again, acting on the advice of the Prime Minister. Equally, Birch shows that the liberal view of the constitution fails to take account of the independence, enjoyed by the executive, in the conduct of foreign policy, negotiations with foreign countries and making treaties with them as well as declarations of war.49 Figure 1.1 shows how New Zealand Members of Parliament, and Ministers, all have to also take an Oath of Allegiance to the Monarch. Birch also shows that the liberal and Whitehall views of the constitution can co-exist and are used at different times for different purposes by politicians. He sees no necessary contradiction between the views but notes that they emphasise different aspects of the political process. Ministers may also be former back benchers and future Opposition members. In these dual roles, Members are conscious of the importance of Parliament and of the need to maintain its influence over the Government of the day. The dual role enables back benchers to speak with two voices about the role of parliament in the constitution, each voice reflecting legitimate views about what the role should be.50 Birch says that each view reflects features of the constitution, which have remained fairly constant from the eighteenth to the twentieth century. The liberal view reflects the ambitions and achievements of nineteenth century reformers, who transformed the political system from oligarchy to democracy.51Birch's dual theory shows that there is a balance of forces with a continuing dynamic as they each strive for dominance. But subsequent chapters of this work will show that, in the New Zealand House of Representatives, the reality of parliamentary procedural reform gives undue power to the executive. This is further buttressed by Cabinet being allowed to examine directly and to comment on the processes of the House of Representatives. And as part of this executive dominance, it will be shown that state(civil) servants also play a very influential role in the workings of select committees.

1.7. The Main Functions Of Parliament FINALLY, it is necessary to examine briefly the processes and roles of Parliament as a formal process.

what is loosely called Parliament. Figure 1.1 is presented as an aid to better understand this process. The procedure for the passage of a bill is in the footnote below.52 Firstly, following an election, successful candidates take their Oath of Allegiance to the Monarch and all then become Members of Parliament. 53Their Oath is similar to that taken by Members of Parliament at Canberra, Ottawa and Westminster.

Figure 1.1. The Main Functions of Parliament

49 Birch, 50 Birch, 51 Ibid. 52

p. 24. p. 28-29.

Normally, bills are introduced, read a first time and then considered by a select committee, except Appropriation and Imprest Supply bills or bills accorded urgency. The House then considers the select committee report, there is a second reading and the Committee of the Whole House stage(the committee stage). The third reading ends the bill's consideration, it then going for the Royal Assent. 53 See Oaths and Declarations Act 1957, Section 17.

9


Constitutional Reform And Parliamentary Control

Certain of the Members are then appointed by the leader of the ruling party to be Ministers. Some are 10


Constitutional Reform And Parliamentary Control

members of the Cabinet and some outside Cabinet. However, all these new Ministers are sworn in as members of the Executive Council, taking another form of Oath of Allegiance to the Monarch.54Executive Councillors and Ministers are also each given separate Warrants of Office from the Governor-General.55Thus Parliament, is composed of the Members of the House of Representatives, as well as the Ministers, who by reason of their Ministerial Warrants, represent and embody the "Monarch in Parliament". From this brief analysis one can see that arising from the original election of a range of Members of Parliament there is room for conflict between Members who have been elevated to "governing" roles and those who have been left in, or prefer to be in, "representative" roles. Naturally, party discipline and how it is applied, can alter the stance of those Members who are not in Cabinet. Individual Members will not necessarily have the constraints of the need to maintain the "collective" viewpoints essential for Cabinet Government. But this will still depend very much on how party discipline can possibly outweigh the powers of customary practice in the legislature. But this could possibly see a "public interest" assuming a greater strength that any "party interest". Arising from this, it will be seen that there are two types of tasks in a Parliament, one built around "governing" and the other around "representation". The first includes forming a Cabinet from selected Members, and thus the Government. This naturally leads to asking Parliament for taxation to be approved as well as the expenditures for the functioning of the government machine. As long as the Government can hold a majority in the House it can, between elections, maintain this position. The "representation" role also puts special obligations upon those who are Members of a House of Representatives. It is the main function of such a House to have the government-of-the-day account to it for how it both intends to carry out the business of government as well as recount, if so asked, how in the past it carried out some task or range of tasks. It is up to those Members of that House to put in place such structures and related procedures to carry out this important role. One of the most important tasks of any House of Representatives is the "Ways and Means" and "Supply".

laying down of procedures to deal with requests from any Government for changes or continuation of taxation. Now taxation can be an expression of several motives on the part of that Government. It can be a simple question of the need for revenue to continue the functioning of the machinery of government as in previous years. But new taxes can also be an expression of some completely new change in policies on the part of that Government. This change could signal a complete change in economic management as well as possibly vital alterations to social and industrial policy directions. If this is so, Members of the House need to have explained to them in reasonable detail the ramifications of such policy changes. Apart from speeches in the House, Ministers and their policy advisers could be asked to appear before select committees and be questioned about the import of their new policies by Members. Overseas, there are formal procedures for such presentations before the House, select committees and committees handling any related bills. The term Ways and Means is used in relationship to these taxation and revenue procedures. (As will be later discussed, this term has been dropped in New Zealand.) The second main task of any House and its Members is to approve the spending of those monies needed for the functioning of government. Called The Estimates of Expenditure, this document is tabled in the House annually and it details the estimated cost of running government for the next financial year at least. Once again, this can involve the questioning of Ministers and their official advisors before select committees. This opens up the process of inquiry more into the detail of the workings of government as opposed to the general question of economic policy direction as in the Ways and Means procedures. And as any Government is asking for a supply of money these procedures are normally called Supply 54 See 55

Oaths and Declarations Act 1957, Section 19. See "Letters Patent Constituting the Office of the Governor-

General of New Zealand", 1983/225 plus Amendments of 1987/8 and the Constitution Act, 1986/114 and Amending Act, 1987/134.

11


Constitutional Reform And Parliamentary Control

procedures. (Use of this term has also been dropped from New Zealand practice.) But the "estimates" process could highlight the need for more detailed inquiry into some more specific aspect of government; this could be taken up later when time and committee resources allow. But as part of the representation role committees could also take up inquiries covering questions that have assumed an important place on the public agenda. A legislature's ability to have its select committees do this is one measure of how the House has gained, or not gained, some degree of independence from cabinet and party pressures. These will naturally wish for the course of government to proceed undisturbed by inquiries based upon some unacceptably wide interpretation of the "public interest". But in the general public perception, the ability of any legislature to carry out inquiries into a wide range of matters of national and local interest is very often seen as acting out well the "representation" role. Finally, within the "representation" role of a House there are also those Redress of Grievance, and Petitions.

important elements whereby that House purposely lays itself open to more random approaches and considerations from outside its directly controlled environment. Of course, there is the "redress of grievance" role whereby citizens can inter alia make direct approaches by way of petitions. There are usually well laid down "petition" procedures for citizens, singly or in numbers, to come forward and appear before some select committee. And there can also be a meticulous verbatim recording and early A verbatim public record?

publishing of all the words spoken by Members of any House of Representatives. This can provide citizens with an "accounting" of how their representatives do perform and actually react to the various issues and government policies under consideration. But as discussion later in this thesis will show, in New Zealand such social and political accounting is not necessarily at such an ideal level.

1.8. The Subsequent Analysis THIS STUDY is built upon the analysis of those occasions between An outline map of the proposed journey.

1951 and 1990 when the New Zealand House of Representatives reviewed its Standing Orders. Three main reform exercises are discussed, that of 1951 (Chapter II), 1962 (Chapter III) and 1985 (Chapter VI). Each period of reform demonstrated new approaches to parliamentary administration and executive accountability. The 1951 exercise was necessary because the New Zealand Parliament was reduced to only one Chamber. The upper house, the Legislative Council, had been abolished. The 1962 exercise brought in the new Select Committee on Public Expenditure. which raised the opportunities for Members to examine the performance of the Executive. It ensured, for the first time, that a Government must submit its Estimates of Expenditure to the House, not as before, only directly to the Public Accounts Committee, and back again. Also for the first time, British House of Commons procedure was supposedly researched and used. The 1985 exercise was also, in intention anyway, based upon changes earlier made at the British Commons. The legislature was also then given its own management system, free from the previous Minister of the Legislative Department. There was also a complete reform of the select committee system. It 12


Constitutional Reform And Parliamentary Control

was given wider powers. This system was influenced by changes earlier made at the British House of Commons and elsewhere. Chapter V deals with the period between 1962 and 1985. While there were no major changes during these years, no discussion of this sort and total time frame could ignore what then occurred. Procedures were reviewed on several occasions and minor changes made. But researching what transpired then provides a good opportunity to observe the behaviour of Members and relate this to the major theme of reform of the procedures of the House. This behavioural aspect has been extended into several other sections of this thesis. Some attempt has been made to measure the performance of the various governments, following the promises made about reform of House procedures, usually while pleading to gain office. The latter end of Chapter II covers aspects of the performance of the 1951 Holland Government. Chapter IV covers aspects of the conduct of the 1962 Holyoake Government after the 1962 reforms. Chapter VII deals with certain outstanding problems of procedural reform. It looks at the more specialised aspects of the conduct of the 1984-90 Labour Government and the 1990-91 National Government. It thus highlights certain main problems of interest to those who might wish to advocate better reform.

1.9. Conclusion ONE MAJOR goal of this thesis has been the comparison of the New Zealand A salute to some who have been there before. House of Representatives with aspects of the lower houses of Ottawa and Westminster as well as the Canberra Senate. Use has been made of the relevant literature from New Zealand and overseas and additional benefit has been gained from correspondence with authorities at these other legislatures. This is not to say that only overseas is there a model of a legislature that New Zealand might copy. Patterson says, 56

thesis. Patterson justifies this in saying "it is difficult to establish reliable claims about the consequences and possibilities of the legislative way of life without comparative analysis". 57 There are lessons worth noting and drawing from the experience of other societies, especially when there have obviously been calls to reform the legislature. For instance, Constant, in discussing "On the right to dissolve representative assemblies", said, 58

This sort of situation is discussed by Pateman in her analysis of Rousseau's theory of participation as it relates to institutional behaviour. While admitting this theory was strictly concerned with direct democracy and at a time before the development of the modern industrial state, she says "it is in his theory that the basic hypotheses about the function of participation in a democratic polity can be found.....participation is very much more than a protective adjunct to a set of institutional arrangements; it also has a psychological effect on the participants, ensuring that there is a continuing inter-relationship between the working of institutions and the psychological qualities and attitudes of individuals interacting within them". 59 Thus it is that by studying how others have developed, and possibly gone 56

Samuel C. Patterson, "The Comparative Study of Parliaments", Legislative Studies, Vol 4, No 1, Autumn 1989. Australian Study of Parliament Group, Canberra. 2600. p. 29. 57 Ibid 58 Benjamin Constant, Political Writings, translated and edited by Biancamaria Fontana, Cambridge University Press, Cambridge, 1988. p. 185. 59 Carole Pateman, Participation and Democratic Theory, Cambridge University Press, Cambridge. 1970. p. 195.

13


Constitutional Reform And Parliamentary Control

about reforming their similar institutions, can New Zealand society possibly improve their own in a manner best suited for that society. But as these quoted authorities show, democratic development of the New Zealand legislature needs the active participation of correctly motivated individuals coming forward from the wider community. Whether this occurs or not will be among the main criteria this thesis will examine.

14


Chapter 2. Select Committee On Standing Orders 1951 2.1. Procedural Niceties THE RECORD of the New Zealand Parliamentary Debates for the first day of The reform process begins. the Second Session of the Twenty Ninth Parliament, on Tuesday, 26 June 1951, is notable for demonstrating two important aspects.1 First, this episode showed the importance members of the New Zealand's House of Representatives appear to place on their links with the House of Commons at Westminster ( also known as the Mother of Parliaments).2 The Hon. Matthew Oram, Speaker of New Zealand's House of Representatives, informed members he had received a communication from Colonel Douglas Clifton-Brown, Speaker of the House of Commons. 3 This was in the form of an illuminated letter to members of the New Zealand Branch of the Commonwealth Parliamentary Association, thanking them for their gift of two dispatch boxes to mark the opening of the rebuilt House of Commons.4 The letter was on behalf of all Commons members. This said that the boxes would be "a constant reminder of the close and abiding link between this country and New Zealand." 5 New Zealand's gift reinforced Commonwealth linkages and was a timely reminder that its representative institutions come from a common legal and social historical tradition. The New Zealand House agreed unanimously to the motion of the Rt Hon. Sidney Holland, Prime Minister, that the illuminated letter of thanks received from the Speaker of the House of Commons be entered into the Journals of the House. The second item on the Order Paper was the tabling of the Report of the Select Committee on Standing Orders.6The subsequent handling of this by the House illustrates how the New Zealand House of Representatives reforms itself, particularly, at times of great constitutional change. As outlined in Chapter I, New Zealand had a bicameral legislature. This was set up under the authority of the New Zealand Constitution Act of 1852 passed by Parliament at Westminster in that year. The Constitution Act was received in New Zealand on 22 December 1852 but the General Assembly, consisting of the Governor-General, the Legislative Council, the Upper House, and the House of Representatives did not meet until 24 May 1854. 7 In 1949, a National Government had been elected to office after an absence from power of 1 New 2

Zealand Parliamentary Debates (NZPD) 26 June 1951, Vol 294, p. 1. "Mother of Parliaments". This term originally came from a speech

made in Birmingham in 1865 by John Bright, (1811-1889), Westminster MP. Oxford Dictionary of Quotations, Third Edition, Oxford University Press, Oxford. 1979. 3 The Hon. Sir Matthew Oram, 1885-1969, National, Manawatu, 1943-57, Speaker 1950-57. The Hon. Sir Douglas Clifton-Brown, 1879-1958, Conservative, Northumberland, Hexam Division, Speaker 1943-51, created Viscount Ruffside 1951. 4 The Commons debating chamber was destroyed by incendiary bombs in 1941. The rebuilt chamber was opened in 1950. 5 NZPD, 26 June 1951, Vol 294, p. 1. 6 Hon. M. Oram, Chairman, Report of the Select Committee on Standing Orders, I.17., Appendices to the Journals of the House of Representatives(AJHR), tabled 26 June 1951. Government Printer. 7 (W.K. Jackson, The New Zealand Legislative Council, Otago University Press, Dunedin. 1972. p. 22.

15


Select Committee On Standing Orders 1951 some 14 years. 8Mr Holland was their leader, with forty five seats in an 80 seat House.9National's 1943 Manifesto stated that the Upper House, as then constituted, served no useful purpose. National intended to replace the Legislative Council with a suitable alternative. 10 Mr Holland's new 1949 National government was committed to the Council's abolition. Keith Jackson shows that the National Party had toyed with the idea of abolition since 1941.11Holland's attitude had hardened after his election defeat in 1946. He had campaigned on the basis that the Legislative Council, as then constituted, had outlived its usefulness, and that it would be abolished when National was returned to office. During his research Jackson was unable to establish why the choice was for mere abolition rather than reform.12But he did establish that, in political terms, Holland's National Party had more to gain from abolition than from reform. Jackson says the most likely scenario was that of electioneering expediency. The Council had little public support and the abolition ploy was the better one to use against and embarrass a tired government, because no Labour Party member would be likely to support a National Party scheme for reform. 13Members of the Legislative Council were appointed, not elected, and by 1951, it had lost much of the influence it might have had last century. But "for the last fifty years of its existence successive governments were prepared to connive at its blatantly obvious faults because it offered them advantages in the field of patronage". 14Jackson identified differences between National Party members. For some, abolition went against their true beliefs and was acceptable only as a temporary expedient. But the wily tactician, Holland, and his supporters, expressed the emphatic belief that the upper house was useless and not worth replacing.15 In September 1950, Mr Holland's new National Government convened a Joint Constitutional Reform Committee of the two Houses. It was to examine and make recommendations on possible viable alternatives to the Legislative Council. Jackson points out that this was convened even before the Legislative Council had been abandoned.16But this Committee did not table its report until 1952.17 This was one year later than the Report of the Select Committee on Standing Orders, tabled in 1951, which had by then cemented in the working of a unicameral parliament. However, Jackson points out that the issue of the existence of the Legislative Council was not easily settled in the minds of many people.

8

Before the first Labour Government, led by Michael J Savage, came to power in 1935-49, the Reform and United(formerly Liberal) Parties had amalgamated in 1936 to form the National Party. 9 The Rt Hon. Sir Sidney George Holland, GCB, CH, 1893-1961, National, Christchurch North 1940-1946, Fendalton 1946-61. He had a background in hardware, his father's haulage firm, and was a party worker and official before entering Parliament. Michael J. Savage(P.C. 1936), 1872-1940, Auckland West 1919-1940, Savage was born in Australia, moving to New Zealand in 1907; he was a flaxworker and cellarman. He was active in the Auckland trade union movement and had a strong interest from an early age in social affairs. He became Deputy Leader of the Parliamentary Labour Party in 1918, assuming its leadership in 1933 on the death of its Leader Mr Harry Holland. 10 W.K. Jackson, The New Zealand Legislative Council, Otago University Press, Dunedin, 1972, p.195. 11 Jackson, p. 184. 12 Ibid. 13 Ibid. 14 Ibid., p. 183. 15 Ibid., p. 185. 16 Ibid., p. 200. 17 T.O. Bishop and Hon. R.M. Algie, Joint Chairmen, Report of Select Committee on Constitutional Reform, pp. 48, I-18., AJHR. Government Printer. 1952.

16


Select Committee On Standing Orders 1951

2.2. Political-Social Climate DURING 1951 Mr Holland's Government had fought a five-month conflict Mr Holland uses his newfound authority. with the wharf workers, but, ...the government had used very tough strike-breaking tactics and emergency powers. It is true that the force of public opinion alone managed to secure many amendments in the harsh Police Affiances Amendments Bill, 1951, but the government's actions at this time undoubtedly caused a great deal of concern to many thinking people in the country, not least to a number of their own supporters. 18 But an Upper House might have tempered this situation by possibly forcing the Holland Government not to act so precipitately. Jackson alludes to the founding of a New Zealand Council of Civil Liberties as a result of Mr Holland's Police Offences Amendment Bill. This body had little interest in the creation of a new second chamber, but elsewhere in the country interest in the fluid constitutional situation persisted. "The old Legislative Council had passed such notorious legislation as the 1932 Public Safety Conservation Act through all its stages in one day" ; but people continued to believe that a second chamber constituted a safeguard in a crisis. 19And crisis there was. Holland's National Government had loosened various economic and price controls, soon after resuming office in 1949. These controls had been put in place by the previous Labour administration. Now, stark political choices faced it, for it was unprepared for and caught in the inflationary effects of a world wide commodity boom related to the Korean War. Dr Bassett notes that the November 1950 local body elections results, "which saw substantial Labour gains throughout the country" were a timely warning to the National Party. "Resentment against the Government, as the deputy leader of the Labour Party the Hon. Walter Nash, had pointed out, did seem considerable.20 Bassett says that the Government found itself with limited choices: Either some stern economic measures would be necessary, or a way of gaining political kudos by distracting attention from the inflationary state of the economy would have to be devised. The more National Party members thought about it, the more attractive a battle with the watersiders seemed to be. It offered the prospect of a popular crusade against militant unions, long an object of contempt to National supporters. 21 Mr Holland and his party saw political advantage in such a crusade. Playing tough could only redound to their political benefit. The Legislative Council might have been a focus of debate about the issues involved in the dispute but had conveniently been abolished.22Parliament was prorogued on 15 March 1951 only three weeks after the announcing of Emergency Regulations thought necessary to deal with the waterfront dispute. Bassett says that the National Party had acted shrewdly to hold an election in the emotional atmosphere engendered by the waterfront dispute. "The waterfront dispute enabled it to provide its supporters with a more cohesive ideology of anti-Communism and anti-unionism in place of the vague anti-Labourism of 1949". He noted that Mr Holland now looked less like some interim Prime Minister "and more like the inaugurator of a lengthy period of National rule". 23 18 Ibid., 19 Ibid., 20

p. 201. p. 201. Michael Bassett, Confrontation '51, Reed, Wellington. 1972. p. 64. "The triennial elections of local authorities, held on the 18th November 1950, were interesting because of the change from Wednesday to Saturday and the introduction of postal voting". Department of Internal Affairs, Annual Report for the year ending 31 March 1951". it AJHR, H.22, p.7. 21 Bassett, p. 64. 22 NZPD, 22 August 1950, Vol 290, p. 1631. This was the date of the third reading of the Abolition Bill. 23 Bassett, p. 201. See also the Governor General's 1951 Speech from the Throne. This refers to the need to confront the revolutionary nature of Communism as the chief menace to international peace and the related need to rearm to counter this source of aggression. Also the Emergency Regulations were to be kept on and a British type Official Secrets Act Bill was proposed. N.Z.P.D., 26 June 1951, Vol 294, pp. 4-7.

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Select Committee On Standing Orders 1951

2.3. The Mode Of Change THE NEW 1951 Government did not wait for any possible benefit from the Reform was in the wind.

Report of the Select Committee on Constitutional Reform. This did in the end recommend a Senate, as a "viable alternative". Jackson concluded that New Zealand just slid into adopting a unicameral system, a decision he said which the country has never made formally. He compared New Zealand's constitutional change methodology with Denmark's move to unicameralism in 1953.24 During this change, they also enlarged their Lower House, used a referendum and established an Ombudsman, all part of the integrated process concomitant with abolishing their Upper House. In studying Danish practice, it is not suggested, necessarily, that New Zealand should imitate, without any prior analysis, the practices of much larger institutions, which serve more populous and complex societies than that of New Zealand. But within the field of human thought and social action there are timeless and all-embracing issues that any community which desires viable representation processes surely needs to consider. In New Zealand the 1951 Standing Orders exercise was a closed process conducted solely between politicians without reference to any other aspect of constitutional change or possible community sentiment.

2.4. The New Rules For The House THE STANDING ORDERS of the lower house needed changing owing to the The detail of the new reforms. abolition of the upper house. This would allow the remaining lower house, the House of Representatives, to conduct its business properly. Previously there had been various joint legislative and administrative arrangements between the two houses. But as will be shown the executive dominated the Standing Orders Committee. This had not been convened since 1929, for the subject of inner procedural reform of Parliament had been very much a non-issue throughout the 1935-49 period of the legislatively reformist Labour administration. Mr Holland moved several motions concerning the Standing Orders Committee during 1950. Prominent among these was the last motion put down for business on 1 December 1950, which provided for the power to recommend such amendments to the Standing Orders and to the procedure of Parliament as might be necessary consequent upon the abolition of the Legislative Council and consideration of such other amendments as would facilitate the dispatch of business.25 On 26 June 1951 Deputy Speaker and Chairman of Committees, Geoffrey Harker, moved that the Report of the Standing Orders Committee be presented on behalf of the Speaker.26He had been a member of the Standing Orders Committee, which had been chaired by the Speaker the Hon. Matthew Oram.27Mr Harker did not mention the wider constitutional ramifications of the abolition of the Legislative Council. He noted that the Committee's work had involved a reconsideration of all the Standing Orders.28They had been put in a better and more logical order, as well as accommodating the need to develop suitable procedures for a single-chamber legislature. They had deliberated on a process which in-

24 Jackson, 25

p. 199. NZPD, See Vol 289, 25 July 1950, p. 619 and 1 August 1950, p. 906, the latter stating the membership of the committee. See Vol 293, 30 November 1950, p. 4757, adding Rt Hon Mr Nash to the committee and on 1 December 1950, p. 4837, a motion setting out the fuller terms of reference of the committee. 26 The Hon. Geoffrey Harker, OBE, 1899-1970, National, Hawkes Bay 1940-63. Harker was Chairman of select committee which produced "Harker's Rules". See AJHR, I.17, 1956, Minister's Private Interests Committee.This Committee had the Prime and Deputy Prime Minister on it as well as only Ministers, ex-Ministers and party whips. It had no backbenchers as members. 27 M H Oram, Chairman, Report of the Select Committee on Standing Orders, 26 June 1951, pp. 4, I-17, AJHR, Government Printer. 28 There were 465 Standing Orders.

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Select Committee On Standing Orders 1951

volved removing an upper house from the Constitution. But allowances had to be made for the fact that the upper house previously had some check upon government.29 26 June 1951, p 2 Its powers had included the ability to initiate its own bills and reports, together with limited power to delay passage of bills from the lower house. In normal circumstances governments had had to consider the Council's powers of delay, minimal though they may have been. As this study will show, since 1951 the Executive progressively has been enabled to rush legislation through the remaining lower house. Mr Harker reported that the Committee recommended, "In consequence of the abolition of the Legislative Council, provision has been made for the interposition of delay between the Committee stage and the third reading on public bills and where necessary for a delay of the third reading itself". 30This question of delay evoked heated Opposition response during the subsequent debate. Mr Harker quoted four instances where the Committee had drawn from English practice to deal with both public and private member's bills. He also noted the Committee's move to provide new powers for Government to have control over selected parts of Parliament previously free from executive control. Speakers of both Houses had previously exercised joint control over the total precincts of Parliament. Yet the Committee report said there needed to be a clearer definition of the relationship between the authority of the Executive and that of Parliament with regards to its buildings. The Standing Orders had been last reviewed in 1929 and the position needed clarifying. However, the Report itself is rather vague about what portions of Parliament the Executive is to control, saying that, "the result will be that some (emphasis added) portions of the buildings which according to the original Standing Order came under the control of Mr Speaker will now come under the control of the Government". But the tabled Report did record Speaker Oram's dissent to this. The Committee delivered twenty two main recommendations for public bills and general procedures and seven recommendations for local bill procedure. Although there is no set of draft Standing Orders in the published Report of the Standing Orders Committee the main recommendations to changes in procedure were as follows: with English practice. with English practice. • New rules for the appointment of the Speaker. • A more logical sequence of dealing with the absence of Members. • Deletion of the provisions for calling over the House. • Private Members Bills to be introduced in order of introduction. • Alteration of the rules of debate and adjournment debates. • Matters of urgent public importance to be handled more closely in accord • Clearer definition of the pecuniary interest of Members disentitling them to vote. • Revision of the rules applying to Members who have been suspended. 29 it 30

Standing Orders Report, Ibid.

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Select Committee On Standing Orders 1951

• Clarification of the rules governing the class of bill now introduced by Governor-General's message. The method of introducing a bill was clarified as well as the definition of a "money bill". • The rules concerning the maintenance of order to be recast in accord • Modification of the closure rule. • Removal of the inconsistency between the rules relating to Sunday sittings and urgency. • New quorum rules. • Simplification of the Imprest Supply bill procedure. • Due to the abolition of the Legislative Council delay was recommended "between the Committee stage and the third reading on public bills and where necessary for the delay of the third reading itself". • More strict compliance with Standing Orders on the part of local authorities in relation to local Bills. The Standing Orders Committee further recommended that: • Subsequent openings of Parliament be conducted in the former Legislative Council Chamber, to be called "the Council Chamber". • At the openings of Parliament there be appointed a Commission of three Judges. In Commission, they were to be introduced into the House of Representatives "and that their Commission be read in that Chamber". • it is " desirable that an attempt should be made to define those portions of the buildings which should come under the control of the Government and those which should be under the control of Mr Speaker. Standing Order No. 461(which now appears as Standing Order No 398) has been amended accordingly. The result will be that some portions of the buildings which according to the previous Standing Order came under the control of the Speaker will now come under the control of the Government.(Mr Speaker dissented.) • There be no further consideration of the question of mechanical recording of votes. But they also recommended that "time-limits of speech in certain debates be reduced" and that "extensions of time be limited to half the original period but subject to the granting, by leave, of a further extension or extensions". For local bills the main changes were, • The promoters of local bills were to pay fifty pounds, up from the twenty five set in 1882. • Notice must now be given as to who were the promoters of any local bill or "to the appropriate Government department where the rights of the Crown are or are likely to be affected by the provisions" of any such bill • The existing Standing Orders for local bills were previously written in the Legislative Council. Traditionally, no time-limits were imposed. "Provision is now made to apply the rules of debate and amendment proscribed for public bills to the various stages of private Bills".31

31

Standing Orders Report, I-17, AJHR, . pp. 2-4. The section headings were those as used in this Report.

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Select Committee On Standing Orders 1951

2.5. Probity Of Records THE SPEAKER dissented over the Government taking control over whatever The Standing Orders Committees leave no full records.

portions of the Parliamentary buildings it chose. But the Standing Orders Committee Report left no written record of its proceedings or daily Journal of Record in which the Speaker's dissent and grounds for it might have been recorded more amply. The Report was in the name of the Speaker, a member of the committee. It consisted of only four pages and dealt briefly and in general terms with all the standing orders for public and private bills. A full Journal of Record would have shown how the Committee had worked through, and discussed, each of these standing orders. As it is, the Speaker's dissent over the changed jurisdiction over parliamentary space is only noted in the tabled report. Nowhere is there a record of his reasons, obvious as they might have been.

2.6. Absence Of Written Records THE REPORT records that the Standing Orders Committee was not unanimous Serious gaps in the recording and publishing. in its recommendations. Yet it also refers to a consensus of opinion being opposed to certain other proposals, which were not itemised. But there is no record of the Committee proceedings from which to glean the reasons for its members' divergence of views. Unfortunately, New Zealand select committees, now as then, do not record any daily Journal of proceedings, as occurs at Westminster, Ottawa and Canberra. If recording and publishing had been the practice, the executive members who dominated the Committee would have been forced to have their ideas and comments on mooted changes recorded for later public comment. Such a record could have been used in the House during subsequent debate and for future public scrutiny to gauge the performance of the committee members. By contrast, the original parliamentary system, installed in 1854, has left many committee records complete with their published daily journals and verbatim questioning of witnesses. However, this system was allowed to fall into disuse. McGee records that before World War I, it was common for short-hand reporters to prepare verbatim transcripts of evidence.32The transcripts were printed, together with committee minutes and reports and published in the Appendices to the House and Legislative Council Journals. This practice was cut back during World War I, supposedly as an economy measure and was not resumed after 1918. Since then, verbatim transcripts of committee minutes and reports have been prepared and printed on only a few special occasions. Last century, full recording and publishing did occur. But one can infer from McGee's terminology, that is, that the preparation of verbal transcripts was "common", that the practice was not de rigueur and a universal practice, even in 1914. There is ample evidence of full recording in the early published Hansard and the Appendices to the Journals of the House and the Council. For instance, an example of such a full transcript exists in a 1900 report of a select committee convened to inquire into the conduct of Mr James Grattan Grey, Chief Hansard Reporter. Grey had a contract permitting him to work in Parliament while continuing his previous journalism. Unfortunately, Prime Minister Seddon, who had strong Imperialist ambitions, took strong exception to Grey's extra-curricular journalistic efforts regarding the Boer War.33 Grey's articles, some of which had even appeared in the New York Times, amongst 32

McGee, David, Parliamentary Practice in New Zealand, Government Printing Office, Wellington, 1985, p. 201.

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Select Committee On Standing Orders 1951

other publications, had asked whether the Boer War was a "just war" and questioned whether New Zealand should be dragged into this British Imperialist excursion. He was summoned to appear before the Reporting, Debates and Printing select committee. The published transcript of questions and answers shows that Grey's main complaint was that his contract with Parliament should have provided him protection from the attentions of the Government. It transpired that his direct employer was not only the Speaker, but that obvious conflict of interest rules did not inhibit this Officer from sitting on the committee investigating the complaint against Grey, his employee. The records show that Grey's employment was terminated on 19 July 1900, after four years of service. The Reporting, Debates and Printing Committee of the House of Representatives did not exist in 1951, nor does it today. These responsibilities have been delegated to the Clerk of the House, without a regular reviewing system being put in place by Members. Today, there are no select committee or set of select committees entrusted with these responsibilities as is common overseas. In 1900, however, Members were directly involved in the management of this area of the total systems of the House. This also then applied to the Legislative Council. But these Reports of this 1900 select committee clearly show how the then system did make members publicly accountable during the conduct of any inquiry, and how Grey was afforded full natural justice, in that a full transcript was made and published in the record. Practice of that time also ensured that the parliamentary record contains a full list of the correspondence between Mr Grey and Premier Seddon. The Reporting, Debates and Printing Committee of the House last reported to the House in 1906. Again, Westminster and Ottawa are more accountable in their select committee practice of publishing the voting record of members, when clauses of reports or bills are approved, in their daily Journals. The records can show either unanimous assent or the voting roll on divisions for each clause. Daily attendance records of members and of the witnesses who had been examined, together with records of full proceedings are published in the daily Journals. This enables Members to be held accountable to their constituencies and to be available for questioning in the House over their individual committee voting decisions. Today the New Zealand House fails to demand such accountability of Members when they operate in select committees. In 1951, and even today, the House of Representatives records and publishes only Committee of the Whole House (CWH) proceedings on specially sanctioned occasions such as consideration of a Standing Orders Committee Report or maybe a Report of the Privileges Committee. On other occasions, such as the handling of bills in the CWH stage, only the motions, divisions, decisions taken and necessary rollcalls are as a matter of course recorded and published. Yet in 1951, Members were stating their adherence to the example of the Mother of Parliaments, which unfailingly records and publishes a daily Journal of Proceedings, as do the Ottawa and Canberra Houses.

2.7. Executive Dominance IT IS NECESSARY to discuss the role of the Executive in the 1951 Standing Mr Holland free from democratic constraints. Orders exercise. Prime Minister Holland had been a member of the Standing Orders Committee and was undoubtedly a dominating factor in its proceedings. This draws into sharp focus the power of New Zealand Prime Ministers. They can impose their wills over matters of great constitutional importance such as the abolition of an upper house. As Mr Holland's actions highlight, any Prime Minister has at his or her beck or call the power of their political majority in the House. Keith Jackson has demonstrated some measure of the degree to which the executive, and its servants, are able to dominate the New Zealand system. He notes that though the Westminster system stabilised a position favourable to executive authority, in the majoritarian mode, the process of executive dominance has gone faster and further than elsewhere in the New Zealand Parliament, because of its small size and developed party cohesion. Size and party cohesion represent variables always needing special consideration in any analysis of the New 33

John Mackay, Government Printer, Correspondence between the Rt Hon the Premier and the Chief Hansard Reporter, A.J.H.R., H.29, pp. 4, 1900 and Report of the Reporting, Debates and Printing Committee, I.8, pp. 3, Government Printer. Brought up 17th day of July 1900, and ordered to be printed.

22


Select Committee On Standing Orders 1951 Zealand political situation.34 The National Party gives its leader, once elected, the unchecked power of appointing the Cabinet. Labour insists that its parliamentary caucus selects ministers, with the Leader allocating responsibilities. 35 "Nevertheless, even a Labour Prime Minister has the right to dismiss up to three Cabinet ministers, and a right to choose non-Cabinet ministers." 36 Wood says that "In the Labour Party the leader is subject to triennial re-election, in the National Party the leader is dismissable". But these leaders have to conform to the rules of their respective systems. Conversely, the exercise of their great powers not only reinforces the system but in turn boosts prime ministerial power and control over "the organs of government, the prestige of Cabinet and the power of Parliament". 37 Moreover, all Ministers, whether in Cabinet or outside it, are sworn in as members of the New Zealand Executive Council. Among other powers, this has the power of making regulations and Orders-in-Council. This tends to draw all Ministers, and as previously pointed out, those outside Cabinet, into a tight, collegial relationship under the domination of the prime minister of the day ensuring at times quick executive action particularly by the use of those regulations and Orders-in-Council. The Attorney-General's Act 1867 limited the numbers of the Executive Council to seven members but in 1908 it was repealed.38 In 1917 the Royal Letters Patent were used to open the way to increase the size of the Council. 39 After the 1908 repeal, membership of the Executive Council gradually increased. By 1920 it is seen that "the present Executive Council consists of twelve members in addition to the Governor-General. Two members, exclusive of His Excellency or the presiding member, constitute a quorum". 40Membership has subsequently increased to thirteen in 1945, seventeen in 1950, twenty in 1975 and twenty-two by 1985. 41. By 1 July 1992 the membership of the Executive Council had risen to twenty-six. This shows a trend whereby in 1876, the executive branch was approximately an eighteenth of the size of the legislative branch of government but by 1 July 1992, this ratio had risen to make the executive branch fully one quarter of its legislativecounterpart.42 In this calculation the legislative branch is assumed to include the membership of the Legislative Council, even though it was an appointed body. Thus it will be seen that by abolishing this body Mr Holland did, at one step, drastically alter the ratio between these two branches of government. There is double-counting involved as ministers are listed as Members of the House of Representatives. But the trend since last century does show how ministers, as a relatively large collegial block, are now able to dominate the caucus of their governing party and the House in a manner not possible earlier. The situation today can be summed up by the following quotation from the Prime Minister's Department: In reply to your query as to whether there is any legal or constitutional limit to the number of persons able to be designated as "Minister", we advise there is no legal limit. Nor is there any limit to the number of persons able to be appointed to the Executive Council. 43 34 Keith 35

Jackson, The Dilemma of Parliament, Allen and Unwin with Port Nicholson Press, Wellington. 1987. p. 27. The Labour system can be subverted. It was reported by a source close to the 1972-75 Labour Ministry that the new Prime Minister Norman Kirk obtained an initial Cabinet of his own choice, by supplying a list of his preferences to those members of caucus he wanted as ministers. Fifteen of the preferred seventeen were obtained on the first ballot. It took five more ballots which confirmed two non-preferred ministers from the Wellington region, to provide a geographical balance. 36 G.A. Wood, Governing New Zealand, Longman Paul, Auckland. 1988. p. 18. 37 Ibid. 38 "Public Acts and General Acts(Alphabetical)", Butterworth's Annotations of New Zealand Statutes, Volume II, (Statutes)., Butterworth and Co. (Aus) Ltd. Wellington. 1929. p. 414. 39 "Letters Patent passed under The Great Seal of the United Kingdom, constituting the Office of Governor-General and Commander-in-Chief of the Dominion of New Zealand". 11 May 1917. LIVERPOOL, Governor-General, Government House, Wellington. 17th April 1919. The New Zealand Gazette, VOL I. By Authority: Marcus F. Marks, Government Printer, Wellington. 1919. p. 1213. 40 New Zealand Year-Book, 1921-22, By Authority: Marcus F Marks, Government Printer, Eyre and Spottiswoode, Fleet Street, London. p. 27. 41 New Zealand Year-Book 1945. By Authority:E.V. Paul, Government Printer, p. 9. New Zealand Year -Book. 1950. R.E. Owen, Government Printer. p. 47. Figures as at 1 January 1974. New Zealand Year-Book. 1985, Information Services, Department of Statistics. p. 48 42 NZPD, Weekly Version No. 70, 9 March to 11 March 1993.

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Select Committee On Standing Orders 1951

This trend since last century also highlights Lijphart's point concerning "the fusion of powers" between the various branches of government. Also, the structural reasons for prime ministerial power are reinforced when the political system throws up leaders with strong personalities. For instance, Jackson identified Mr Holland's ability to score political points over the Labour Opposition and to curb dissent within his own party; a remarkable achievement, this required what Jackson diagnosed as "ruthless tenacity of purpose and some sleight of hand".44Within the New Zealand Parliament the Executive is allowed to dominate those occasions when the Standing Orders are reviewed. In 1951 it was Mr Holland who moved the motion to convene the Standing Orders Committee, with himself as one of the committee members. However, he further nominated the Hons. William Bodkin, Minister of Internal Affairs, Keith Holyoake, Minister of Agriculture, Clifton Webb, the Attorney-General, the Chairman of Committees Mr Harker and the Speaker Hon. Matthew Oram. 45 This left four members of the Opposition on the committee, one of them an ex-minister and another a party whip. So a majority of the committee would have the mind-set of a Minister. This ensured that the every-day working needs of backbenchers or of wider representational issues that such Members might have brought to any such study, would not be given prominence. This authority situation also could have inhibited the development of ideas making the executive more accountable. Thus, the executive dominated the Standing Orders Committee.

2.8. The Position Of The Speaker AT THIS POINT the position of the Speaker needs to be briefly discussed, The lack of constraint on New Zealand's Speaker. given the role he plays in the internal reform process of the New Zealand legislature. In New Zealand the Speaker always comes from the ruling party, changing as the government changes. There is no carry over after elections as can happen at Westminster and previous cabinet office is no encumbrance to becoming Speaker. There are also cases of Speakers going on to become ministers. The present Speaker, the Hon. Robin Gray was previously a senior party whip. Westminster tries to select its Speakers from backbenchers but, as K.C. Wheare shows there are exceptions to these rules; with some Westminster Speakers having held ministerial office and occasionally even needing to run for election against other candidates.46 But once installed, Westminster Speakers, like those at Ottawa, are not found on any select committee examining the rules, the Standing Orders, over which he or she has to adjudicate. Also it is the custom, (in Ottawa as well) that the Speakers make submissions to such committees and also have their role and performance examined, in camera, if needed. As Wheare points out, at Westminster there is some attempt to separate the Speakers from the political party from which they must come and give greater priority in serving the institution. At Wellington neither National, or Labour, when in power have ever moved to change the present situation of having a "political" Speaker. This is not thought strange by Members or their parties. A past New Zealand Speaker, Sir Roy Jack, has said: In New Zealand, the Speakership is regarded as a spoil of office and, for decades, both the Speaker and the Deputy Speaker, have been appointed

43 Communication from Kay Packer, Private Secretary, Office of the Prime Minister. 20 June 1991. 44 W.K. Jackson, The New Zealand Legislative Council, University of Otago Press, Dunedin. 1972. 45 Bodkin, W.A.(KCVO 1954), 1885-1964, Coalition United, National, Central Otago 1928-1954. 46

p. 197.

K.C. Wheare, Legislatures, Oxford University Press, London. 1963. p. 24-25. See also Chapter I, Footnote No. 37.

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Select Committee On Standing Orders 1951

from the majority or Government side of the House. In Great Britain, by contrast, not since as long ago as 1834 has a Speaker changed as a result of an Opposition Party ousting government at an election.47 McGee also discusses how New Zealand Speakers do not sever formal links with their political affiliations, to the same degree as their Westminster counterparts. 48In New Zealand there has been only one Speaker who has spoken out strongly, and in writing, about executive domination over the legislature. In 1868 Speaker Sir David Monro complained to the Hon. E.W. Stafford, Colonial Secretary, that the powers of the Speaker with regard to the appointment of staff and the payment of salaries in Parliament were clearly not the responsibility of the Speaker. 49He quoted from Todd's Parliamentary Government in England saying that at the House of Commons it was the Commissioners appointed by statute who, under the chairmanship of the Speaker, made the decisions with regards to appointments, salaries and administration expenditure. "If the establishment requires to be varied or increased, the Treasury is not consulted.....The Treasury adopt his (the Speaker's) return without examination, and include the amount in the estimates because it concerns the internal economy (emphasis added) of Parliament". 50 Legislative Assembly, Canada Needless to say, Colonial Secretary Stafford did not accede to this request, saying, "I would observe that whatever may be the practice in the United Kingdom as to the provision for the establishment of the House of Commons, the Legislatures in this and, so far as the Government is aware, other Colonies constitutionally governed, have not made any distinction between Executive and Legislative Departments, with reference to the manner in which the cost of their maintenance is to be estimated or provided".51The ten letters exchanged between the Speaker and the Colonial Secretary were tabled in this Paper. They provide an interesting insight into the politics of the time, especially when Speaker Sir Monro includes mention of his own correspondence with Sir Thomas Erskine May.

2.9. Policy Communities AT THIS STAGE a brief mention is needed of the term "policy community" in

47

Sir Roy Jack MP, "A Speaker Looks at Parliament", The Reform of Parliament, Ed. Sir John Marshall, New Zealand Institute of Public Administration, Wellington, 1978. p. 83. 48 David McGee, Parliamentary Practice in New Zealand, p. 26. 49 David Monro(Kt 1866) 1813-77, Waimea 1853-55, 1858-60, Picton 1861-1866, Cheviot 1866-1870, Motueka 1871. Speaker 1861-70. E.W. Stafford 1819-61, Nelson 1855-1868, Timaru 1868-1870, 1871-78. Premier 1856-61, 1865-69, 1972. 50 Alpheus Todd, Parliamentary Government in England, its origins, development and practical operation Vols I & II, Longmans Green, London 1880. Vol I, p. 405. Todd was the Librarian of the Canadian Legislative Assembly. There is now an independent "Board of Internal Economy" running their House of Commons similar to the British House of Commons Commission. 51 Correspondence as to The Arrangements for the Meeting of the Legislature, In continuation of Papers presented 30th September, 1867. Parliamentary Paper, 1868, D-No. 2, pp. 5.

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Select Committee On Standing Orders 1951

Where are the visiting firepersons? relation to this Standing Orders Committee exercise. Charles Levine of the Congressional Research Service, Library of Congress, discusses policy communities as "specialists and experts in a given policy area who share interactions and ideas with one another. Such communities generate common outlooks, orientations, and ways of thinking that lend a high degree of stability to the policy agenda". 52 This can apply to any subject in the field of politics such as, in this case, parliamentary reform. This study will show that overseas there are well developed policy communities usually present when the Standing Orders and related procedure are under discussion in their legislatures. Overseas Reports that will be quoted show submissions coming forward from a wide range of professional and community groups. Significantly, the 1951 Standing Orders Committee did not call for submissions from outside sources nor, as far as it can be ascertained, was there any attempt to make any. As will be shown in this study, in New Zealand there seems little attempt made either to create public awareness of such proceedings, or if this is lacking, to press for a wider community interest prompting the development of a policy community especially interested in the inner procedural law and process of the New Zealand Parliament. In 1951, New Zealand's policy community related to parliamentary reform seemed non-existent. The debate from outside Parliament was only about the need, or not, for a second house. There was no external comment over the internal procedural change being discussed here. It is puzzling that there was such a lack of interest. After all, one of the functions of any Parliament is to contain the growth of any governmental machine as well as define through its procedures the level of accountability of any Government. But in 1951 external interest group activity had not produced any policy community much interested in inner procedural change and reform of the process of the New Zealand Parliament.

2.10. Financial Management & Control THE 1929 STANDING ORDERS had specified that two special Committees of the From small Canadian beginnings do wondrous things evolve.

Whole House (CWH) should be convened at the beginning of each Session. One was the Committee of Supply which dealt with expenditure. The other was the Committee of Ways and Means dealing with revenue. The two Committees were where much of parliament's business was conducted and each could be convened at will. But Professor Leslie Lipson says that they only reproduced in larger compass what went on in the Public Accounts Committee. "Here again the work is perfunctory, and the discussion inadequate. Departmental votes totalling large sums and comprising many items may be authorised in a few minutes". 53 But the 1951 Standing Orders Committee exercise did not change this situation. A Public Accounts Committee had been established in 1871, but, unlike the Westminster committee of the same name, which audits the Public Accounts, Wellington's Public Accounts Committee attended only to the Estimates and other matters at random. Moreover, this committee was convened only sporadically and, by 1951, had not reported to the House since 1945. Estimates were passed to it directly by Government, to which it usually returned its subsequent Report, on those occasions when it did meet. In 1951 there was no mention in the Standing Orders about this Committee's existence, its role or its reporting to the House; neither was there the custom, or opportunity provided, for taking Government and its advisers to task about perceived faults in the Estimates or the related administration of the policies in-

52

Charles H Levine, Where Policy Comes From:Ideas, Innovations, and Agenda Choices, Public Administration Review, American Society of Public Administration, Washington. January/February 1985, p. 257. 53 Lipson, Professor Leslie, The Politics of Equality, University of Chicago Press, Chicago, 1946. p. 325.

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ferred by them. Lipson recounts how the Public Accounts Committee certainly had the potential to give the House some control over finance. However, in reality the work of the committee was absolutely inadequate; a claim conceded by officials and parliamentarians with whom he had discussed the matter. Certainly, when the committee did meet it conducted hearings on departmental estimates. Departmental chief executives and their senior staff attended the committee. 54 But the hearings were so brief that a department's whole estimates, which involved millions of pounds, might be disposed of in less than three-quarters of an hour.55Some committee members were unversed in public finance, while others wanted the business expedited. Departmental chief executives assured Lipson that the Chairman of the Public Accounts Committee would turn over the pages of the estimates rapidly and ask committee members if they had any questions about the items on each page. The questions asked usually dealt with small matters of purely local interest to the inquiring member's electorate. More importantly, issues of wider national interest were seldom raised. This meant that questions related to the wider accountability of Ministers and their departmental officials, particularly concerning performance over time, could not be pursued. Lipson quoted a high civil servant: "As a form of public control, the work of the Public Accounts Committee is virtually valueless".56Also, in 1951 another Wellington failing, which favoured executive domination, was the absence of a select committee devoted to audit examinations of the Public Accounts and related post-operational matters. In 1861 Mr Gladstone had authorised the setting up of a Westminster Select Committee on the Public Accounts, always chaired by one of its Opposition members. The committee, however, was not wholly of Gladstone's doing. It was a replica of Public Accounts Committees operating in Canada from the 1830s, and as Chubb concluded, it was first and generally the work of busy and able parliamentarians who had been interested in procedural problems since the 1820s.57 Surprisingly, New Zealand produced an Audit Act for itself in 1858 before Westminster's Exchequer and Audits Departments Act of 1886. The Audit Act (1858) gave clear and strong authority to a three person audit select committee selected by the House. Each Member could vote for only one person and the Chairperson was selected by the Speaker. The committee had clear terms of reference and direct power to send for persons, papers and records. Witnesses could be examined under oath and the committee had powers to fine and/or imprison recalcitrant 54 Ibid. 55 New Zealand's monetary 56 Lipson, p. 325. 57

unit changed from pounds to the dollar, decimal currency in 1967.

Gordon Reid, The Politics of Financial Control, The Role of the House of Commons, Hutchison University Library, London 1966, p.95 and Basil Chubb, The Control of Expenditure Oxford University Press, 1952, pp. 6-23.

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witnesses. Admittedly this Committee did not have a very clearly stated "control" function but its statutory role pre-dated those only granted by other Parliaments this century.58 But the pathfinding Audit Act 1858 was repealed in 1867.59To this day, successive Controllers and Auditors-General, including the present one, have complained about the lack of a separate Audit Act which would give the sort of independent status enjoyed in other Commonwealth Parliaments.60What little statutory definition the Auditor-General and his staff have is contained in the Public Finance Act 1989, whose main purpose is to specify Treasury's duties. But, the Audit Office is still the responsibility of a Minister, with Parliament not involved in the choosing of a Controller and Auditor-General. However, most select committees were then convened on an ad hoc basis. In 1951 the Standing Orders only specified two permanent select committees, those for Lands and Local Bills. Overall, this meant that the House of Representatives gave back-benchers few permanent arenas where they could start their parliamentary apprenticeships free from the domination of senior Government or Opposition members. In turn, this situation ensured that control over money allocated for governmental operations, and the ensuing accountability of the executive and its servants, for the use of that money and the conduct of those operations, was at a low level. For control here is as described by E.L. Normanton in being "external" to governments through stemming from the action of legislatures and state audit bodies. Moreover he says "By extension, public opinion is also a sort of external control".61But as pointed out, public opinion in the form of some external policy community wanting to come forward with its views on the inner processes of the New Zealand Parliament was absent during this 1951 exercise; neither were they invited.

2.11. The Debate In The House: The Procedure ON 26TH JUNE 1951 Mr Harker, Deputy Speaker and Chairman of Committees, The verbal jousting begins.

presented to the House the Report of the Standing Orders Committee. In this he acted for the Speaker,

58 See 59

No 31, An Act to provide for the Audit of the Public Accounts of the Colony of New Zealand, [21st July 1858]. "The Audit Act 1858 was repealed by No 84 of 1867 (the Public Revenue Act, which was in turn repealed and replaced by later Acts dealing with public finance and the audit of public funds)". Communication from Mrs Alison Quentin-Baxter, Director of the Law Commission, 25 November 1992. 60 See plea of Controller and Auditor-General James Edward FitzGerald in Parliamentary Paper I.9, p.4, Session II, 1891. Under "The Status of the Audit Department", he points out to the Public Accounts Committee the lack of any statutory basis of the Audit Office. He contrasts this with procedures laid down under the U.K. Exchequer and Audit Act, 1866. 61 E.L. Normanton, The Accountability and Audit of Governments:A Comparative Study, Manchester Press, Frederick Praeger, New York, 1967. p. 23.

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Hon Matthew Oram, who had signed the Report as its Chairman. Two separate sections were tabled. One was of three pages covering public business, the other was of one page, which covered private bill procedure. The review prefaced the most significant constitutional change to occur in New Zealand in the previous 100 years. Yet it was disposed of by Parliament in the space of a four page Report, without any Journal record of its select committee proceedings. Inquiry into these weighty matters had been a rather strange private affair. There were no public submissions; none were even called for. In a strange quirk of parliamentary procedure, Government members of the committee had apparently been able to keep the Opposition in the dark about much of the proceedings of the committee. So, when Mr Holland moved that Reports of the Select Committee on Standing Orders be debated the following day, his motion provoked an incredulous objection from Labour opposition member, Rex Mason. 62Hansard records: Mr Mason.What! Before we have seen it? Are we not to have time to read the draft before debating it? Mr Speaker. Printed copies will be circulated to all members tomorrow. The Right Hon. Mr Holland. This is the only course that is possible. We must have some Standing Orders to proceed with and the copies will be printed immediately. I am not sure that has not already been done in anticipation of this procedure being adopted. The proposed Standing Orders will be circulated and members will be given as much time as possible to consider them. Motion agreed. 63 Mr Holland's claim to be without Standing Orders for guidance is surely nonsense, because the existing Standing Orders, ratified in 1929, had never been repealed and were still the operant Standing Orders, quite suitable for the conduct of such a debate. Certainly, no great uproar greeted Mr Holland's constitutional legerdemain. But even in the political and social climate described, Opposition members cannot be completely absolved from blame for failure to hold the Prime Minister more accountable in the House. Nevertheless, it is difficult to understand how the 1951 Labour Opposition could justify a complaint about their lack of opportunity to contribute. Initially four Opposition Members were voted on to the Committee by Mr Holland's original Motion of Tuesday 1 August 1950; these were Messrs Carr, Fraser, McCombs and McKeen. 6465 These members had a ten month period, from the convening of the committee to the tabling of its report, in which to chart a strategy for reform and participation---had they wished. Opposition members might be judged as ignorant of procedures or badly advised, had they been inexperienced. But the four Opposition members were experienced, senior members, surely used to the realities of high political office and House procedures; few possibilities present themselves regarding the cause for Mr Mason's complaint about experiencing difficulty in making a submission because he did not know when the committee was meeting at face value. Either Mr Mason and his senior colleagues were incompetent or, perhaps, Government committee members conspired to prevent the Opposition being informed of the dates and times of meetings. Either way, this episode does suggest the lack of any body of clearly laid down procedure, in some way superior to the needs of only political parties and their dominant figures. Moreover, there was no stress upon the value of open public proceedings. Mr Nash had been appointed by special motion to the Standing Orders Committee on Thursday, 30 November 1950, following the death of the Rt Hon. Peter Fraser. He had been the previous Labour 62 The Hon. Rex Mason, CMG, QC, 1885-1975, 63 NZPD, 26th June 1951, Vol 294, p. 3. 64 See Footnote No. 24. 65

Labour, Waitakere 1926-66.

Reverend Clyde (Leonard) Carr, 1886-1962, Labour, Timaru, 1928-62, The Rt Hon. Peter Fraser, CH, 1884-1950, Labour, Wellington Central 1918-43, Brooklyn 1946-50, The Hon. Sir Terence McCombs, OBE, 1905-82, Lyttelton 1935-51, The Hon. Robert McKeen, CMG, 1884-1974, Labour, Wellington South 1922-46, Island Bay 1946-54, Speaker 1947-1950.

29


Select Committee On Standing Orders 1951 Prime Minister and Mr Nash had been his Finance Minister.66Thus the committee contained enough senior Opposition members to have brought together a collective pool of competence and parliamentary skills normally able to match its parliamentary adversaries. Normally, such a group, even in any parliamentary Opposition, should have been able to keep abreast of government stratagems designed to foil participation in committee work. The Select Committee on Standing Orders had been convened on Tuesday 1 August 1950, and that debate took place on 26 and 27 June 1951. Thus almost a year had elapsed by the time complaints about lack of participation and notification of meetings surfaced in the House. Partly, this was caused because the committee had to adjourn frequently to accommodate the overseas travel of its executive members, in particular Prime Minister Holland. This practice and procedure was in contrast to that of Westminster and Ottawa. There, select committees may give the executive an opportunity to make submissions, as in the example of the Government Memorandum submitted to Westminster's 1945 Procedure Committee.67But these two Parliaments allow only backbenchers to be members of their reforming and review committees. The debate upon the Report of the Standing Orders Committee started on the following day, 27 June 1951. This brought to the surface further evidence of a strange attitude to procedures. The Hon. Walter Nash complained about the Opposition's inability gainfully to contribute to the Report under discussion. The Attorney-General Webb commented upon certain reforms, which Labour Opposition member Hon. Mr Mason was interested in.68 Hansard records the following interchange,: Mr Webb. He did not know whether the member for Waitakere (Mr Mason) could have attended meetings of the Committee, but it was a fact that he had not been notified when the Committee was meeting. The Hon. Mr Mason. There was no suggestion that any one would be welcomed, or would have any status. The Hon. Mr Holyoake. The honourable gentleman would have been welcome. The Right Hon. Mr Nash. It had been mentioned that any member could have gone along to the Committee, but the point of the member for Waitakere (Mr Mason) that he had not the faintest idea, when the Committee was meeting had been well taken.... NZPD, 27 June 1951, Vol 294, p. 12.The Committee of the Whole House debate on the Report of the Select Committee on Standing Orders, on 27 June 1951, shows clearly the extent of power conceded to the executive. Mr Holland was the dominant figure of the debate which was notable for the relative lack of interest from members. The record shows that only eleven members spoke and six other members asked questions or interjected. And this from a House of eighty members. After the introduction of the Report by the Chairman of Committees, Mr Harker, the first speaker was Hon Mr Mason, Labour. He repeated his complaint about the lack of consultation and lack of opportunity to make contributions. However, scrutiny of Hansard shows the alleged lack of opportunity for Members to contribute earlier was general, and did not solely apply to Opposition Members. Hansard states: Mr Mason...the Committee merited all the commendation the Prime Minister had given it for the work it had done, nevertheless every member should be entitled to more than the opportunity of merely glancing hurriedly through the draft Standing Orders, 66 The 67

Rt Hon. Sir Walter Nash, GCMG, CH, 1882-1968, Labour, Hutt, 1929-68. See "Memorandum by His Majesty's Government", Appendix to The Report of the Select Committee on the Procedure in the Public Business, The Procedure in the Public Business, HC 5(1), House of Commons, London, H.M.S.O. Tuesday, 18th September, 1945, p. 32-37. See also U.K. Hansard,Vol 413, No 11, column 985. 68 The Hon. Sir Clifton Webb, KCMG, QC, 1889-1962, National, Rodney 1943-54.

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which were of very great importance.... He had nothing whatever to say against what the Committee had done, but was simply insisting that it was eminently a matter to which every member should have an opportunity of making his contribution. In all his experience he had never known such an important and detailed matter to be sprung so suddenly on the House. Surely the draft could have been circulated earlier so that members could have had an opportunity of making themselves acquainted with the regulations. NZPD, 27 June 1951, Vol 294, p. 8. But strange contradictions are then apparent in Attorney-General Webb's statement: Hon Mr Webb...it had been suggested by the honourable member for Waitakere (Mr Mason) that sufficient time had not been granted. It would be realised that with the abolition of the Legislative Council a change in the Standing Orders was necessary. For that reason a Select Committee had been set up to go into the Standing Orders during the recess. Hon Mr Mason We were not notified. Hon Mr Webb... that that could easily have been done. Members could have listened to the discussions and followed the reasoning behind the amendments that had been recommended. The Opposition and the Government were ably represented.69 Mr Mason was no parliamentary tyro. He had been Attorney-General and Minister of Justice between 1935 and 1949 during the first Labour Government. The public record must surely show Mr Mason's personal inconsistency. A lawyer by profession, a teacher of law and an experienced politician, he had, as Attorney-General, been the chief legal officer to the previous Labour Government for fourteen years. Yet he left strange evidence of inconsistency in the written public record. When in the Opposition he seemed to make little attempt to use his experience in order to give a lead in stopping the Government from dominating the reform process. In more sophisticated parliaments, such a complaint would provoke either derision and mirth or wide comment in any similar debate. Certainly it would be remembered as ammunition for subsequent debate. But the incident provides an insight into Wellington's parliamentary conduct at that time. The Mason/ Webb exchange was a personal joust, masquerading as constitutional deliberation and debate, preparatory to abolishing an upper house. The House of Representatives has long since lost its power to balance adversarial politics with the need to respect procedures which are recognised as essential elsewhere. And although Mason complained about lack of notification of Standing Orders committee meetings, neither 69

Ibid.

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Select Committee On Standing Orders 1951

he nor anyone else, made any attempt to have stricter procedures written into the new Standing Orders to guard against such incidents in the future. Instead Webb commented on what Members might have done, and in doing so surely scored a point; Hon Mr Webb. Members who were not on the committee might well have gone along and listened to the deliberations.... Members could have listened to the discussions and followed the reasoning behind the amendments that had been recommended.70 Had Mr Mason and the Opposition pressed hard enough, the new Standing Orders might have been amended to include stricter notification and submission procedures. Such an approach is within the long established, collective ethic of Westminster and Ottawa; designed, as they are, to contain the executive by subjecting its actions and intentions to more rigorous examination. Andrew Shonfield calls this "making power visible" or in current parlance, transparency; one of the duties of elected representatives. He cites the effect of the United States Congressional committee system, which: ....forces the lobbyists and other interested parties out into the open. By this method, which marries ingeniously the inquest and the petition everyone, including the Congress, is made aware, before it is too late, of what the issues really are in any projected piece of legislation.71 Parliaments need a degree of flexibility placed in their procedures, together with human and physical resources, to have the powers Shonfield identifies. Flexibility, adequate resources and time for examination and reflection ensure that legislation can progress through its various stages in a responsible manner that has at least some relevance to those external to the institution and who will be affected by legislation under study. But a distillation of Hansard's record of the debate on the draft 1951 Standing Orders indicates Mr Mason was, despite his protests, conditioned to parliamentary mores that have, in the past, approved or at least failed to challenge the sort of behaviour of which he complained. These mores allowed Mr Holland to follow precedents laid down by his predecessors and exercise, figuratively as it were, a droit de seigneur over the New Zealand House, an alleged daughter of the Mother of Parliaments. Also, Mr Mason, a lawyer like Mr Webb, was used to an adversarial environment. And Wellington has no history of any debates about balancing the place of the Chamber of the House with its sense of theatre and public confrontation against the more private and measured process involved with a reformed, open committee system.

2.12. The Debate In The House: The Substance Of The Reforms ONE ISSUE that became contentious in the 1951 Standing Orders debate was that over the previously inbuilt power of "delay" over the progress of legislation. Mr Holland shows his hand.

70 NZPD, 71

26th June 1951, Vol 294, p. 11. Andrew Shonfield, Modern Capitalism, Oxford University Press, London, 1969. p. 389.

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Select Committee On Standing Orders 1951

The existence of the Legislative Council had normally provided some delay between the stages of legislation. Mr Mason suggested that with the Standing Orders now only applying to a single Chamber, there should be provision for some delay, particularly between the stages of bills. He expressed concern that less delay was now built in and that the Prime Minister now had the power of urgency he could use at will within the single Chamber. But "he did not want to seem to take a querulous attitude to what was being done."72Mr Mason also expressed a general doubt about the Standing Orders and about what he called a certain laxity, which had crept in during the 1939-45 War period. But that period was during his own term in office and his doubts did not seem deep enough to translate into making submissions to the examining committee. Debate centred on how much delay was necessary between the stages of bills and the power of the executive to use urgency. Mr Mason spoke at length on the subject. He obviously drew from his past experience of the delay previously imposed by the procedures of the Legislative Council. Back-bench surrender to the executive over the development of House procedures can be illustrated by one exchange in the House regarding delay on 27 June 1951. In response to Mr Mason's complaints regarding delay and urgency, Hansard records: Right Hon Mr Holland How much delay would the honourable member sugges Hon Mr Mason One day would be sufficie Hon Mr Oram The Committee stage could be taken on the same day as the second reading by the leave of theHouse.73 Mr Mason was only asking for the same delay existing under the Legislative Council, on those occasions when urgency was not invoked and delay would have been normal. Mr Oram was Speaker of the House. But Hansard records him as merely a member of the Committee of the Whole House, which was debating the report under the chairmanship of Mr Harker. He had apparently replaced his supposedly impartial Speaker's hat with a National Party supporter hat. For now Mr Oram was offering views on delay from the floor of the House, which were quite contrary to the views of the Report tabled on the previous day, and which stood under his signature as the Chairman of the Committee bringing down that Report. Mr Holland spoke last in the debate, saying, ..but now there was only one Chamber he was all in favour of the idea that more time taken between stages would be an advantage. The House was master of its own fate and could do as it liked, so the whole situation could be met by taking urgency to allow the thing to go through in one sitting. He would bear it in mind, and if it was desired that there should be a spell between the second reading and the Committee stage and to have a spell would suit the House and the Government -- he would try to give effect to it, but he would not commit himself on that in any way.74 In short, Mr Holland's Government could keep its options open over delay and urgency, acting as caprice and political desire took them on any given day. Study of the parliamentary record shows that the House has allowed successive governments to abuse their powers by lessening delay and by use of extraordinary urgency. A good example of prime ministerial and executive power over the House lies in Mr Holland's statement during this debate that "he thought that the honourable member would be the first to recognise that the person who happened to be Prime Minister and in charge of the House would have complete control of the situation." So were the options for delay between the various stages of legislation disposed of. Another example of executive domination in the same debate occurred when a new Standing Order, No 72 NZPD, 73 NZPD, 74

27 June 1951, Vol 294, p. 8. 27 June 1951, Vol 294, p. 8. Ibid., p. 9.

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Select Committee On Standing Orders 1951

398, was debated. This was to lay down important points of principle for the control of parliamentary buildings and how the Clerk of the House and the other officers of Parliament were to be paid. The full, relevant extract from the debate encapsulates some of the arguments in this thesis. The text of the proposed new Standing Order No 398 offered to the House was as follows: Subject to the right of the Government to control the expenditure with respect to the Legislative Department and the Estimates relating thereto, and to the provisions of any Act of Parliamen (a) the control and administration of the whole of the Parliamentary Grounds and the Buildings and any other erections thereon (excluding only the Council Chamber, the Executive Council room, and Ministerial suites and any extensions thereto which the Government, after consultation with Mr Speaker, deems necessary for the accommodation of its Ministers, their Under-Secretaries, and staffs) shall be vested in Mr Speaker on behalf of the House, whether the House be in session or otherwise: (b) the Clerk and the other Officers of the House shall be appointed by the Government on the recommendation of Mr Speaker, who shall have control of them, and the salaries, increments, bonuses, or other remunerations of the Clerk and the other Officers shall be fixed and determined by the Government.75 The previous system had been under the joint control of the two Speakers of the two Chambers. Now, Mr Holland's Government was usurping the jurisdiction of the remaining Speaker by bringing in this new Standing Order 398. To their credit, both Messrs Oram and Mason united in opposing this move. Mr Oram stated that the provision "recognised a change of power from Parliament to the Executive," and that it was The duty of Mr Speaker to protect the interests of the private member, even if necessary, against the Government, although he could not conceive of a case in which that would arise.....in the new Standing Order, the Parliament of New Zealand was breaking new ground in the transference of power from Parliament to the Executive.76Mr Mason pointed out that "at Canberra, even with some of the executive housed in parliament, total control lay with the Speaker". This situation also applied in Canada, South Africa, India and Ceylon.77But Mr Holland overrode these objections, saying, He had suggested that the House would like to know what views the Speaker held, because the Speaker was in the minority of one. The House had to face up to things as they were. It had always been the right of the Government to control things, because it was given the right to control expenditure.78 Mr Holland spoke in this fashion to the Speaker of the House without objection from any Member, which shows the degree of deference to executive power and a certain lack of respect for the Office of Speaker. Also, the right to "control expenditure" is different from the right to "determine allocation", which is decided in the annual estimate procedures related to the Appropriation Act. "Control" is meant to be a function of Parliament, aided by one of its principal officers, the Controller and Auditor-General. "Expenditure" includes expenditure on Parliament's buildings. But the New Zealand House has long since surrendered any direct control it might have had over such things as the construction and "any ex75 NZPD, 76 Ibid. 77 Ibid. 78

27 June 1951, Vol 294, p. 24.

Ibid., p. 25.

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Select Committee On Standing Orders 1951

tensions thereto" (to quote the Standing Order No 398) of its own buildings. The last time the House received, for its own detailed consideration, any related report on its own buildings came from a Joint Committee of the two Houses, in 1908.79Westminster, Ottawa and Canberra Parliaments have never surrendered this power. The British Report of a Joint study of the buildings at The Palace of Westminster, is a case in point.80Recently, in Canberra, a Joint Standing Select Committee of the Australian Parliament was an essential element in the control over the construction and contract proceedings when it built its new Parliament House.81 By comparison, Members of New Zealand's House surrendered their power to be directly involved in the planning, major modification and maintenance scheduling of their own buildings. Mr Holland simply imposed further restrictions on a former right of the whole House, with only Mr Mason supporting Mr Oram's dissent.

2.13. Acquiescence Or Apathy Of Members? THIS ANALYSIS has highlighted three important factors: the problem of The Members coming to heel.

delay between sections of bills and the use of urgency, the place of the Speaker in the institution, and the degree to which the House and its Members lost control over their own buildings and support staff. It is obvious that the Executive used the 1951 Standing Orders exercise to extend its powers and influence over Parliament. But any investigation into this process cannot be left simply to analysis of the actions of the Executive. The term "domination of the executive" has almost become a cliche in itself, almost guaranteeing acceptance of the fact that this domination stems from solely internalised causes from within that self-same Executive. Certainly, there is ample evidence of subrogation of power by the Executive. But conversely, inaction and default from the policy community, together with Members' at best acquiescence, at worst cognitive incapacity, must also be seen as causes of why the Executive is allowed, as it were, to assume domination. For instance, it can be shown that since the turn of the century, Members seem to have changed in their acceptance of party authority to a more uniformist, party loyal attitude in their voting record. Lipson studied voting splits in the House between 1892 and 1911 and noted the high rate of party splits in the voting pattern. He found splits as high as thirty per cent in committee divisions and nine per cent in House divisions over twenty years. The voting pattern demonstrated the degree of freedom possessed by members during that period. Not that the party whip was absent. Lipson observed that "By 1911 the party battle lines were grimly drawn; only 86 divisions were held, and the leaders tried to maintain all the discipline they could before the general election." Despite that, party splits averaged 25.5 per cent in the committees and 8.1 per cent in a House of seventy members.82 By contrast, the 1951 Review of Standing Orders of the New Zealand House of Representatives demonstrated little evidence of Members's desire to loosen or stray from Executive domination, even in some small way, as part of any collective will. They appeared unconcerned over moves by the Executive to encroach upon their authority

79

House of Representatives and Legislative Council. Joint Parliament Buildings Site Committee, I.14, Government Printer. 15 September, 1908. 80 Report by the Joint Select Committee of the House of Lords and the House of Commons appointed to enquire into the Accommodation in the Palace of Westminster, Session 1944-45, HC 677, H.M.S.O. 28 March 1945. 81 Joint Standing Committee on the New Parliament House, Report on the Precincts of the New Parliament House and the Parliamentary Zone, Parliamentary Paper No 395/1985, Canberra, Australian Government Publishing Service, November 1985. 82 Lipson, p. 342.

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Select Committee On Standing Orders 1951

and control over their own buildings and staff. The only focus of authority and attachment seemed that derived from much stronger party discipline than during the period studied by Lipson.

2.14. The 1951 Changes In Retrospect THIS DISCUSSION has ranged over aspects of how in 1951 the New Zealand A lack of concern for the internal process.

House of Representatives reviewed its Standing Orders. This Review had been largely necessary due to the abolition of the upper house, the Legislative Council. Standing Orders had not been reviewed for 22 years and might surely have been left unaltered but for the changes brought in by the move to unicameral government. Debate still surfaces about the merit of a second chamber and how it possibly could, in a reformed constitution, act as a better check on the Executive of the day. But there seems no evidence of any past examination of the administrative procedures of the Legislative Council in order to obtain a wider perspective of what was done away with, to see if the Council had qualities worth saving and transferring into the remaining Chamber's procedures. For examination does show that in some respects the Legislative Council did have a more highly developed administrative structure and a better approach to its core management select committees than did the House of Representatives. This is seen when the Standing Orders of the Council are studied. Admittedly these had been put together as far back as 1921, and may in practice have fallen into some degree of abeyance. But there is evidence to show that, in certain important respects, they were superior to those finally adopted for the House in the 1951 review exercise.83 Firstly, the various Standing Orders were set out in the published draft Manual submitted in 1921 for the Council's consideration in a manner quite unique when compared to other such, admittedly more modern, Commonwealth Manuals studied. Apart from the generous initial page devoted solely to "Interpretation", the degree to which practically every individual Standing Order is annotated is truly remarkable.84These annotations not only refer to relevant sections of certain New Zealand Statutes but also refer directly to the Manual of Standing Orders of many of the other Commonwealth Parliaments, as well as to the books of prominent constitutional authorities. Listed are the Manual page numbers or Standing Orders from the New Zealand House of Representatives, as well as the parliaments in the United Kingdom, Canada, South Africa and Australia and its States. References are also drawn from May and Bourinot. 85 One is tempted to ask where, in 1951, was the person, or persons, who were able to research and put together such a list of comparative annotations. Is it possible that when the Legislative Council was abolished such a body of knowledge was also put aside? Mr Holland, during the debate on the Standing Orders, had also referred to a new manual of interpretation being produced. As previously mentioned, Mr T.D.H. Hall, a past Clerk of the House, was preparing it, Mr Holland saying "If we have this Manual we may turn to Hall in the future, whereas today we turn to May".86 But research has failed to find any evidence of this manual, it possibly having gone the way of the old skills and body of knowledge in the abolished Legislative Council. The second important point to be drawn from perusal of the Standing Orders of the Legislative Council is that with these formal statements of how its Members were to manage their affairs there was always a continuing overview by Members given clearly defined responsibility in these various areas. To start with, Standing Order No 18 ordered that there should always be appointed,

83

Oliver Samuel, Chairman, Report of the Standing Orders Committee, Suggested Standing Orders of the Legislative Council, 18th October 1921, Laid on the Table on the 18th day of November, 1921, Council Paper No 1, 1921, pp. 56. 84 Ibid. 85 Bourinot, Sir J., Parliamentary Procedure and Practice in Canada, Dawson Brothers, Montreal, 1884. 86 NZPD, 27 June 1951, Vol 294, p. 7. Mr Hall was the author of several publications, but none was found to refer to parliamentary procedure.

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at the beginning of each Session [emphasis added], four select committees entrusted with essential management functions. There was a committee for reviewing the Standing Orders, a House Committee to do with entertainment of Members and their guests, the Library Committee and the Printing Committee. Importantly, this meant that, even if the duties of Members elected to these Council Committees were at times not onerous, there were always, and from the beginning of each Session, particular Members supplied with some minimum degree of level of staff and resources for this work. And Council Standing Order No. 18 clearly stated that these management Committees were to liaise with their House counterparts, under direction from the two Speakers. Two points arise from this. One is that the resultant Standing Orders from the 1951 exercise included no formal statement about these four important management committees. In the House they were to be convened only on an ad hoc basis, contrary to any idea of having a permanent management system run by selected Members. In fact, to this day, and unlike the Legislative Council, the Standing Orders of the House of Representatives do not mention the processes of review of those very same Standing Orders, in particular how a committee to review them shall be set up and conduct itself. And the convening and conduct of such a reforming committee is still very much executive dominated. This situation is due partly to the vagueness in its terms of reference as compared to the similar committee of the abolished Legislative Council. This allows the Government of the day to use this committee, at times, in an ad hoc manner. The other important point is that under the more formal set of rules of the Legislative Council, its Members were the ones to be more actively involved in their Council's management. But those laying down the Standing Orders of the House of Representatives have never entrusted its Members in such a manner. The Standing Orders Committee of the House of Representatives has always been dominated by its executive members. And there is sufficient evidence presented here to suggest that much blame should be laid at the feet of the Holland Government which failed to transfer certain vital procedures and administrative practice of the Legislative Council to the House of Representatives.

2.15. The Holland Administration In Action CONCOMITANT WITH the select committee reform of 1951 it is apposite to The National Party moves forward. note in brief some of the House procedures, new structures set up and used by the House of Representatives in 1952. This will provide some background to how the Holland Government actually went about its business, following this reform. Firstly, the new Standing Orders mentioned the automatic establishment of three select committees, for Lands, Local Bills and Bills. The last was empowered "to inquire into the character of every Bill".87These were to deliver Annual Reports, as did certain other committees eventually set-up during the Session such as the Committees for Public Petitions, Maori Affairs, Education and Defence. As mentioned, the Standing Orders did not institute any permanent select committee to review these. This is as at Westminster but Ottawa and the Canberra Senate have them permanently constituted. However, not having this Committee permanently constituted must be classed as a gap in administrative practice. Other Committees set up during the subsequent parliamentary session were Agricultural and Pastoral, a special committee for the Companies Bill, External Affairs, Goldfields and Mines, House (to provide for the comfort of Members), Industries and Commerce, Labour Bills, Library (to consider matters appertaining to the General Assembly Library), Maori Affairs, Privileges, Public Accounts, Public Health, Selection(Private Bills), Shipping and Seaman's Bill (for the Bill of that name) and Statutes Revision---"to consider all Bills of a legal technical nature". Seven of these committees did not submit a printed Annual Report to the House.88 87 See 88

Standing Order No. 206. These details on select committees were taken from Journals of the House of Representatives, 1952, pp. 404-409.

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Select Committee On Standing Orders 1951

The Statutes Revision Committee, in addition to its 1952 annual report, tabled a Supplementary Report. 89This latter report is noteworthy because it showed the Statutes Revision Committee's examination of the probity of the document, List of Returns or Statements. This had been tabled in the House since 1893 and was a check-list of the papers needed to be annually tabled in the House. The Committee was empowered to update or modify the document and examine the method of reporting. It noted the need for drastic updating due to past changes in various Acts and Resolutions; as well, the method by which departments reported to the House needed drastic improvement and in some standard form. One department had even made no Annual Report. But little action was taken; 1967 was the last year of its use. The Committee originally set up to investigate constitutional reform following upon the abolition of the Legislative Council also reported to the House.90 This Report was debated on 5 August 1952 and was vigorously defended by Government members, including Mr Algie, Minister of Education and Mr Bodkin, Minister of Internal Affairs. But Opposition (Labour) members expressed little interest, even trying to move the closure at times. However, the Report was approved by the House and referred to the Government for its consideration. 91And as Professor Jackson has implied, it is still there, under "consideration" or not. He says that as yet New Zealand has not made any formal declaration to be classed as having a unicameral legislature.92 The House also received sixteen "Legislative and Political" Reports, fifty-one "Miscellaneous" Reports being mainly reports of departments and statutory bodies and eighteen "Finance" reports.93These latter Reports included Public Accounts for the Financial Year 1951-52, The Report of the Controller and Auditor-General on the Public Accounts, the Estimates and Supplementary Estimates of Expenditure as well as the Government's Financial Statement and the Economic Survey of New Zealand, 1952. The first two and the last one were only tabled. The other three were used only in House debate, not one going to any select committee for public examination. All the financial procedures were carried out in Committees of the Whole House, convened into "Ways and Means" and "Supply" Committees. None of these reports contained any forecasts, economic or social. The Economic Survey spoke only in general terms and was not debated. It contained a statement of trends in government capital expenditure from the Ministry of Works. There was no select committee examination on the state of the economy.

2.16. The Case Of The 1952 Finance Bill ONE BILL put through at this time needs special mention as it clearly shows A serious fault in the procedure shows itself.

how the Holland Government was able to move ahead now free from the restrictions previously put on the House by the presence of the Legislative Council. Examination of the circumstances surrounding this bill also provides an insight into certain normal House practices and helps illustrate the very low degree of accountability demanded by the House of Representatives of Government legislation having important financial and economic implications. The Bill was the three-page 1952 Finance Bill, containing

89

See Report in Relation to Parliamentary Paper H-13: List of Returns or Statements Required by Law or Resolution to be Laid Before the House., AJHR, I-11A, 1952. 90 See Report of the Constitutional Reform Committee, AJHR, I-18, 1952. 91 NZPD, Vol 297, 5th August 1952, pp. 725-744. 92 See Footnote No 7. In 1852, New Zealand's Constitution was set as one having a bi-cameral legislature 93 The Legislative and Political reports had shoulder numbers including the letter "A", those of Finance the letter "B" and the Miscellaneous reports the letter "H". There were 11 select committee reports having the letter "I" in their shoulder numbers.

38


Select Committee On Standing Orders 1951 clauses relating to five very different subjects. Figure 2.1 is included to illustrate these.94 But of importance to this discussion was Clause 2 relating to the public financing and management of the Murapara Pulp and Paper Scheme. Mr Holland had previously given notice in the House that financing for this scheme had been arranged overseas but had not needed recourse to the rules of the International Monetary fund or the International Bank of Reconstruction.95This forest development scheme had initially been set in train by the previous Labour Government before leaving office in 1949. It involved the utilisation of exotic radiata pine plantations sited on Crown land in the central North Island. This was classed as the largest man-made forest in the world, covering 150,000 acres. It was the biggest development scheme since the development ventures of the 1870s, master-minded by the then Minister of Public Works, Hon. Julius Vogel. Its planning needed the combined skills of the private and public sectors working over several years with Treasury dealing with finance, the New Zealand Forest Service with the tree-stocking and subsequent management and the Ministry of Works with technical placement and regional infrastructure development. Mr Holland went into extreme detail to give credit for the experts called in to help in the planning of this, for New Zealand, huge enterprise. Among others, he made special mention of ...the Secretary of the Treasury, the head of Works Department and the head of the Forest Service, two prominent private industrialists Mr T.W. Perry, of Christchurch and Mr C.M. Richwhite of Auckland....They came forward most generously when they were called and they offered their assistance for the love of their country. They were not paid. They received no fees and I do not think they even got expenses.96 Mr Holland also mentioned experts from Britain, Canada and Sweden involved in the planning of this huge enterprise. Now while the National Cabinet, and its officials as mentioned above, must have been privy to documents spelling out the financial, social and economic implications of this scheme, the House received no background papers at all. 97

Figure 2.1. The Finance Bill, 1952

94 See Reprint of Sections of the Finance Act, 95 NZPD, 10 July 1952, Vol 297, p. 227. 96 NZPD, 16 October 1952, Vol 298, p. 1963. 97

No 57 of 23 October 1952 in Figure 2.1.

NZPD, 16 October, Vol 298, pp. 1961-1982. 21 October, pp. 2006-2009.

39


Select Committee On Standing Orders 1951

This huge scheme with its potential to influence New Zealand's economy significantly was disposed of largely in a Committee of the Whole House procedure over two days. No use was made of select com40


Select Committee On Standing Orders 1951

mittee hearings. The only information presented was contained in one clause of the Finance Bill. There was no White Paper providing information, at least to Members. There were no supplementary documents presenting forecasts of the impact on the region or on the wider economy and forestry industry. And Mr Holland used "urgency" to hurry and shorten the debate. During the second reading debate the Labour Opposition member Mr Mason brought to the attention of the House his view that the title of the Bill, namely Finance Bill was misleading. He said it was "indeterminate" and there should have been separate bills for each Clause. As Figure 2.1 shows, as well as dealing with the multi-million dollar Tasman Pulp and Paper scheme, the bill dealt with alterations to the handling of the National Development Loans Account and the National Savings Act 1940. There was also an exemption granted concerning certain land transactions of two Members of Parliament, Messrs Lake and Smith, under the terms of the Electoral Act 1927. Mr Mason suggested, quite correctly, that using the term "finance" on any bill enabled any Government, now or in the future, to use urgency and other provisions specific to a money bill. This would allow that Government to put through bills and virtually guarantee they receive minimal scrutiny on their way to become law. He said, 98 Mr Mason shows up the backsliders.

We have had that sort of thing since 1914, but Clause 3 could have been a separate Bill and Clause 4 could have been separate. Clause 4 amends the National Savings Act, and the proper course would have been to have a Bill amending that Act, instead of putting the provisions in a Finance Bill simply because a sum of money is altered....The Minister of Finance, of course can say that he is following thirty years' precedents, and that this Bill is better than some other things. Nevertheless, that is no way to do things, and we should have separate Bills amending separate Acts of Parliament.99 Mr Mason's prescient and accurate analysis made scant impact; little did he know that what was to occur in the House in later years would make what he complained about seem paltry. Thus the abolition of the Legislative Council produced a situation where there need be no delay even when important issues arose, despite Mr Holland's assurances. "Urgency" was now a tool that any Government could use, as Mr Holland had done in the financial debates of 1952. The requisite Standing Order No 45 now said that urgency could be taken if it "was in the public interest". In effect, all any Government now needed, in order to fast-track legislation, was to use its majority. As Hansard records, Mr Holland, in moving his urgency motion, soothingly explained, that ...the purpose of the motion was merely to give flexibility in the management of the business of the House, and that, if reasonable progress were made, it was not intended that the House should sit unduly long hours.100 98

Lake, H.R.(Hon. 1960). 1911-1967. National, Lyttelton 1951-1957, Fendalton 1960-1967. Smith, S.W. 1893-1981. National, Bay of Islands 1943-46, Hobson 1946-60. 99 NZPD, 21 October 1952, Vol 298, p. 2012. However, Hansard records no comment on Clause 5 concerning the lapsing of disqualification terms.

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Select Committee On Standing Orders 1951

This precedent is still of use to Prime Ministers of today.

2.17. Conclusion THIS CHAPTER started with two themes. One showed the link that Members Mr Holland leaves an example to follow. of the House of Representatives felt they had with Westminster. The other showed how, following the abolition of the Legislative Council, it was necessary to alter the Standing Orders of the remaining single chamber, not reviewed since 1929. A Standing Orders Committee was convened to produce new procedures for both public and local bills. It was an entirely internal exercise, there being no submissions from outside. It left no daily Journal of Record. However, it was noted that the executive used the occasion to further increase its influence over the House and Parliament. It was able to stake a claim over sections of the Precincts of Parliament previously the joint responsibility of the Speakers of the two Houses. Also, the use of urgency was made more easy for the executive, now that bills no longer had normally to pass through the Legislative Council. One is left with the impression that this Standing Orders exercise was only enacted due to the abolition of Legislative Council. The power of the Prime Minister was thus increased. Speaker Oram objected to aspects of the changes but no group of Members appeared to really be concerned at the main constitutional changes adding to the power of the executive.

100

NZPD, 21 October 1952, Vol 298, p. 2006. However, Hansard records no comment on Clause No. 5 of the Bill which concerned the lapsing of disqualification terms for the two Members.

42


Chapter 3. Report Of The Select Committee On Standing Orders, 1962 AFTER THE REVIEW of the Standing Orders in 1951 there were no A year of real promise.

substantial changes made to parliamentary procedures until 1962. These occurred under a National Government led by The Rt Hon. Keith Holyoake, elected in November 1960. National replaced a Labour-led Government, the majority changing from that of two for Labour to 12 for National, in a House of 80 Members. National's election policy statement said that, given power, they would convene a select committee to inquire into and improve the procedures of Parliament.1 The background to this review was notable for three important matters. One At last, a desire to sift through overseas procedures.

was the concern expressed over the need for improved financial and administrative management of government, as part of a trend world-wide; for the new Holyoake Government became the vehicle whereby New Zealand was introduced to certain overseas administrative practices. These included joining the International Monetary Fund, an item not mentioned in the pre-1960 Election Manifesto. Next, the 1962 review of Standing Orders made use, for the first time ever, of outside submissions from academic, public service and selected sources. Third, ideas from an outside Parliament, namely Westminster, were canvassed and were thought to have been introduced. Examination will show that this certainly was not the case. Also, the Office of Ombudsman was to be introduced. However, as will be shown, the Executive got off lightly, because no Scandanavian model was introduced despite being promised.

3.1. Pre-1960 Election Policy Statements THE CONSTITUTIONAL section of National's 1960 Election Policy National's new moral order.

Manifesto contained certain items of direct application to the workings of Parliament. Its Basic Policy said • [3.] A National Government will pass a Bill of Rights similar to that recently adopted by

1

1960 General Election Policy, New Zealand National Party, Wellington. 1960.

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Report Of The Select Committee On Standing Orders, 1962

the Canadian Parliament. • [4.] We will also consider the provision of a written Constitution for New Zealand. National Party 1960 Manifesto, p. 27A. Under "Full Details" the following were included, namely, Parliament. Particularly, a National Government will endeavour to devise procedures to avoid tedious repetition and long-drawn out debates while increasing the rights and responsibilities of private members in relation to public questions. We will propose to Parliament that the length of the Address-in Reply and Budget debates be curtailed and more occasion provided for the discussion on specific subjects in shorter speeches with greater opportunity for study and investigation by select committees. • [3.] The National Party believes the time is opportune for a review of Parliamentary procedures with a view to expediting the business of • [6.] A National Government will issue immediate instructions to all Departments of State to report on all legislation and regulations passed in the last twenty five years with a view to the removal of all unnecessary restrictions on the liberties of citizens. • [7.] A National Government will review the regulation making powers in Statutes to ensure that the power to make regulations is confined to the specific authority given in Statutes. • [8.] We will establish a select committee of Parliament to which all regulations will be referred for report whether any amendments should be made to protect the rights of the people. • [9.] Citizens Appeal Authority. The National Party believes that good Government in a democracy requires the co-operation of the people in accepting as fair and reasonable the decisions of the administration. To ensure that members of the public in dealing with Departments of State have the opportunity to obtain an independent review of administrative decisions, the National Party proposes to establish an appeal authority. Any person concerned in an administrative decision may have the decision reviewed. The procedure will be simple and provide for review to be by written application or in appropriate cases by hearing. To avoid frivolous appeals, a reasonable fee should be charged to be refunded at the discretion of the authority. The appeal authority will be an independent person or persons responsible not to Government but to Parliament. The authority will have access to Departmental files and the power to summon witnesses.2 If given power, the new National Government also promised to set up a new Monetary and Economic Commission. Its functions included giving advice on matters related to internal costs and price stability, finance for expanding primary and manufacturing industry, all related to full employment and higher living standards. Also, on page 4b, the Policy stated: 5. The Commission will also be responsible for preparing annually a long-term economic budget to provide a basic appreciation of the direction of the country's economy and some indication to Government and business of the long-term measures which should be taken to ensure the best development of the country's resources 6. Adequate opportunity will be given the public, both individually and through organisations, to make representations to the Commission, which will have the authority to publish its reports and recommendations.3 2 National 3

Party 1960 Manifesto, p. 27B. National Party 1960 Manifesto, p. 3B.

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Report Of The Select Committee On Standing Orders, 1962

Under Taxation and Finance it was stated that "In order to reduce taxation, and because posterity should carry a reasonable share of the cost of long-term development, capital development works will be financed in greater part from loan moneys". Further initiatives were planned in relation to the State Services, the Manifesto acknowledging "the important contribution of civil servants in meeting the challenge of the 1950's". On page 22a the Policy stated: 2. A National Government will appoint a Royal Commission to consider the changes that have taken place in the structure and functions of the civil service since the 1912 Royal Commission and to recommend such changes as it deems necessary and desirable to ensure that the public service is adequately staffed, trained and equipped to carry out its vastly more complex functions.4 The National Party promised a "hands on" regime if given power, and its prime stated object was: 2. To unite all men and women of good will who are unswervingly loyal to Her Majesty the Queen, who realise the immense political, financial, commercial and cultural advantages which accrue to New Zealand from close association with the other nations of the British Commonwealth and who desire to promote the political and economic unity of the Commonwealth.5However, despite this clarion call for unity behind this common cause, National was not averse to displaying its ideological and class biases. Included in their Manifesto was one page devoted solely to spelling out the differences between them and their political opponents, the Labour Party.6Also their page of "Aims and Principles" started thus: Since it was founded nearly 25 years ago the National Party has been the main bulwark in New Zealand against State Socialism and Communism. Throughout its existence the Party has affirmed that human progress and happiness--spiritual, moral and economic---can best be attained when the individual has the freedom to exercise initiative and self-reliance and enterprise, free from the restrictions of State dictatorship of Socialist government.7

3.2. The Speech From The Throne Bill of Rights, 1689 THIS WAS GIVEN at the opening of Parliament on 7th June 1961. This The Royal Message with its great hopes.

included certain items from National's 1960 Policy Statement, namely the promotion of legislation for a Bill of Rights, a Parliamentary Commissioner for Investigations (Ombudsman) and a Royal Commission "to inquire into the structure and function of the State Services". The Speech from the Throne laid em-

4

National Party 1960 Manifesto, p. 22A. Note that this section uses both the words "civil" and "public" in relation to the "service". 5 See "Objects" in National Party 1960 Manifesto, p. 1A. 6 See "Differences between National and Labour", National Party 1960 Manifesto, p. 1C. 7 See "Aims and Principles", National Party 1960 Manifesto, p. 1B.

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Report Of The Select Committee On Standing Orders, 1962

phasis upon certain items to do with economic matters normally of concern to Parliament. These were a proposed Committee to review the structure of the Public Accounts and the setting up of a Monetary and Economic Council. However, one important item mentioned was not stated in the pre-1960 election statements. The International Monetary Fund gets our attention at last.

National was to proceed with joining New Zealand to the International Monetary Fund. The Speech said that these economic and financial proposals were in part brought about by the Government's concern over the economic implications for New Zealand of the United Kingdom joining the European Economic Community, the resurgence of domestic inflation, the country's balanceof-payments problems, the higher prices for imports and the lower prices ruling for practically all export commodities.8 In examining institutional behaviour in such a period of economic uncertainty it is apposite to investigate the role of Parliament and its ability to control events. A former Clerk of Committees of the NZ House of Representatives has commented that a recent phenomenon ...has been the mounting volume of commentary from a wide range of The growth of executive power needing checking. interested parties on the inability of Parliament to counter the growth of executive power by retaining effective controls over the financial activities, more especially the spending, of central government. 9 Another comment arising out of a study of reforms of parliamentary accountability of this period said, An executive planning system that is not responsive to a wide range of A comment on growing power of executive elites and outside pressure groups.

information and opinion, but refers as a matter of political convenience only to executive elites or selected sources of approval outside central government, may find all forms of social and economic management, including expenditure planning, increasingly difficult. This appears to be the recent experience of the New Zealand Government. 10 The Royal Commission on The State Services in New Zealand said, ...the enormous growth of public business and the vastly increased pace of McCarthy speaks on the failures of parliamentary accountability. 8 NZPD, 9

21 June 1961, Vol 326, p. 12. A F von Tunzelmann, "The Public Expenditure Committee and Parliamentary Committee and Parliamentary Control of Public Expenditure", Victoria University of Wellington Law Review, No. 19, 43, Victoria University of Wellington. February 1979. p. 19. 10 J.E. Aitken, Public Expenditure Planning in New Zealand, Unpublished Ph.D. thesis, Victoria University of Wellington. 1977, p. 598-9.

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Report Of The Select Committee On Standing Orders, 1962

development have combined to deprive Parliament of the ability to exercise its traditional control of finance. The annual estimates themselves are both extensive and general. The consideration which the Public Accounts Committee and the House itself can give them is necessarily short and there are other urgent matters competing for attention. Yet, the Budget and Estimates have become more important than ever; first, because of their greater impact on the national economy, and, second, because a comparatively small amount voted for a particular project one year may virtually commit far larger amounts on that project in succeeding years.11 Concern had also been expressed by the Controller and Auditor-General in Pointed comparative comment on failures of the process.

his 1961 Annual Report to Parliament. Under "Parliamentary Review of Estimates" he described the work of New Zealand's Public Accounts Committee but said "In making adequate examination of expenditure the Committee is handicapped by the time factor, and more effective control would be achieved if its deliberations were reported to the House rather than the Government [emphasis added]". He described the working of the British House of Commons Select Committee on the Estimates saying that its establishment and growth of power showed that the British Parliament was prepared "to face up to the problem of ever increasing expenditure". He noted that within the operation of this Committee party politics was taking a less important role contrasted with working more in the interests of the taxpayer. He proffered this review "of the British system with the thought that a similar committee could with advantage function in New Zealand". 12 All this showed that there were pressures in 1962 from various sources urging reform of the process of parliamentary accountability. These came from changes in the international scene from the new financial and economic institutions. There was also pressure resulting from the changes affecting our trading relationships with Europe. And Parliament's Controller and Auditor-General had even researched overseas for new committee structures thought worth considering.

3.3. The Scene Is Set ON 22ND JUNE 1961 Prime Minister Holyoake moved that a select committee Mr Holyoake sets things in Motion.

be convened to review the Standing Orders of the House. He said that "the work of Parliament is becoming more and more involved" with more work of increasing complexity. Parliament was now more exposed to community opinion, particularly after 25 years of its being broadcast. There had been increased

11

Mr Justice McCarthy, Report of the Royal Commission of Inquiry,

The State Services in New Zealand, June 1962, Wellington, New Zealand, p. 64. This was subsequently described as "The McCarthy Commission". 12 A.D. Burns, Annual Report to Parliament by the Controller and Auditor-General, AJHR, B1(Pt II), 1961, Government Printer.

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Report Of The Select Committee On Standing Orders, 1962

criticism and "the query is raised as to whether our forms and procedures could be amended to enable us to devote more time to actual committee work....We might well consider a different apportionment of the time available". 13This theme was agreed upon both by the Deputy Prime Minister the Hon. J.R. Marshall and Members the Hon. H.G.R. Mason and Mr J.G. Edwards. Mr Marshall expressed the hope that the proposed reforms would "enable Members to do more useful work on committees, and perhaps enable Ministers to spend more time on administration".14Mr Mason felt that the time of the House was not well allocated and there needed to be improvements. Mr Edwards hoped that any new rules would allow select committees to sit in the recess as in the United States Congress. He said that this would help bring the process of inquiry more under the jurisdiction of the House as "at the present moment there seems to be a habit of setting up Commissions right, left and centre to inquire into this and that". And it was agreed that a Select Committee on Standing Orders be set up.15

3.4. The Report Appears THE STANDING ORDERS Committee Report was tabled in the House on 12 June The innovations appear.

1962 and debated in the Committee of the Whole House on 12, 13 and 21 June 1962. 16 This Report was notable for its new approaches around three main areas of parliamentary behaviour. First, steps were taken to improve parliamentary accountability in financial management. The Public Accounts Committee, established in 1871, was to be superseded by a new Public Expenditure Committee (PEC). The Standing Orders Committee admitted that the strangely named Public Accounts Committee was in reality an "Estimates" Committee. The Estimates are statements of intended government expenditure in the coming financial year. The "Public Accounts" are the collective statement of government expenditure for the past financial year. Usually, Public Accounts Committees at Westminster and Ottawa consider the consolidated account of government expenditure in the past financial year. One of the Public Accounts Committee's tasks had been to reconcile the actual expenditure with the original statement of policies, which usually accompany the Estimates. But the New Zealand Public Accounts Committee had reported only to the Government of the day. The Public Accounts Committee only talked to the Government!

In practice, the House had never been involved in the passing of these Reports to the long-standing Public Accounts Committee. The committee needed to be replaced by a select committee which could deal more rigorously with financial matters and would, at last, be directly accountable to the House. The Standing Orders report commented: For many years competent observers have expressed the view that the means employed by the New Zealand Parliament for the control of public expenditure are defective and, in particular, that the present Public Accounts Committee with its restricted order of reference is not an effective instrument for the exercise of that control.17

13 NZPD, 14 NZPD, 15 Ibid. 16

29 June 1961, Vol 326, p. 101. 29 June 1961, Vol 326, p. 102.

The Hon. R M Algie, Chairman, Report of the Select Committee on Standing Orders, 1962, I.17. A.J.H.R. pp. 23. Subsequently called the Standing Orders Report. 17 Standing Orders Report, p. 20.

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Report Of The Select Committee On Standing Orders, 1962

Second, the Report shows that several submissions were accepted. Outside submissions!

This was the first time that a Standing Orders report had spoken about public submissions. The submissions came from the School of Political Science and Public Administration, Victoria University; the Controller and Auditor-General and his deputy; the Harbours Association; and the Clerk of the House, Neil Dollimore.18Previous Standing Orders Committee reports may have heard public submissions, but these do not show in the public record. Nor is there any indication to show whether the public submissions were made because the Committee called for public submissions or whether the submitters took the initiative. Some submissions introduced concepts which arose out of academic analysis of Westminster House of Commons practice. Third, the Standing Orders Committee accepted that ideas from another Others have something to offer?

Parliament were worth study. The Committee directly entrusted the Clerk of the House, Mr Dollimore, to inquire into certain Westminster procedures. It is worth noting that it had been eighty-six years since a New Zealand Parliament's lower house had made a formal attempt to undertake a comparative study of another Parliament's practice, in relation to its Standing Orders.19

3.5. The Recommendations THE 1962 STANDING ORDERS Report, as presented to the House, ran to New Committees.

twenty-three pages compared to the four-page report, which was presented in 1951. The record of debate covered fifty-four pages compared to nineteen pages in 1951. Important changes were made to the select committees. There was some amalgamation of previous committee responsibilities in the new structure. The new Public Expenditure Committee superseded the Public Accounts Committee. Responsibilities for Education, Public Health, Social Security and War Pensions were amalgamated under the Select Committee on Social Services. The House and Library committees were involved in the inner parliamentary administration and reported to the House: the former dealt with entertainment and refreshment of members and their guests; the latter provided library, documentation and research facilities for members. In its report, the Standing Orders Committee did not give itself or the Committee on Privilege any permanent status. These two committees were to be convened, when needed, on an ad hoc basis. The recommended new select committees were:

18 Henry 19

(Neil) Dollimore, CBE, LL.B., Clerk of the House of Representatives 1946-71. F E Campbell, Clerk of the House, Report on conduct of parliamentary business in the State of Victoria, AJHR, Vol II, H1., 30 June 1876. Report commissioned by Speaker Sir Francis Dillon Bell but tabled by his successor William Fitzherbert. Report notable for asking for permanent Clerks for committees.

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Report Of The Select Committee On Standing Orders, 1962

Public Expenditure, which superseded Public Accounts Local Bills Maori Affairs Lands and Agriculture Industries and Commerce Labour Bills and Goldfields and Mines Social Services External Affairs and Defence Public Petitions Statutes Revision House Library 20

3.6. The Debate In The House THE HOUSE COMMENCED debate over the Report of the Standing Orders on The Titans clash.

12 June 1962. Like Mr Holland before him in 1951, Mr Holyoake, Prime Minister of the day, was dominant. His contributions to the debate take up approximately thirty per cent of the published proceedings. In a house of eighty members, eighteen made contributions, some only interjections, to the debate in the Committee of the Whole House.21 Mr Holyoake opened discussion in the same manner as had Mr Holland. From the parliamentary record, now written in the first person, there is no evidence of any awareness on Mr Holyoake's part that extant procedures ought to have been used. He merely addressed the Speaker in the Chair and made suggestions for the procedure he thought the House should follow: Sir, before you declare the House in Committee it might meet the convenience of members, since you were chairman of the committee, if it were agreed that you take the chair as though you were the Minister in charge of a bill or of estimates. I did not attend all the meetings of the committee, as I was out of the country for some of the time, and I do not know if any members were able to attend every meeting, but you yourself, Sir, followed the discussions right through.22The term "take the chair" in its Wellington context, means physically to occupy the Speaker's Chair in partnership with the chairman of committees. Mr Holyoake meant that Speaker Algie should do this after the House had gone into the Committee of the Whole House stage in order to debate this Report. Mr Algie had chaired the Standing Orders Committee and, as its

20 Standing 21

Orders Report, p. 17. The Rt Hon. Sir Keith Jacka Holyoake, KG, GCMG, CH, QSO, 1904-83, Reform, Motueka 1932-60, National, Pahiatua 1960-72, Prime Minister 1957, 1960-72. 22 NZPD, 12 June 1962, Vol 330, p. 24.

50


Report Of The Select Committee On Standing Orders, 1962 chairman, would be best suited to answer Members' queries if he were to remain in the House but on its floor.23 Mr Holyoake's occasional non-attendance also highlights a major fault of the operation of standing order reviews in New Zealand. New Zealand's House allows motions appointing Ministers, Chairmen of Committees and party whips to those committees which review the House's Standing Orders. Conflict of interest apart, this practice results also in busy Ministers and party officials not always being able to give the fullest attention to such an important task. The Standing Orders Committee comprised Prime Minister Keith Holyoake, Deputy Prime Minister Jack Marshall, National and Messrs Henry May, Labour, and Scott, National, both senior party Whips. Other members included Mr Speaker Algie, as Chairman, Mr Jack, Deputy Speaker and Chairman of Committees and Messrs Harker, Mason, Macfarlane, Nordmeyer and Skinner.24 On 1 December 1961, the House had also accepted a motion, which sought to delegate power to Mr Holyoake and Walter Nash, Leader of the Opposition, to nominate "alternate members during the absence overseas of other members." 25However, the two party leaders only needed to inform the Clerk of the House of any substitution, not the House formally. Consequently, no public record exists of any Minister or Member having been appointed temporarily to the Standing Orders Committee. In comparison, Westminster and Ottawa insist on more formality. Ottawa's Committees on procedural reform can see Members formally recorded as alternate committee members able to stand in when needed. Had a formal procedure been adopted at Wellington during the 1962 changes it might have proceeded along surer, less confusing lines. But New Zealand's House of Representatives fails to exert a high degree of formal control over its committees. Moreover, the House seems unconcerned that no daily Journal of proceedings is recorded and published by its select committees.

3.7. Holyoake's Role And Executive Dominance MR HOLYOAKE'S ROLE was curious. He was at once dominant yet at times Mr Holyoake takes charge.

seemed confused about the reporting committee's past activities. His absences, some overseas, might explain the occasions when he appeared to be out of touch with aspects of the Committee's report: As I intimated earlier, I was unable for one reason or another to attend some of the meetings. On one occasion I was in Australia for the ANZUS meeting. Perhaps I attended on fewer occasions than any other member. I tried to keep myself apprised of

23 The 24

Hon. Sir Ronald Algie, 1888-1978, National, Remuera 1943-66, Speaker 1961-66. Deputy Prime Minister the Rt Hon. Sir John Ross Marshall, GBE, CH, 1912-89, National, Mt Victoria 1946-54, Karori 1954-75, PM 1972 and the two Whips the Hon. William Scott, 1916-, National, Rodney, 1954-69, the Hon. Henry May, QSO, 1912-, Labour, Onslow 1954-75 and Hon. G Harker, OBE, 1899-1970, National, Waipawa/Hawkes Bay, 1940-63, Sir Roy Jack, 1914-77, National, Patea/Waimarino/ Rangitikei, 1954-77, the Hon. R Macfarlane CMG, National, Christchurch South, 1939-46, Christchurch Central, 1945-49, the Hon. Rex Mason, CMG, QSO, 1885-1975, Labour,Eden/Auckland Suburbs/Waitakere/New Lynn, 1926-66, Mr A Nordmeyer, Labour, the Hon. C F Skinner(MC 1943), 1900-1962, Motueka 1938-46, Buller 1946-62. 25 NZPD, 1 December 1961, Vol 326, p. 3971.

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Report Of The Select Committee On Standing Orders, 1962 what was going on and make my contribution.26 Mr Holyoake's utterances give insight into his approach to Westminster tradition, coupled with lack of attention to, or real knowledge of the proceedings. An excellent example of his disregard for, or ignorance of procedure, was evidenced by his reply to a question from Hon. A. Nordmeyer.27Mr Nordmeyer had queried the proposed changes in the ministerial procedure at question time. Holyoake responded thus: I want to draw attention to an apparent oversight by the committee, of which I am a member, [Emphasis added.] and must accept some share of the responsibility. In drafting the proposed amendments to Standing Orders we have taken great care to set out the functions and responsibilities of the Member asking the question.....However, we have not done what I think we should have done, and that is, make some reference to the obligations of a Minister in giving his reply. 28 Technically still in use, previous Standing Order 79 had placed an obligation on a Minister to be concise and not to inject controversial matter into a reply. But the reviewing committee had left out any qualifications related to ministerial replies. Mr Henry May, Chief Opposition Whip, raised similar concern. Speaker Algie agreed with Messrs Nordmeyer and May. Mr Algie, speaking from the floor of the House, said, Sir, I am impressed by what the Member for Island Bay (Mr Nordmeyer) says, but I am advised by expert advisors that all that we wish to do here is provided for in May, and that May is the law and custom of the constitution, and, of course, authoritative for us. I think that is a sound enough argument, but I much prefer littera legis; the law as written. I will have a good look at that. If it is correct that what we want is already stated in May, there can be no objections to putting it in our Standing Orders.29 But the Standing Orders Committee had been working on its Report for one year. Yet even now, some of its members, including the Chairman, who had supposedly been engaged in this joint labour with Mr Holyoake, were finding fault with their own drafting as well as forgetting details of the work entrusted to them by the House. The public record reflects no credit on the Speaker nor on the lack of care with which a New Zealand Prime Minister is allowed to conduct himself in the House. First, Mr Algie said he was impressed with Mr Nordmeyer's comment and quoted Erskine May as the authority. It remains unclear why the Standing Orders Committee had not been able to make use of Mr Algie's legal training, his knowledge of Erskine May and "the law and custom of the constitution." After all, Mr Algie had been the Professor of Constitutional Law and Political Science at Auckland University. The committee report should surely have continued the past provision to guide ministerial answers in advance of any debate in the House. And Mr Holyoake, the Prime Minister, had set the tone of the debate by expressing his opinion of Erskine May, pre-eminent British and Commonwealth jurist and constitutional authority. He said, "Sir, I am not very fond of May at all. He has written such lengthy tomes that take a lot of wading through".30But Mr Holyoake, having informed the House of his view of the correct approach required in the Antipodes towards such an authority as Erskine May, was still pre26 NZPD, 12 June 1962, Vol 330, p. 24. 27 The Hon. Sir Arnold Nordmeyer, KCMG, CMG, 1901-, 28 NZPD, 12 June 1962, Vol 330, p. 42. Emphasis added. 29 Ibid., p. 43. 30

Labour, Oamaru 1935-49, Brooklyn 51-54, Island Bay 1954-69.

Ibid.

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Report Of The Select Committee On Standing Orders, 1962 pared to concede Mr Nordmeyer's point. He continued: There should be no mistake about the obligation on the Minister replying. I must confess that I did not know that those words were not in the proposed Standing Order. Had anyone asked me, I would have said that there was an obligation on the Minister to answer, and to answer in brief and concise terms. I do think we must write that into the proposed Standing Order. Last Thursday I said that this afternoon and tomorrow afternoon were free for this discussion, and that I thought we might need them both. I said we might have to refer certain matters back to the committee. I have been reminded that there is now no committee; that it is disbanded once it makes its report. However, it requires only a motion to re-establish it, and I can see a number of things coming up that might well be referred back to the committee. The question of the prayer is again before us. This is a matter which I suppose the two leaders could discuss with Mr Speaker and bring it back to the House, but perhaps the tidy way to attend to it would be to reconstitute the committee.31 Obviously, Mr Holyoake had not felt any obligation to give the work of the Standing Orders Committee his full attention. Prime Ministerial duties at home and perambulations overseas had diverted his attention from reforming the rules of the House. His recorded concession of ignorance, namely that the Committee needed to be reconvened before it could reconsider flaws in its own work, indicates the low level of awareness of constitutional rules that even experienced New Zealand politicians can get away with. Ignorance notwithstanding, there also seems evidence of elitism. Mr Holyoake said, "This is a matter which I suppose the two leaders could discuss with Mr Speaker...".32And Mr Holyoake conceded that the Standing Orders Committee would need to be reconstituted. However, scrutiny of the debate indicates that intra- and inter-party relationships were of greater importance than balancing these with problems involved with formal adherence to constitutional rules. Resolving problems of procedural difficulties seemed not to have involved backbenchers. Reform was not a collective enterprise. The preference seemed to be to confer with those at the top of one's own party or even with those who were the leader-group in the Opposition. Executive dominance would have surely extended to restricting dialogue even with one's own party members. But when this turns into a cross-party interaction with "top people" the evidence shows the presence of an elite. Speaker Algie also provided evidence of elitism, when discussing the need to re-draft yet another clause in the Standing Orders Report: I fully concur with what has been said by the Prime Minister and the member for Waitakere, but I wonder if Members, in view of the complex task of drafting these rules, would have any objection to expressing agreement at this stage and then entrusting to those of us whom they choose the task of expressing that agreement in the technical language required. If we start redrafting a rule by a process of rapid amendment, we will create more difficulties than we solve, and I would appeal to Members to express their agreement at this stage with what is wanted, and then leave the drafting to those of us whom they would trust. 33

An expert few, not the re-convened select committee, would do the re-drafting.

31 Ibid. 32 Ibid. 33

Ibid., p. 71. Emphasis added in two places.

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Report Of The Select Committee On Standing Orders, 1962

And regarding yet another clause to do with the granting of leave, which needed re-drafting, Holyoake confirmed executive domination and elitism: We hear requests for leave ad nauseam and I have never heard of a request refused by the House. I have raised the matter so that Members can keep it in their minds when another matter comes up. We might not decide today; it might be left to just the two leaders to decide a certain question, but a recommendation by the leaders would be in time for final printing of the Standing Orders in about three weeks time.34 Effectively, rather than deferring to constitutional rules, a clique of senior politicians was to draft amendments to New Zealand's constitutional framework, behind the scenes, and in a time-frame which would force the House to use standing orders that it had not first formally approved. This would be done days after the Standing Orders Committee's Report was scheduled for approval in the House. In Wellington, Members appear to show no collective attachment to the values of their House. Erskine May's name is bandied about with either derision or obsequious obeisance to what is assumed happens under Westminster procedure. Also, they do not appear to study Westminster practice or, if they do, do not appear to fully understand the import of Westminster precedents. Further, there appears to be no opportunity for Wellington Members directly to study other parliaments in some detail rather than make perfunctory visits to and/or take short, guided tours. That the quality of visits to Westminster, or elsewhere, is lacking, is seen also, in inappropriate, selective quotation of isolated aspects of procedure. For instance, Mr Holyoake did show that he thought the Westminster House of Commons did not receive from its Members the attention and attendance that he thought the Wellington Members gave to theirs, particularly when it concerned the procedure of requesting leave from the House. Hansard: I do not know whether it is followed in other Parliaments. I cannot imagine that [leave] procedure being followed in the House of Commons. I remember being in the House of Commons for one hour and at no time were there more than 60 Members present out of a total of 640. I suppose there were some other Members in the precincts somewhere.35 But it can be shown that at Westminster, while the House is meeting, there are occasions when there are several separate "standing committees" handling legislation in venues other than the House and while the House is sitting on other business. So when Mr Holyoake visited he could mistakenly have thought that many Members were absent on leave. But this episode does show how Mr Holyoake was able to dominate the proceedings even while purveying inaccurate information.36 Proposed Standing Order 39A Allowing A Free-Ranging Debate DEBATE ON PROPOSED Standing Order 39A illustrates what can happen, when Confusion reigns.

committees do not publish daily Journals of Record. These would show what actually transpired, which Members did or did not appear and how they contributed. This particular debate also illustrates why 34 Ibid., p. 65. Emphasis added. 35 NZPD, 13 June 1962, Vol 330, 36

p. 64. For the role of "Standing Committees" of the House of Commons see J.A.G. Griffith, Michael Ryle and M.A.J. Wheeler-Booth, Parliament, Functions, Practice and Procedures, Sweet and Maxwell, London, 1989. pp. 270-277.

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Report Of The Select Committee On Standing Orders, 1962

there is a very good case for allowing back-bench Members to control the Standing Orders Committee. The Report of the Standing Orders Committee, tabled on 12 June 1962, contained a proposal for Standing Order 39A. It was first considered in the Committee of the Whole House debate, the first day of debate on the Report. Under certain circumstances, proposed Standing Order 39A provided for a fairly free-running, half-hour debate to be held on Tuesdays and Thursdays at 10pm. The proposed period was to be granted following a motion by a Minister; the question proposed would be open to debate and any matters could be discussed, with no Member being allowed to speak for more than five minutes.37 Prime Minister Holyoake opened discussion and provided more excuses for his non-attendance at Standing Orders Committee meetings. Again Mr Holyoake demonstrated ignorance of the committee's actual proceedings. The exchange is quoted in full: Rt Hon. Keith Holyoake Mr Chairman, I have to confess that I am in difficulty over this proposed Standing Order. I informed the committee earlier that I was unable to attend all the meetings of the Standing Orders Committee, and unfortunately the Deputy Prime Minister, who takes a very keen interest in Standing Orders and who was a member of the committee, is now overseas. Because of this, a misunderstanding has arisen, at least on the government side, and I must take members into my confidence concerning it. The proposed Standing Order we are now considering provides for an adjournment motion to be moved at 10 pm, or half an hour before the rising of the House, to enable a discussion to be held on general question Hon. F Hackett 38On Tuesdays and Thursdays only. Rt Hon. Keith Holyoake Yes. We have of course discussed this matter in our separate caucus meeting so that members of the committee in each party could report to their colleagues and come to a decision. I am afraid that because of a misunderstanding I misinformed my party on this question. My impression was that this proposed Standing Order would not apply during the address in Reply and Budget debates. Hon. H G R Mason That is the idea. Rt Hon. Keith Holyoake It is interesting that the member for Waitakere [Mr Mason] has exactly the same impression. Hon. F Hackett It is very plain. Rt Hon. Keith Holyoake Well, the member for Rodney (Mr Scott), who is in the chair this afternoon and so is not speaking, was not at a meeting of the committee because of his attendance at a meeting of the committee inquiring into the fishing industry, and did not know of this.39 At this point, it should be noted that Chairman Scott was also the Chief Government Whip. He, too, had 37 NZPD, 12 June 1962, Vol 330, p. 44. 38 The Hon. Fred Hackett, 1901-63, Labour, 39

Grey Lynn, 1943-63.

NZPD, 12 June 1962, Vol 330, p. 44.

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Report Of The Select Committee On Standing Orders, 1962 been on the Standing Orders Committee. Again, an observer can see how busy Members such as Mr Scott, both a whip and a government nominee on the board of a statutory body, will find difficulty in attending such a committee There is also the conflict-of-interest problem of having a chief party whip on a reforming committee with one of its duties being to set in place rules to make the executive more accountable. The problems of this situation are further compounded by Mr Scott's position as chairman of the debate discussing these rules. The next quotation from Mr Holyoake makes this point: Perhaps on reflection the member for Waitakere [Mr Mason] will remember that this matter was decided at the last meeting of the committee. I confess that I did not read the report carefully enough. It is a long report and I had a lot of work to do; and I gave the impression I had to my colleagues. As they understood it there would be no motions to adjourn the House during the whole debates on the Address in Reply and the Budget. I have not had an opportunity of conferring with them again, having discovered my mistake only before I came into the House today. I had a look through the minutes of the committee and found this in the minutes for the last day of the committee's sittings. This puts me in a bit of a difficulty. Apart from the member for Rodney [his Chief Whip] I have not discussed this matter with any other Member.40 This last exchange betrays the quality of Mr Holyoake's membership of the Standing Orders Committee. He was present at the Committee's last meeting yet he disowned its recommendations and report to the House, when the report was under discussion. He pleaded pressure of work but backtracked on firm committee recommendations. It is difficult to follow all the argumentation because no record of select committee proceedings was kept, despite his comment that he saw minutes on that occasion. The following interchange shows the detail of the changes being made as well as again illustrating Mr Holyoake's domination: * Rt Hon. Keith Holyoake Another reason why this should go back to the committee is that at present I have no authority from my party to say that we can agree to this and I should like to have an opportunity of talking to my members. During the Address in Reply and Budget Debates any member can discuss any question he [sic] 41wishes, and the question really is whether we should use those two half hours on Tuesday and Thursday when a member can raise some matter. I doubt whether the government party would be impressed. Various suggestions were made about the number of nights the adjournment motion should be allowed, and I am wondering whether we should have a compromise and not have such matters raised during those debates, or whether there should be one night each week when the House can discuss any

40 NZPD, 41

12 June 1962, Vol 330, p. 44. The House contained four women Members: the Hon. Mabel Howard, 1895-1972, Labour, Sydenham, 1943-69; the Mrs Ethel McMillan, QSO, 1904- , Labour, Dunedin North, 1953-75; Mrs I. M. Ratana, OBE. 1971, 1905-81, Western Maori 1949-69; and Mrs EsmĂŠ Tombleson, QSO, 1917- , National, Gisborne, 1960-72.

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Report Of The Select Committee On Standing Orders, 1962 question raised on the adjournment.42 Hon. M Moohan Any discussion is severely limited. During a half hour debate or an hour debate members had time to discuss all sorts of questions. Now that time has been cut to half an hour [for each Member] for the Budget debate and only twenty minutes for the Address in Reply [debate].

Mr Holyoake mentioned the need for an opportunity to talk to the members of his Caucus. This might be seen as an unnecessary intrusion of party business into the House's arrangements. But it is included as showing the reality of politics in action. He was obviously moving towards re-convening the Standing Orders Committee. But before the Committee met, he and Chief Whip Scott, would surely have had time to instruct party members of the re-convened Standing Orders Committee, after Mr Scott's return from fishing industry business. Mr Moohan's query demonstrates the crucial time factor. Mr Holyoake talked of compromise, but this was present in the committee already. Members' speaking times had been reduced in the Address in Reply and Budget debates. The Standing Orders Committee had decided Members could have two extra half-hour periods at the end of proceedings on Tuesdays and Thursdays to offset other reductions in speaking time. But Mr Holyoake and Chief Whip Scott wanted members to have even less opportunity for free discussion: Rt Hon. Keith Holyoake I am in great difficulty over this matter, but any member would have the right to debate any question during that half hour, which is a very great advantage and one which is desired. As I said earlier, during the Address in Reply debate and during the Budget debate members can talk to any question, although of course the member concerned might have spoken in the debate and would not get another opportunity if we did not provide for questions to be raised during those debate Mr May The Prime Minister is not taking into consideration the point that when it was decided [by the Committee] to have the half hour sessions at night one of the reasons was that the replies by a Minister to some questions might not be satisfactory to the member concerned. Rt Hon. Keith Holyoake Yes, that is stated in the report as one of the reasons, but there are many other reasons. If a member is not satisfied with the reply given by a Minister he can ask another question. 42

NZPD, 12 June 1962, Vol 330, p. 44.

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Report Of The Select Committee On Standing Orders, 1962

Hon. W A Fox That lies within the Speaker's jurisdiction. Rt Hon. Keith Holyoake It must not be exactly the same question, but the member can ask another question on the same day which must be answered within 48 hours. I must confess that I have not consulted any member of my party on this except the Member for Rodney [his Senior Whip, now in the chair]. I interpreted the words that the motion for the adjournment could not be moved on the night on which the motion for the Address in Reply is moved and seconded and on the night when the Financial Statement is read as meaning the debates on both those matters. I should like a little time to consult with my members.43 The 12 June 1962 debate on the Report continued until the end of the afternoon sitting. It was then resolved to reconvene the Standing Orders Committee. The interchanges between Members illustrate the approach of both government and opposition, as the following extract demonstrates: Hon. F Hackett If you agree to re-constitute the committee most of our members would agree to that. Rt Hon. Keith Holyoake If members of the committee are free tomorrow, then I would be free also. Hon. M Moohan It is a little like the "steady does it" policy; it never finishes anywhere.44 Rt Hon. Keith Holyoake Well, I think it is the steadiest way. Hon. R M Algie You could add there is a vacancy on the committee. Rt Hon. Keith Holyoake Yes, there is a vacancy, and also two members from this side of the House are away. For myself, I would be content to leave the committee as it is without replacing them, even if the Opposition wanted its replacements and we did not. The committee has been unanimous up to date, and I am sure it will work well, whoever is in the majority or minority. If that meets the wishes of the Committee [of the Whole House], I shall move accordingly.45 43 NZPD, 44

12 June 1962, Vol, 330 p. 46. Mr Holyoake often used this phrase "Steady does it." For instance see NZPD, 20 June 1962, Vol 330, p. 304.

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Report Of The Select Committee On Standing Orders, 1962

This debate ended on 12 June 1962 at the end of afternoon business. The following day, 13 June, at the beginning of afternoon business, a Supplementary Report of the Standing Orders Committee was tabled by fellow lawyer, Deputy Speaker and Chairman of Committees, the Hon. Roy Jack, on behalf of Committee Chairman Algie.46 The Report had reconsidered certain items, including the proposed Standing Order 39A, which the reconvened Standing Orders Committee had altered. Astonishingly, although the original Report had provided for any Minister to propose the half hour debate at the end of certain days, the amended report made it the duty of the Prime Minister. Bearing in mind that Mr Holyoake was a member of the committee, one can only assume that he wanted this power from the beginning, but that his inattention and/or low attendance record had prevented his having it written into the original report. The public record shows that, when the amended motion on proposed Standing Order 39A was produced for debate by the reconvened Standing Orders Committee, Mr Holyoake immediately tabled an amendment to proposed Standing Order 39A. Yet, with Mr Holyoake as a member, the committee had been convened twice, with ample time to develop a final version. So the House witnessed the Prime Minister bringing in yet another amendment and arguing a case which could have been previously resolved in the re-convened select committee. Again, Mr Holyoake's statements reflect poorly on him or at least on the process as accepted by Members, I had not fully appreciated until it was pointed out to me that, under the present proposal, the proposed procedure would be ruled out when urgency was taken for estimates, which is usually on a Tuesday, so that under the present proposal there would be a number of Tuesdays, and some Thursdays, when this procedure would not be available.47 Mr Holyoake then moved his amendment. This had the effect of reducing opportunities for Members to ask questions, which provoked objections from Opposition Leader Walter Nash, and Opposition member Hon. Fred Hackett. Mr Nash said his party members had agreed to certain amendments in the committee, which were in the Report subsequently tabled in the House. He said that Britain had an adjournment debate every night. These occasions were to compensate for the fact that Members would no longer be able to debate answers to questions. The Hon. John McAlpine interjected that the House of Commons did not even debate the Budget.48Mr Holyoake then rationalised the reasons for his amendment. He said "It was my understanding and that of others, including the member for Waitakere, [Mr Mason] that what I am now moving is what the committee intended to recommend."49 Mr Nash pointed out that the Prime Minister was a party to the original Report yet he now wanted to cut nearly in half the opportunities for Members to speak for five minutes. Mr Nash did not think this was in line with the proposals of the committee and thought the Prime Minister was being unfair. Chairman Algie then supported the Prime Minister with an inelegant rationalisation of his own: Sir, I do not like to hear the Prime Minister described as doing something that is unfair. I think a better word might have been selected. Nor do I like to hear the Prime Minister described as taking away something, when in point of fact we are giving something to the individual Member. We are certainly taking something away from the report which we originally presented to Parliament, but in that report we were giving something to the individual Member. In this particular case I can use that old phrase, 45 NZPD, 12 June 1962, Vol 330, p. 50. 46 The Hon. Sir Roy Jack, 1914-77, National, Patea 1954-63, Waimarino 1964-72, Rangitikei 47 NZPD, 13 June 1962, Vol 330, p. 77. 48 The Hon. Sir John McAlpine, KCMG, CMG, 1906-84, National, Selwyn, 1946-66. 49

NZPD, 13 June 1962, Vol 330, p. 77.

59

1972-77, Speaker 1967-72.


Report Of The Select Committee On Standing Orders, 1962

'Second thoughts are best." I have had some second thoughts on this matter. I think I am entitled to have them, and to state them. If they are good, I ought not to be ashamed of having them.50 Then the Senior Government Whip Mr Scott, also took exception to the Opposition Leader Nash's quoted remarks, interjecting his own remarkable imbalance to the debate: He [Nash] seemed to imply that all along the committee had agreed to a certain procedure, and today we changed our minds. That is not correct. I have been on the committee the whole time, and I was on the sub-committee. I missed the last meeting of the committee when this report was finalised. I always thought, and I believe it was the intention of the committee, that we would exclude the Address in Reply and the Budget debates from this provision.....this matter came into the report at the final meeting of the committee and I accept responsibility for not knowing about it. As soon as I read it, I knew that this was a proposal to which I had not at any stage agreed and one with which I would have disagreed violently in the committee. Had I raised objection at that stage, this report would never have come down in the way it did.51 Mr Scott prevaricated, as well as surely confusing any researcher, who might attempt to examine the public record of this debate. First, he mentioned a sub-committee. The record, such as it is, makes no mention of any sub-committee. There is no mention of establishing or convening such a committee, nor is there any mention or record of its terms of reference or allusion to it by any other member. Mr Scott's reference to a hitherto unknown sub-committee raises the question of whether there was a subcommittee, or whether reference to it was an uncustomary typographical error by Hansard. Unfortunately, once again, the lack of a daily committee Journal of Record prevents clarification of this matter. Finally, Mr Holyoake moved to close down discussion over the proposed new Standing Order No 39A, but left hard evidence of his own confusion for the public record. He left evidence also of his determination to press this new point of his, regardless of what he had said for the record on previous occasions. He said, There was, I repeat, a quite genuine misunderstanding, and as I told the Committee [one assumes, of the Whole House] yesterday, my understanding was that the Standing Orders were to provide what I am now proposing in this amendment. I so informed my caucus, and the member for Rodney [Chief Government Whip Scott] and the member for Hawkes Bay [Mr Harker] have supported this view. They also thought that what I am proposing now was what the committee meant .....the Member for Waitakere [Mr Mason] said he was under the same misapprehension as I was. I am not blaming the staff. I have no doubt whatever that the records they took and the report which came forward represented the opinion of the chairman of the committee [Speaker Algie]. The chairman had no doubts, but, thinking it over, he said he had second thoughts; and other members of the committee---perhaps a majority of them---believed that what my amendment now proposes is what the committee intended.52

50 NZPD, 13 June 51 Ibid., p. 81. 52

1962, Vol 330, p. 79.

NZPD, 13 June 1962, Vol 330, p. 82.

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Report Of The Select Committee On Standing Orders, 1962

This produced a lengthy objection by Opposition Leader Nash who said, Sir, I am very concerned about this because five positive statements were made by some of the most able members of this House. Now we have someone, only Mr Algie, the Speaker, [Emphasis added.] saying he has second thoughts. Some of our most able members met and drafted a proposal which was considered by all members [of the Standing Orders Committee] and was agreed to, inferentially, [Emphasis added.] by those members...53 But it was left to a government member of the Standing Orders Committee to disprove much that had been said by Members such as Prime Minister Holyoake, Speaker Algie, and Deputy Speaker, Committee Chairman and chief Government Whip Scott, about the need to retreat from important and already decided parts of proposed Standing Order No 39A. In a coup de [dis] grace, Mr Harker implied that the three Members were either liars or fools. He said, Sir, at the last sitting of the committee before the report was tabled, the Prime Minister gave a summing up of the position concerning the half-hour adjournment. He said: "This will mean that the first time this procedure will come into operation will be after the Budget debate because it will not be used during the Address in Reply debate and the Budget debate." I interposed to ask: "What about the period between the Address in Reply debate and the Budget debate?" and the Prime Minister replied: "Oh, I overlooked that. Of course it would operate during that period." No dissent was expressed and the matter was left at that. I thought that was the arrangement and my feeling was that was the generally accepted opinion of the members of the committee. If that is not so, then it is a complete surprise to me. I was there when the Prime Minister accepted my suggestion about the adjournment procedure applying to the period in between, and no exception was taken. The Prime Minister, other members and I, assumed that this was what the committee really intended.54

3.8. Conclusion THIS CHAPTER has covered the process of change to the Standing Orders of Still rather a closed process.

the House of Representatives under the then Holyoake administration. This saw a significant step forward in parliamentary accountability with the setting up of the new Select Committee on Public Expenditure which was to now receive from the House the departmental estimates, examine them and then report back to the House. Previously the estimates linkage had only been between the Public Accounts

53 Ibid., 54

Emphasis added. Ibid., p. 83.

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Report Of The Select Committee On Standing Orders, 1962 Committee and the Government. The Holyoake administration had responded well to community pressures to reform the House procedures. The call had been exceptionally strong for improvements in the field of financial management. Commentary on this situation came from persons such as Aitken and Tunzelmann, as well as the McCarthy Commission and overseas agencies. It is for this reason that the next chapter will be devoted to certain aspects of the important substantive administrative change initiated during the 1962 period. However, the reform process was not opened up to the community in the manner prevalent overseas. This is surprising as this Standing Orders Committee made, for the first time in New Zealand, a worthwhile attempt to research overseas practices and procedure. But the process of change in Parliament remained very much under the control of the executive. Prime Minister Holyoake was very much a dominant figure, with a significant influence upon the conduct of the reform process. These tendencies made the 1962 Standing Orders Committee exercise very much an in-House affair. This approach, in turn, inhibited the rate at which new ideas could come forward and reduced the openness and probity of the parliamentary reform process.

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Chapter 4. Administrative Changes Related To The 1962 Exercise 4.1. The New Select Committee On Public Expenditure THE INTRODUCTION of the new Select Committee on Public Expenditure was the New hopes for improved accountability.

most important change brought in by the 1962 Report of the Standing Orders Committee. Its genesis reflected the political climate of the time that demanded that Parliament act more responsibly and effectively in controlling government expenditure. The mood of the time could also explain why the Standing Orders Committee was prepared, for the first time ever in the history of the New Zealand Parliament, to receive advice and research about various outside sources on the subject of financial procedures.1 The Standing Orders Committee Report included the most important statement made to date by any parliamentary source on the very important subject of expenditure control systems operated in Parliament. The Report criticised the previous Committee of Supply procedure in vogue since 1871 and the only method ever used for examining items of government expenditure. This examination was conducted in the Committee of the Whole House, which was presided over by the Chairman of Committees. Ineffective for expenditure control, it had become, mainly, a critic of administrative policy, while still voting supply for the Crown.2 The Report noted that British financial management procedure used two select committees: an Estimates Committee and a Public Accounts Committee. The Estimates Committee then had forty-three members and was well resourced.3It had at least five sub-committees and was analogous to the strangely misnamed New Zealand Public Accounts Committee which dealt only with the estimates of public expenditure. But the British Estimates Committee was much more effective. Its terms of reference made it a clear servant of the House not of Government as in New Zealand. Further, the British Estimates Committee had to report to the House of Commons with a clear, daily Journal of Record, like all their committees. In turn, the British Public Accounts Committee had fifteen members and worked in close collaboration with the Comptroller and Auditor-General, in his capacity as a Parliamentary Officer and as its adviser. The British Public Accounts Committee examined the public accounts, which showed the departmental public expenditure and such related accounts laid before Parliament as the committee saw fit. Arguably, the Public Accounts Committee "has proved to be perhaps the most powerful and useful of all the Select Committees of the House of Commons and has established a great reputation" since its genesis in 1861.4 Public Accounts Committee(PAC), UKBut the Standing Orders Report made a very strange recommendation, that this 1 Standing Orders 2 Ibid., p. 20. 3

Report, pp, 20-22.

See Ann Robinson, Parliament and Public Spending, The Expenditure Committee of the House of Commons, 1970-76., Heinemann Educational Books, London. 1978. 4 Ibid. See Professor Gordon Reid's comment in Chapter II, Footnote No 48.

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Administrative Changes Related To The 1962 Exercise Losing their way?

new select committee should combine the functions of these two British select committees. The members of the Standing Orders Committee argued that the proposed new Public Expenditure Committee's terms of reference would combine the functions of the two committees from Westminster, namely, the Estimates Committee and the Public Accounts Committee.5During the parliamentary session it would function like the British Estimates Committee. However, during the parliamentary recesses this chameleon committee would then be expected to somehow change its stance and act as if it were the British Public Accounts Committee with the Controller and Auditor-General its expert adviser. For, Wellington's Standing Orders Committee was apparently misinformed about Westminster practice, and said: ...It is felt that the functions of the British Public Accounts and Estimates Committees could satisfactorily be combined in the one Committee which it is Who led them up this road?

suggested might be set up and called the Public Expenditure Committee. This is in line with a re-commendation made by the 1945-46 House of Commons Select Committee on Standing Orders.6 The statement was demonstrably incorrect. Westminster does not function in this fashion, and never has. According to Mr N.P.Walker of the House of Commons, Westminster, The statement on page 21 of the House of Representatives Standing Orders Committee 1962 Report is inaccurate, in that it should refer to a recommendation made by the 1945-46 Select Committee on Procedure in its Third Report, House of Commons Paper No 189-I of Session 1945-46. I enclose a copy of the relevant pages of the report for your information. Although certain recommendations made by the Committee in the report were agreed to on 4 November 1947, the proposed amalgamation of the Committee of Public Accounts and the Estimates Committee was not among them.7 Furthermore, combining these two functions is contrary to any generally accepted auditing practice, which requires separation between those directing and funding the process and those auditing it, i.e. the rule of natural justice nemo iudex in re sua (one should not be a judge in one's own cause applies). Yet, the proposal was that the executive judge its own cause by auditing its own operations during the parliamentary recess, and by using a committee dominated by that executive. Normal administrative need for separation of powers would suggest a separate committee for audit only, chaired by an Opposition member, as at Westminster and Ottawa for over 120 years. But in 1962 Wellington lost the opportunity to copy this structure.

4.2. The Submissions And The Reform Of Fin-

5 Standing 6 Ibid. 7

Orders Report, p. 21.

Personal communication from N P Walker, Assistant Clerk, Journals Office, House of Commons, London, 25 June 1951.

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Administrative Changes Related To The 1962 Exercise

ancial Procedures THE SUBMISSIONS made to the Standing Orders Committee were not published The outside advice flexes its muscle.

as part of an Appendix of the Report. Of course, the examination of witnesses submitting evidence, if conducted, was neither recorded and printed. Luckily, certain of the evidence possibly submitted was found in the National Archives records of the proceedings of the 1962 Standing Orders Committee. Only two submissions were found made regarding the role of the proposed new committee structure. These were from academics from Victoria University of Wellington and the Clerk of the House, Mr H.N. Dollimore.8 The Report also states that a submission was received from the then Lack of care for the process.

Controller and Auditor-General, Mr Archibald Burns. But neither the National Archives nor the Audit Office can produce any copy of this submission. National Archives has not been supplied with a copy either from the Parliamentary documents or one included in any Audit Office file for that period. Also, the Audit Office has confirmed that these files were destroyed.9 Part II of the submission from Victoria University was written by Mr R J Worthwhile research.

Harrison, Senior Lecturer from Victoria University. It runs to seven pages. He presented an appreciation of certain Westminster select committee structures of that time and drew from two eminent British commentators of the parliamentary accountability scene. Some detail was given of the strengths and tradition of the Commons' Estimates and Public Accounts Committees. Harrison clearly noted the very different roles of these two important select committees. As the Report has stated, one was for studying the Estimates of Expenditure, the other for the post-operational stage involving the completed Accounts. Of the Estimates Committee he said this "has always been regarded as far less satisfactory than the House of Commons Public Accounts Committee....Expenditure is determined mainly by policy, and policy is beyond the terms of reference of the(Estimates) committee".10 He mentioned other difficulties such as the amount of work needing specialist staff for committees and the need for the Estimates committee to move away from depending upon the advice for servicing by staff from The Treasury, namely: The appointment of a special officer of the House, an Examiner of Estimates, has been 8

Submissions from the School of Political Science and Public Administration, Victoria University of Wellington. Part I (written by Dr A. D. Robinson) and Part II (written by R. J. Harrison) and endorsed by R. H. Brookes, Professor in charge; J. L. Roberts, Senior Lecturer; R. J. Harrison, Senior Lecturer; A. D. Robinson, Lecturer; W. E. Murphy, Lecturer; and R. Price, Junior Lecturer. pp. 14. In National Achives Document ref. LE 1/1962/10 9 Mr D. L. Ormsby, Assistant Controller and Auditor-General verified on 6 January 1992, that the relevant Audit Office files of that period were destroyed. However, Section 15 of the Archives Act 1957 states that prior permission of the Chief Archivist must be obtained before public records are destroyed. During this research it was found that many past Parliamentary Papers and Records had not been kept in good condition. Papers from the first Parliament in 1854 up to 1952 were transferred to the National Archives. A five page Report, Introduction to Legislative Department Series Lists [Le], National Archives, spoke of serious water and rodent damage, as well as many papers and select committee records missing. It noted that the worst damage occurred during the time of the 1893-1906 Liberal and the 1935-49 Labour governments, both noted for their advanced social welfare legislation. See letter Eamonn Bolger, Archivist. 4 November 1991. 10 Victoria University(VUW) submission, p. 11.

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suggested in Britain, but unless such an officer were given a large staff he [sic] would be much less successful than is the Comptroller and Auditor-General working with the Public Accounts Committee of the House of Commons. The present position in Britain is that the Estimates Committee operates with the advice and assistance of a Treasury Officer. To some extent this arrangement has the effect of reinforcing Treasury control through the Committee's support of Treasury when there is some dispute with a department over a Treasury ruling. But apart from this, there is obviously only limited utility in the committee's working through the Estimates under the guidance of an official from a department which has already agreed to them.11 Harrison was more commendatory of the work of the Commons Public Accounts Committee saying "its work suggests the line along which New Zealand procedure might be improved". Its composition reflects the voting strength of parties in the House "though its traditions, even in voting, are non-partisan. Also by convention, the Chairman is a member of the Opposition, usually the Financial Secretary to the Treasury in the previous government". He also noted that the Committee worked "in very close collaboration with, and with the advice and assistance of, the Comptroller and AuditorGeneral and his subordinates, as well as with Treasury Officers....There is ample testimony to the success of this committee". He said that "Paul Einzig, probably the most severe critic of present financial procedure in the British House" said that "in certain directions, such as the scrutiny of the audited accounts by the Public Accounts Committee, Parliamentary control is indeed very effective". 12 Harrison elicited further evidence about the efficacy of this Commons audit function from a past Comptroller and Auditor-General, namely The mere fact that the Committee exists, and that the Comptroller and Auditor-General can invoke its assistance, fortifies the Accounting Officers(of Departments) against temptation to stray from the path of economy or of financial regularity; further, it enables the Comptroller and Auditor-General to dispose at once, and in his stride, of many matters of which Parliament never hears. Without the Public Accounts Committee I would be quite ineffective, or more ineffective than I am now.13 Harrison's recommendations began, "Evidently a committee performing the same function for the House of Representatives would be an important addition to the New Zealand Parliamentary control of public expenditure". But he has just discussed two committees of the Commons, the Estimates and Public Accounts Committees. However, as he continues it becomes clear that he wishes to put in place a committee similar to the Public Accounts Committee of the Commons, and serviced by the New Zealand Controller and Auditor-General. But then he goes on to say, Its secondary function would be the consideration of the Estimates with the assistance of Treasury officials and possibly an Officer of the House specially appointed as Examiner of Estimates...The Committee should be chaired by a member of the Opposition. One alternative suggestion with considerable merit is that consideration of the Estimates might be improved by dividing them among a number of small committees, of say, three members each, two from the Opposition and one from the Government, making separate reports to the House. It may be noted that the relationship in which the government stands to the House for consideration of the Estimates is rather different from its usual position. Ordinarily it is leading Parliament in the business of legislating, the Opposition criticising but not obstructing. When the estimates are being considered the House is exercising its watch-dog function rather than its critical, debating function and the lines are more 11 Victoria University(VUW) submission, pp. 11-12. 12 VUW submission, p. 12. See P. Einzig, The Control 13

of the Purse, Secker and Warburg, London. 1959. p. 21. VUW submission, p. 12. From Sir Ivor Jennings, it Parliament, 2nd, ed. Cambridge University Press, London. 1957. p. 310.

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Administrative Changes Related To The 1962 Exercise

strongly drawn from the constitutional point of view between Government and Parliament. It is thus the Opposition which plays the leading role at this point, and it is from this point of view that Opposition chairmanship and Opposition majorities on small Estimates committees might be justified.14 Here one finds the first evidence of anyone wanting to give the new committee for the New Zealand House the strange dual function that it eventually got. When Harrison says secondary function he clearly wishes to lump the functions of the two Westminster committees into the one New Zealand committee. But why, particularly after his well structured argument and description of the two separate Commons committees, does he ask for their very different roles to be pushed together into one committee when reviewing the needs of the New Zealand House of Representatives? He supplies no reason for this. Neither does he refer to the supposed Westminster Commons practice of combining these roles that the Standing Orders Committee Report erroneously found and quoted. He drew on excellent authorities (quoted), made a good point in his advocacy of Opposition chairmen and quite rightly warns of the conflictof-interest situation in having Treasury officials service a parliamentary committee examining Estimates of Expenditure they themselves had helped put together. He also shows how at Westminster a select committee, in this case the Public Accounts Committee, will use its authority if asked for help by the Comptroller and Auditor-General in his aim of improving accountability of departments. His excellent analysis was the first ever so applied to the New Zealand accountability scene. But in light of this his final recommendation seems strange to say the least, particularly as he provides no precedent, even an erroneous one as did the Standing Orders Committee. There was a submission from Mr Dollimore, then Clerk of the House. A faithful servant ignored? 15

It was a suggested draft recommendation passed to the full Standing Orders Committee, which had asked him to research overseas practice relevant to the Committee's inquiries. Mr Dollimore noted that his submission was prepared initially for a sub-committee, which could not meet.16 He gave a clear description of the Westminster Estimates and Public Accounts Committees' functions. He made no mention of Wellington's possible merging of the two committees' functions. He noted that the Westminster Public Accounts Committee ...works in close collaboration with the Controller and Auditor-General in his capacity as a Parliamentary Officer. The Committee is not partisan in its approach to its work and by convention a Member of the Opposition is appointed Chairman. Your Committee recommends for the favourable consideration of the Government that the English system or some modification of it be introduced.17 Mr Dollimore spoke of the unsatisfactory form of public expenditure control at Wellington. He stated that any new Committee should be empowered "to examine any of the Estimates presented to the House, to suggest the form in which the Estimates should be presented,

14 VUW 15

submission, p. 13. Neil Dollimore, CBE, Clerk of the House, House of Representatives, Wellington, 1946-71. Submission 16 pages. Legislative Series, National Archives. 16 This conflicts with evidence quoted previously from the Hon. William Scott, who implied he had been a member of an active sub-committee. Or were there two sub-committees? 17 H N Dollimore, Report for the Standing Orders Committee, 26 March 1962. See Para. 18, "Parliamentary Control of Expenditure", Report from National Archives, Wellington. pp. 15-16.

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Administrative Changes Related To The 1962 Exercise [Emphasis added.] and report what economies consistent with the policy implied in the Estimates might be effected". Now the powers implied in the section with the emphasis added would, for the first time ever, have given Parliament, through the new Committee, the power from time to time, to re-examine and re-determine the form of the Estimates rather than this role remaining solely the property of a Government and its advisers. But this section was left out of the Report of the Standing Orders Committee, as well as the subsequent Motion in the House setting up the new Committee. Dollimore commented expertly on the working of both Westminster Commons Estimates and Public Accounts Committees but was not heeded. 18

4.3. The Submissions In Retrospect THUS THE documents that exist provide no evidence of the input which made the A limited approach?

Standing Orders Committee think, erroneously, that Westminster had moved to combine the roles of their Estimates and Public Accounts Committees. Certainly Harrison advised this for reasons not fully argued or sourced while Dollimore wanted, after his own research, to just copy the Westminster system as found operating. And the Standing Orders Committee, in its Report, said in discussing the role of the Westminster Estimates Committee, This Committee has never enjoyed the same high reputation achieved by the Public Accounts Committee. Since 1946 however, "when it began to disregard the Estimates as such as to use them mainly as a starting point for the investigation of administrative efficiency designed to discover whether the taxpayer was getting his full twenty shillings worth of value for every pound spent" its importance and value has increased. There is however, some overlapping between the work of the two Committees and a liaison between them is established by ensuring that the chairman of the Estimates Committee is also a member of the Public Accounts Committee. 19 This passage may give some clue from where the Standing Orders Committee found their idea for strangely combining the roles of these two Westminster Committees, although for a really clear view one would need to go beyond the words "overlapping" and "a liaison". Also, as the Report in the quotation above does not supply the source of the remarks it included in parentheses or the source of their opinions, their veracity cannot be checked. It is surprising however, that in a search for reform, attention was directed only towards Westminster and not also towards Canberra and Ottawa. Also no submission or committee investigation brought up the precedent of the 1858 New Zealand Audit Act which was surprisingly abolished in 1867. But this had given statutory legitimacy to a stand-alone Audit select committee selected by the House under clear rules involving the Speaker.

4.4. The Debate Concludes THE DEBATE on the Report of the Standing Orders Committee was renewed and Mr Holyoake winds up the proceedings.

18 Dollimore, 19

p. 16. Emphasis added. Standing Orders Report, p. 21.

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completed on 21 June 1962. Mr Holyoake opened the final debate with another motion, which dealt with new or amended Standing Orders needing approval. This seven part Motion discussed, inter alia, the Parliamentary Prayer, rules for Members obtaining leave from the House and the time allowed for Members to speak to private Members' Motions. But most importantly were included the terms of reference of the new Select Committee on Public Expenditure (PEC). These were in paragraph no. 7 of the Motion and noted as proposed Standing Order No 308B, namely: 308 B. At the commencement of every session a select committee shall be appointed consisting of 12 members; to examine the estimates presented to this House and to report what, if any, economies consistent with the policy implied in those estimates may be affected therein; to examine the public accounts and the accounts of such corporations, undertakings, and organisations as are in receipt of any money appropriated by Parliament, in such manner and to such extent as the committee thinks fit, and to have regard to matters in relation thereto raised in the annual report of the Controller and Auditor-General or elsewhere, and to report thereon to the House or the Government; and to examine and report on any other matters referred to it by the House or the Government; the committee to have power to sit during the recess and to adjourn from time to time and from place to place and to have power to appoint sub-committees and to refer to such sub-committees any of the matters referred to the committee.20 Mr Holyoake informed the house that the seven-part Motion had been put together under his personal tutelage: Members will recall that when we discussed the amendments to the Standing Orders recommended by the Standing Orders Committee there was general agreement that we should secure further amendments. The Standing Orders Committee had been disbanded, but it was agreed that the Leader of the Opposition and I might talk together about these matters and see if we could come to some agreement to submit to the House. We have had this discussion. We had a few of our friends around us for it, and by curious coincidence those friends were all the members of the Committee that had been disbanded. Having had this discussion, the Leader of the Opposition and I, together with our friends, agreed to bring down this series of amendments, with which I shall now deal.21 This is a good example of the use of the party caucus in operation. Only in this case it appears to have been a joint party caucus! There was general acceptance of the proposed Public Expenditure Committee's terms of reference and there were no dissenting voices about either the amalgamation of the estimates and audit functions, or about any misinterpretation of Westminster procedure. To the contrary, Mr Holyoake justified giving this new committee a dual-purpose role because New Zealand's Parliament was smaller than Westminster, a factor, which had been stressed in the original tabled Report.22He argued against adopting the Westminster Public Accounts Committee practice of drawing the chairperson from Opposition ranks: "By tradition, and not under any Standing Order, the Accounts Committee has had an Opposition member as its chairman, and when the Government changed so has the chairman. Frankly, I have nothing against that part of it, but Members must remember that in New Zealand there is only one committee to do the two jobs".23He preferred to ignore the force of a custom of over one hundred years. 20 NZPD, 21 Ibid. 22

21 June 1962, Vol 330, p. 330.

Standing Orders Report, p. 21.

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Administrative Changes Related To The 1962 Exercise However, the size of a Parliament surely does not obviate the need to separate the two, one the examination of estimates, and later, the audit function. Westminster certainly has an Opposition chairperson for the Public Accounts Committee, a custom followed by Ottawa. Mr Holyoake belittled this custom, on the grounds that the custom had no force of Standing Orders behind it. But he appeared to show(or purposely did not) no comprehension of the application of the rules of natural justice to select committee practice. The purpose of having an Opposition chairperson is surely to ensure that the auditing function does not allow any government to be seen to be judging in its own cause, a common enough practice in business and public administration. If the 1962 Standing Orders Committee had heeded Mr Dollimore's advice, better procedures would have eventuated and the rules of natural justice would have operated in an audit committee with its Opposition chairperson. Nevertheless, it must not be forgotten that in bringing in this new Select Committee for Public Expenditure, the Standing Orders Committee did make a great step forward in the area of parliamentary accountability. Whereas before, the old Public Accounts Committee dealt directly with the Government, this improvement did open up opportunities for the House of Representatives to be a part of this formal process. This thesis will later cover aspects of how these opportunities were possibly developed and how Parliament was able, or not, better to control the Executive.

4.5. The Holyoake Administration In Action HOW TO OBTAIN a flavour of how the Holyoake Government went about its The new rules are in place, now to action. business? Apart from bringing in significant changes to the select committee system, it is also brought in far reaching changes to aspects of governmental management and public administration in the legislation it put in place. Notable would be the joining of New Zealand to the International Monetary Fund(IMF) and its related organisations as well as the setting up of a Royal Commission to examine for the first time since 1912 the operation of the States Services and Public Service. The Royal Commission was followed by legislation to put into place its findings. And the position of one of the Parliamentary Officers was defined in statute. This concerned the newly created Office of Parliamentary Commissioner for Administration, or Ombudsman. Examining how these administrative changes were handled by Parliament gives insights into the behaviour of Members and their institution. But National's 1960 Manifesto contained no mention of any intention, that if elected, it would move to join New Zealand to the IMF. As a result, the 1961 Speech by the Governor-General from the Throne on 21 June 1961 surprised many by saying, My Government has lodged formal applications to join the International The realities of the IMF revealed.

Monetary Fund, the International Bank for Reconstruction and Development, and the International Finance Corporation. If the current negotiations lead to the offer of acceptable terms for membership, a Bill enabling New Zealand to join will be submitted for your consideration. A White Paper will shortly be presented to you in order that full information may be available before the matter is debated in this House and a final decision made.24

23 NZPD, 24

21 June 1962, Vol 330, p. 332. NZPD, 21 June 1961, Vol 326, p. 10.

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A White Paper of 127 pages was tabled without debate or examination on 5 July 1961, and the International Finance Agreements Bill was brought into the House on 21 July and read a first time.25 The second reading commenced on 1 August, the Bill being passed on 15 August. However, the news of this intended legislation had generated a high degree of opposition in the community. On 2 August a Public Petition backed by 61,038 signatures was presented by Mr Spooner at the same time as the House was discussing the Bill. This Petition asked that there be no progress with the legislation until the community mood on this subject had been tested by a referendum. The Petition was passed to the Public Petitions A To L Select Committee chaired by Mr D.J. Carter.26 This Committee was forced to sit under urgency after asking the House's permission to sit while the House itself was sitting and debating under extreme, late and all-night urgency the Bill found unpalatable to these petitioners. The Committee reported back to the House on the same day the Bill was finally passed. They would not recommend to the House that there should be any referendum, and the Report was only tabled.27 The passage of the International Finance Agreements Bill was marked by several days when sittings were taken up to and past midnight. The Government used the "urgency" route on all its stages. On 10 August the Opposition had to request extra information about the IMF and its associated organisations. This was needed for a better understanding of the true nature of these bodies and provide background for the debate. Mr Holyoake said: I now lay upon the Table the by-laws, rules, and regulations of the International Monetary Fund, the by-laws of the International Finance Corporation, and the by-laws of the International Bank for Reconstruction and Development. They are not very voluminous-there are 44 pages in one, 10 in the next, and eight in the third--but the total of 62 confirms my statement that they were too voluminous to have been incorporated in the White Paper. These are the only copies in the possession of Treasury, and once they are on the Table of the House they are in the possession of the House and should not be removed; but immediately the Bill is passed some of them may be required by Treasury for the drafting of documents, and so on, and I would like the House to agree that Treasury may have access to them. Perhaps, on the other hand, it might be better to have photostat copies made.28 Copies were made following a request by Mr Nash, Leader of the Opposition. But analysis of this episode raises certain queries. Firstly, the 1961 Speech from the Throne had implied that full information would be made available before any debate started. But the Bill had been under debate, and under extreme urgency, over six days three of them running to midnight. In such circumstances, how could any Opposition be fully informed, with such important documents not produced until this relatively late stage? There was surely a case for them to have surfaced at the same time as the White Paper. Also, if for some strange reason, there was only one copy of each of them, why was there any need to ask especially for access to them by Treasury? They were now "public" documents and surely available to anyone. But this legislation was pushed through by the Holyoake Government in extreme haste, citing as its deadline 15 August 1961. Of the nine days during which the House sat, the debate for this Bill went to midnight four days, to 1.50 a.m. one day and another to 4.58 a. m. Mr Holyoake blamed the Opposition for his needing to use the "urgency" provision but this had been applied at an early stage. It is hard to see how any rational discussion of the various complicated issues around such a subject could have been carried out in a process placing such extreme physical demands on its participants. This episode shows how any New Zealand government can use "urgency" as a weapon either to defeat the Opposition at any 25

H R Lake, Minister of Finance, International Monetary Fund and World Bank, Implications of New Zealand Membership, AJHR, I.12, pp. 127, R.E. Owen, Government Printer, by leave 5 July 1961. 26 Mr G.A Spooner, 1893-1975, Wanganui, 1960-1969, Labour. Mr D.G. Carter, (KCMG 1977). 1908-. National. 1957-75. 27 Mr D.G. Carter, Chairman, Report of the Public Petitions A to L Committee, I.1, R.E. Owen, Government Printer, 1961, pp. 7. 28 NZPD, 10 August 1961, Vol 327, p. 1301.

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Administrative Changes Related To The 1962 Exercise time or bring in and pass legislation of which the wider community has had no prior notice of. It can also dominate debates where the Opposition is denied the proper information base on which to conduct meaningful debate. And as evidence of the pressures needlessly placed upon the participants Mr Speaker's poetic license. during such a debate, one can surely go to Speaker Algie's flippant remark when ending the debate at dawn on Saturday, 12 August 1961. He said, "As one who has contributed so little to the debate, perhaps I might be permitted to offer as a parting shot a couple of rather irreverent but very appropriate lines by Scotland's immortal poet, Robert Burns: The Kirkand State can go to hell, But I'm going home to Maggie.29 Hansard reported that the debate ended at 4.58 a.m. (Saturday).

4.6. The 1962 Mccarthy Commission THE REPORT of the McCarthy Commission on the State Services was tabled A foremost study appears.

on 6 July 1962.30 The State Sector Bill to enact its findings was subsequently introduced by form of Message from the Governor-General on 23 November 1962, the Minister in charge being the Hon. T P Shand.31Its progress through the House was very much on the model of that seen with the International Finance Agreements Bill. Urgency was taken on most stages, the debate being conducted over eight days between 4 December and 14 December, the last day of the Session. There were three midnight sittings and one to two minutes past three a.m. There is a great contrast between much of the discussion and findings of the Royal Commission and the conduct of the parliamentary debate. The Commission had dealt very carefully and thoroughly with a wide range of technical and managerial issues. It also made substantial research into the need for an improved regime of parliamentary accountability. In fact, it even covered financial management and public capital works planning and management in a manner far superior to that adopted by the Standing Orders Committee. It is Ideology intrudes!

this that makes its inclusion here valid. However, the House debate over the State Sector Bill was very much limited to ideological issues and totally ignored the accountability issues raised by the McCarthy Commission.

29

NZPD, 12 August 1961, Vol 327, p. 1322. Please note that Speaker Algie misquoted Burns. It is possible that the two lines come from the poem 'The Gowden Locks of Anna'; they should read "The Kirk and State may gae to hell, And I'll gae to my Anna". Robert Ford, Poetical Works and Letters of Robert Burns, Collins Clear-Type Press, London and Glasgow, 1903. pp. 358-9. 30 Hon. Mr Justice McCarthy, Report of the Royal Commission on the New Zealand State Services, The State Services in New Zealand. AHJR, H.41, R.E. Owen, Government Printer, June 1962, pp. 470. Tabled but not debated. 31 Hon. T.P. Shand 1911-1969, Marlborough, National, 1946-1969.

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Administrative Changes Related To The 1962 Exercise

National's stance towards the Public Service had in part been declared by the 1961 Speech from the Throne which said "You will be asked to consider an amendment to the Industrial Conciliation and Arbitration Act designed to restore the principle of voluntary membership of industrial unions; the right will be given to negotiate preference clauses in awards and industrial agreements".32 Also during the conduct of the Commission a conflict arose between certain of the State Sector unions and the Commission. The Combined State Services Organisations, the Public Service Association and the Post Office Association had asked for powers before the Commission going further than the mere opportunity to make submissions. Mainly, they wished to be present at all the proceedings of the Commission. This would have naturally included those sessions even when private, confidential evidence was being given. This the Commission refused with the result that these unions took their case to the Court of Appeal. In this they were not successful.33 However, this tended to ensure that when the Bill was being debated battle lines were divided between National and Labour as to their attitudes to unions and union membership. National's policy stance on voluntary union membership was seen as anti-union and Labour conversely took a pro-union stance in the subsequent debate. But this had the effect of crowding out any discussion on the wide range of technical and managerial issues that McCarthy so ably covered. It is thought relevant to this thesis to cover these, even in brief, as they will relate to further discussion. Firstly, it is clear that the McCarthy Commission Report contains much very First-class comparative research.

accurate, and still relevant discussion of aspects of British public administration. This still has application to New Zealand's system of governmental management, in particular to parliamentary accountability. For instance, the discussion on the role of the United Kingdom's Controller and Auditor-General and Audit Office is so wide-ranging and accurate that it raises the question as to why McCarthy's research and expertise were not also made available to the 1962 Standing Orders exercise.34This might have ensured that that Committee produced a more accurate and better set of recommendations. McCarthy also made comments, still applicable, Multi-year programming.

about the need to move from one-year sets of accounts for Parliament to the improvements found in "the programming of expenditure" over several years. In this context, they mention overseas practice, especially that of the British Plowden Report and the U K 1958 Select Committee on the Estimates.35 Finally, McCarthy's view of the role of technology and technical departments Technological inputs needed.

in the context of the State Services must be noted as excellent, remarkable for its time. The Royal Commission clearly saw that those with such expertise must be given a more important place in the determination of laying down policies, and the new structural forms of public administration were seen as vital. It was seen that when it came to injecting the more modern forms of financial control and information for Parliaments now being practised overseas into the New Zealand State Services, "the Ministry of Works will necessarily have a major part to play in developing and extending the techniques of programming 32 NZPD, 21 June 1962, Vol 326, p. 11. 33 See McCarthy, pp. 413-433 for Appendices 34 McCarthy, pp. 75-76. 35

I and II for Commission's and Court's rulings.

McCarthy, pp. 68-76. Also The Plowden Report, Control of Public Expenditure, Cmnd 1432, H.M.S.O. London. July 1961.

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Administrative Changes Related To The 1962 Exercise expenditure".36The Royal Commission also recommended that for the structure of the new State Services Commission there need be one Deputy Commissioner coming from a technical or professional background, and even from the private sector. This was seen as necessary not only for being able to interpret more effectively the viewpoints of the growing number of technical and professional state servants, "but even more importantly to appreciate more readily the impact of technological advances on the structure of the Services".37 These important questions raised by McCarthy are relevant today, and very Many statements not acted on.

much because the skewed House debate on the State Sector Bill hardly touched on them. Left improperly discussed in the context of wider reforms in 1962, they naturally remain unresolved and still relevant. It is for this reason that this thesis will return to them.

4.7. A Parliamentary Officer Is Created THE 1960 NATIONAL Government's introduction to New Zealland of the Innovation for the Citizen?

Parliamentary Commissioner for Administration, or Ombudsman, was path-breaking and innovatory. Its discussion here is thought valid as the introduction of this Officer had the potential to aid greatly the workings of Parliament in making the Executive more accountable. It will be seen that, in not following the model developed overseas, accountability was not raised to the level appertaining in Scandinavia. Also, in studying the introduction of this new Officer, one can see another instance of how executive members can alter for their own ends proposals originally aimed at making them more accountable. The introduction of the Office of the Ombudsman followed a pre-election promise and the Bill was introduced into the House on 29 August 1961 by Hon. Ralph Hanan, Minister of Justice. 38It became law on 7 September 1962. But the question must be asked whether Parliament had first been given the full powers of selecting such an Officer supposedly accountable only to it; and whether this Office is entirely independent of the New Zealand Executive? Section 3(2) of the Ombudsmen Act 1975 says that "each Ombudsman shall be appointed by the Governor-General on the recommendation of the House of Representatives". This recommendation comes to the House usually in the form of a Motion put by the Minister of that Department administering the Ombudsmen Act, in this case the Minister of Justice. Up till this time neither the House, nor any of its Committees, are involved with the selection or choosing of that person whose name the Minister is to put to the House. There is no involvement with any select committee of the House. And "selection" or "choosing" means taking some preferred person ahead of all who might be drawn into the selection process. This process is administered by the Department of Justice with its Minister, together with his or her Cabinet colleagues. The House of Representatives only "legitimates", makes legal, decisions made by others prior to the Motion of the Minister. Of course, "others" includes the Opposition political parties in their caucuses. The original evolution of the Office of Ombudsman was dealt with very

36 McCarthy, 37 McCarthy, 38

p. 84. p. 52. Hon. J R Hanan, 1909-1969, National, Invercargill, 1946-1969.

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Administrative Changes Related To The 1962 Exercise A historical note.

lightly by Mr Hanan, in his speech on the second reading of the Bill. First he said, "From as long ago as 1809 there has been in Sweden an Officer of Parliament known as the Ombudsman".39This is strictly true but it was only then that the Swedish Parliament finally gained full control of this important Office. It had been originally set up in 1718 by Charles XII of Sweden to serve executive purposes. He had been exiled for several years, living in Turkey, where it is possible he obtained some of the inspiration for this type of official office from the Turkish Office of Chief Justice, known as "Qadi al Qudat". Dr al-Wahab says, "That Office was and still is an essential part of the Islamic system of justice. The Chief Justice's function was to ensure that Islamic law should be followed and applied by government officials including the Sultan (Chief of State) in regulating the affairs of the people in their relations with the state and among themselves". 40 But the Office that the Swedish King originally established was only the equivalent to that of our Attorney-General, Chief Law Officer of any Government, a member of the Executive. And the move to parliamentary control from its original executive domination did not take place until the time of the Constitution of 1809. But this was not any simple administrative change. It was preceded by many years of struggle between the Kinga and civil forces wanting a more democratic society. "The institution was not created under a democratic system of government as some believe, nor was it created by mere political expediency. As we have shown, it is the result of a bitter experience and much struggle of the Swedish people towards better systems of government, institutions and laws that guarantee their security and protect their basic rights and freedoms".41And finally in 1809 the Swedish people removed this important Office from executive control to that of the legislature. Mr Hanan told the House nothing of this social history involving as it did a century of the Swedish people's struggle against the powers of their King. Moreover, he opted for the Danish model of Ombudsman's Office while giving little reason for this. He then proceeded to tell the House that in effect New Zealand would in the end only receive a "New Zealand" model of this Office by taking away the Danish model's inclusion of powers directly to query decisions of the Executive. He said "Of all the different systems, we have found that the Danish one most nearly suits our own needs and conditions, and this Bill follows very broadly the approach of the Danish law". Then he said, "One difference between the provisions of this Bill and the Denmark legislation is that we are excluding Ministers from the Commissioner's jurisdiction"; he also said that to do this would "seriously impair" the fundamental principle of Ministerial responsibility to Parliament. He further justified this by saying that this new Office must be prohibited from directly criticising the policy of a Minister, or Ministers. For the Commissioner was only to be empowered to scrutinise administration, the work of departments and officials supporting any Minister. And this would allow, in effect, scrutiny of the acts of that Minister.42 It can be seen that there has been a subtle shift in the title of this proposed Officer of Parliament. The 1960 National Party Manifesto had named a proposed Parliamentary Officer "for Investigations". This word implied a wide term of reference which would have included direct scrutiny of Ministers and their policies, as in Scandinavia. Now, in a subtle semantic shift, "Investigations" became "Administration" with its severely restricted brief of operation. Mr Hanan continued, "If the Minister does not follow the recommendation of his officers and advisers, then that fact will doubtless be stated by the Commissioner in his report. In addition, and this is important, this House will have an opportunity of calling on the Minister to justify his actions, and it must be remembered that Members will be armed with the Commissioner's finding".43One must query exactly what is meant when Mr Hanan says, that the "House will have an opportunity" to call the Minister. He only discusses a volitional matter and, even assuming the most damning of Reports from the Commissioner concerning maladministration on the part of a Department, there is no obligation, as the law or 39 NZPD, 40

25 July 1962, Vol 330, p. 1011. Dr Ibrahim al-Wahab, The Swedish Institution of Ombudsman, An Instrument of Human Rights, pub. LiberForlag, Stockholm, 1979. Printer: Centraltryckeriet AB, Boras. p. 24. Supplied courtesy of the Office of the Ombudsman, Stockholm, Sweden. 41 al-Wahab, pp. 26-27. 42 NZPD, 25 July 1962, Vol 330, pp. 1011-12. 43 NZPD, 25 July 1962, Vol 330, p. 1013.

75


Administrative Changes Related To The 1962 Exercise parliamentary standing orders are now written, for the House necessarily to call to account a Minister or his officials seen to be responsible for such an act. The Ombudsmen Rules 1989 only lay down how an Ombudsman will publish Reports. It does not lay down any obligation on such Reports to be passed to a new Ombudsman's select committee similar to that overseas, or even only to the House.44 Furthermore, the Ombudsmen Act, Section 13(5), sets out how the Prime Minister can present matters to an Ombudsman for investigation. On reporting back to the Prime Minister, the Ombudsman, according to the Act, is under no obligation to automatically report the matter to Parliament. Also, Section 4 of the Act allows any Ombudsman to "hold any office of trust or profit, other than his[sic] office as an Ombudsman, or engage in any occupation for reward outside the duties of his office". But this can only happen with the approval of the Prime Minister. Even if this were at all satisfactory, surely it would be for Parliament to allow an Ombudsman to undertake extra employment, not the Executive. It is such provisions that have moved the Swedish concept of the Ombudsman, developed to a high level of independence from the Executive following after a long period of civil struggle, back to a situation where any New Zealand Executive can have a subtle influence on the workings of this Office. This discussion may have been extended overly in The House has no powers of choosing its own Officers.

order to cover the introduction of the Ombudsman structure to New Zealand. However, it is thought necessary for this thesis as this discussion will be continued around the subject of Parliamentary Officers. Similar to what occurs with the Office of the Controller and Auditor-General, so with that of the Ombudsman. The New Zealand House of Representatives can only legitimate these appointments. As yet they can play no part in the selecting, the choosing the incumbents of these Offices, ostensibly their direct servants.45

4.8. Conclusion THIS CHAPTER has dealt with administrative changes occurring in 1962. Much accomplished.

These included the setting up of the new Select Committee on Public Expenditure, the McCarthy Commission, the passing of the I.M.F. legislation and the installing for the first time of an Ombudsman. All these changes, even the I.M.F. related one, were promoted to put down new accountability rules for the conduct of government.

44 D 45

G McGee, Clerk of the House of Representatives, The Ombudsmen Rules 1989, Government Printer, pp. 2. See Footnote No. 53, Chapter VI re role of Chairman of U.K. Public Accounts Committee in selecting

the U.K. Comptroller and Auditor-General. Also U.S. Congress has power to select three nominees for the post of Comptroller General of the United States and submit these for the President to select one. This Officer has a term of 15 years under Public Law 97-258-Sept.13, 1982. Communication from Linda Jones-Kemp, Executive Assistant to the Comptroller, [1 March 1992].

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Administrative Changes Related To The 1962 Exercise

These occasions introduced new levels of debate in the field of parliamentary accountability. It could be said, that of the total period covered by this thesis, this series of exercises, taken together, represent the highest level of interest taken in new forms of parliamentary financial, economic and administrative management. However, if there had been better co-ordination, a greater political will to allow backbenchers and a wider public policy community to have formal inputs, better structures leading to higher accountability of the Executive might have eventuated.

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Chapter 5. The Period Between The Reforms Of 1962 And 1985 5.1. Introduction BETWEEN THE 1962 Standing Orders Committee exercise and that of 1985 the House Continual interest in reform.

of Representatives convened the Standing Orders Committee on four occasions in order to review procedures. Three exercises were initiated during National Governments in 1966, 1972 and 1979. One was initiated during a Labour Government in 1974. None of these exercises could be considered similar in importance to the other three, of 1951, 1962 and 1985 examined by this thesis. They did not bring in wide-ranging changes on the scale of the other exercises. However, to provide continuity over the period studied their examination is warranted. Some of the minor changes brought in do provide opportunity for critical analysis of the reform process.

5.2. The Main Changes In 1968 THE STANDING ORDERS Committee was next convened on 15 July 1966 by a Mr Holyoake's influence still there.

Motion of the Prime Minister Rt Hon. Keith Holyoake. 1 It was entrusted with examining the operation of the changes made in 1962 and advising if further changes were necessary. No attempt was made to elicit public submissions. On 3 May 1967 the Committee brought forward an interim Report to a House of 80 Members, National having 44, Labour 35 and Social Credit 1. It had five meetings, of which there is no record. It received submissions from Mr D.J. Riddiford M.P., and the Constitutional Society. Mr N.H. Dollimore, the Clerk of the House submitted a memorandum(of which there is also no record) and obtained information from overseas. The members also heard from Mr V.F.Cracknell M.P.(Social Credit) who was allowed to sit in on the Committee's meetings. 2 The proposed changes were contained in a clear schedule as part of the Report. The House agreed to discontinue the 10 p.m. Adjournment Debate brought in during 1962 as it had not been giving Private Members the opportunities to raise matters of local or special interest as had been hoped. But Imprest Supply Bills were increased from two to three, and the debate 1

The Committee members were Mr M.A. Connelly, Q.S.O., 1916-, Labour, Riccarton 1956-69, Wigram 1969-78, Yaldhurst 1978-84; Dr A.M. Finlay QC, 1912-, Labour, Labour, North Shore 1946-49, Waitakere 1963-69, Henderson 1969-78; Mr J.H. George, O.B.E., 1901-, National, Central Otago 1954-57, Otago Central 1957-69; the Hon. J.A. Hanan, 1909-69, National, Invercargill 1946-69; Mr R.E. Jack(Kt 1970), 1914-77, National, Patea, 1954-63, Waimarino 1963-72, Rangitikei 1973-1977; Mr N.E. Kirk(P.C. 1973) 1923-74, Labour, Lyttleton 1957-69, Sydenham 1969-74; Hon. J. R. Marshall(PC 1966;C.H., G.B.E. 1974), 1912-88, National, Mt Victoria 1946-54. Karori 1954-75; Mr H May(Q.S.O. 1976), 1912-, Labour, Onslow 1954-63, Porirua 1963-69, Western Hutt 1969-75; Mr R.D.Muldoon (P.C. 1976; C.H. 1977; G.C.M.G. 1984), 1921-1992, National, Tamaki 1960-1992; the Hon. H. Watt(P.C. 1974), 1912-80, Labour, Onehunga 1953-1975 and the Mover Rt Hon. Mr Holyoake. 2 Hon. R.E. Jack, Chairman, Report of the Standing Orders Committee, I.14, AJHR, 1967, Government Printer. See also Mr V.F.Cracknell 1912-89, Social Credit, Hobson, 1966-69; Mr D.J.Riddiford, M.C. 1914-1974, National, Wellington Central 1960-72.

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on the Appropriation Bill was enlarged, this allowing extra time for airing of grievances and examination of the performance of the administration. But a proposal to restore the 30 minute time limit for Address-in-Reply Debates from that of 20 minutes, was not accepted. Neither did the Committee proceed with the idea of recording votes by mechanical means. The proposals of the Constitutional Society were deferred. These concerned the limited time for select committee work; the division of the session into four separate sections; the overuse of the urgency motion; and the need to improve the status of the Speaker.3 A submission by Mrs Rona Stevenson MP was not accepted.4Mrs Stevenson had queried the practice of barring women from that area of the Floor of the Chamber traditionally reserved for men, "originally for chairmen of local bodies and representatives of national or party organisations and for whom seats could not conveniently be provided on the left of Mr Speaker's Chair". This area was extensive and at the end of the Chamber opposite to that where Mr Speaker sat. However, the Committee agreed there was no logical reason not to change this procedure, but said "that in view of the need shortly to take this area to accommodate the enlarged membership of the House, the existing arrangement might well continue in the meantime".5 The Standing Orders Committee produced a Final Report debated on 3 July 1968.6 For the purposes of this thesis only four items will be discussed. One is the submission of the Constitutional Society. It made several points and its President and Chief Executive were allowed to appear personally before the Committee. There is no copy of its written submission available, nor even the names of its senior officers mentioned. But the Committee Report did mention the Society's previously well-known "expressed opinions in regard to the length of the session, the limited time available for the work of Select Committees, the division of the sessional period into four separate sections, the interposition of delay between the second reading and the passing of Bills, the use of the Urgency Motion and the status and importance of the Office of the Speaker".7 The 1968 Final Report mentioned these points but did not say what action the Committee recommended. During the debate Mr Hunt said he disagreed with the Society's idea of slotting the Speaker into a new constituency to be known as Parliament Hill. Mr Hanan agreed with the suggestion of raising the status of the Speaker, saying "there is strong argument that if we want to raise the status of Parliament in the minds of the people, the Speaker should have a higher status outside the House than he does. In most other countries the Speaker has a high status outside the House. I recall that Roland Mitchener(sic), who was the Speaker of the Canadian Legislature, was made a Governor-General of Canada, which indicates the status and standing of the Speaker in that great democracy".8 However, this submission did not evolve into any recommendation to examine and possibly raise the status of the New Zealand Speaker. The Committee suggested the abolition of the procedures to do with the financial debates conducted in the House under Committees of Supply and of Ways and Means.9 They also discussed extending the powers of inquiry of select committees to other bodies than just government departments. Also, the House lost its power to delay a Government Bill, even if that Bill was accompanied by a Message from the Governor-General, by denying permission to print it. And there was raised yet again the question of full recording of Committee proceedings. The debate on this Report was conducted in the Committee of the Whole House. Normally, this is not recorded but, as is usually the custom when such debates on Standing Orders occur, full recording was used. Only eight Members contributed to the debate. The proceedings were opened by Mr Holyoake. He commended the changes made following the 1967 Interim Report. He said "It is generally agreed that after studying systems in other countries and having regard to our own procedures, we have produced the best system we can find up to the present anyhow, and it has worked well".10 3 1967 Standing Orders Report, p. 12. 4 Mrs R.M.Stevenson(M.B.E. 1976) 1911- 88, National, Taupo, 1963-72. 5 1967 Standing Orders Report, p. 12. 6 Hon. R.E. Jack, Chairman, Report of the Standing Orders Committee, I.14, 7 1968 Standing Orders Committee Report, p. 14. 8

1968, Government Printer.

NZPD, 3 July 1968, Vol 355, p. 115. Roland Michener P.C., (1900- ) was Speaker of the House of Commons, Ottawa, 1957-62. There were other Speakers who filled this Office. 9 Refer Figure 1.1, Chapter I. "The Main Functions of Parliament".

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5.3. 1968-Financial Procedures MR HOLYOAKE commended the increased time made available for Members to A failure to modernise the procedures.

participate in the financial debates. He referred to "simplification of procedures for the introduction of Government Bills. Again we shall cut out unnecessary flummery, and there will be a tremendous amount of it cut out. We have followed unnecessary procedures(in the past) in the presentation of the budget and the consideration of the Estimates".11The Committee had introduced a simplification, put simply, that involved putting the Budget Address, Estimates debate and subsequent committee inquiries into departmental estimates all within various stages of a single Appropriation Bill. To do this they had deleted reference in the procedure to the two Committees of the Whole House of Supply, and Ways and Means. But there were Members who approved of these radical changes like Mr Hugh Watt, Deputy Leader of the Opposition. 12He also approved of this loss of power of the House but said, "This at times could put extra pressure on the Government Printing Office, and also extra pressure on Ministers themselves to ensure that their Bills are available to the House".13Sir Leslie Munro deplored the abolition of the Supply and Ways and Means Committees. 14He said, "As a traditionalist I must say I am a little dismayed that the Committee of Ways and Means and the Committee of Supply are to be abolished after 300 years of existence. I know new Members find it very difficult to find out what is going on when the House goes into Committee at various stages but after all this is in a great historical tradition".15 For the Standing Orders Committee had felt that the time had arrived for the New Zealand House of Representatives to cut itself free from the social-historical tradition linked to the evolution of financial procedures at Westminster. Wellington had to move forward on the basis of its own expertise and research. The Committee said, The Financial Committee system established by the House of Commons in the seventeenth century when Speakers were felt to have become too closely allied to the King has only historical significance today. The old procedure has been retained by the [Westminster] Commons to indicate the financial initiative of the Crown, but it is not an essential part of New Zealand's procedure.16 This attitude towards traditional mechanisms can be criticised. Much of what the Committee derided and declared obsolete and irrelevant for New Zealand practice is still worth studying and applying. Firstly, what were the main purposes of these Committees of the Whole House with these archaic sounding names? They were two-fold, one being that by going "into Committee" the House could move from that arena, the full House, where Ministers had formal influence. They were then, and still are even today, the Monarch, in Parliament, being, together with their officials and advisers, the servants of that Monarch. Also, by using the word "committee" one sees the linkage between any Committee of the Whole House and a select committee. In the seventeenth century "The Commons were not anxious to be 'rushed into expenditure by the parliamentary friends of Charles II'. They were in an ill humour for '...the supplies granted in the Session of 1666 had been squandered away' so they declared formally their pro10 NZPD, 3 July 1968, Vol 355, p. 107. 11 Ibid., p. 108. 12 Hugh Watt (P.C., 1974), 1912-1980, Labour, Onehunga, 1953-75. 13 NZPD, 3 July 1967, Vol 355, p.114. 14 Sir Leslie Knox Munro, K.C.M.G.,K.C.V.O., 1901-72, National, Waipa 15 NZPD, 3 July 1967, Vol 355, p. 112. 16

1968 Standing Orders Committee Report, p.8.

80

1963-69, Hamilton East, 1969-72.


The Period Between The Reforms Of 1962 And 1985 cedure for the scrutiny of the Crown's financial needs".17The resultant Standing Order, Westminster's first, said That this House will not proceed upon any Petition, Motion or Bill, for granting any Money, or for releasing, or compounding, any sum of Money owing to the Crown, but in a Committee of the Whole House.18 So it is difficult to see the justification for the approach taken by the Standing Orders Committee. There is still the need to guard against the extravagances of those in power, as was recognised in Britain in the seventeenth century. But more particularly, scrutiny should take place in that arena of Parliament, a Committee of the Whole House, where the formal influence of Ministers and their officials, as servants of the Monarch, is supposedly less dominant. Also, when these two Committees of Supply, and Ways and Means, were abolished it diminished the perception of Members that financial procedures involved matters of special interest. It possibly inhibited any subsequent consideration that select committees would be permitted to handle financial bills. For in comparison with overseas legislatures, Wellington even today does not allow select committees to handle "money bills". And Wellington's House has not debated as to how its presiding Official, the Speaker, can be seen to be impartial to and have severed formal links with a political party able to dominate financial debates in the House. New Zealand's Speakers are still "too closely allied", to quote the Committee, to the modern equivalent of the King of the seventeenth century. The second main reason to disagree with the Committee recommendations is best explained by showing what was meant by the two terms "Supply" and "Ways and Means". The former merely relates to those Monies supplied to provide the wherewithal for the governmental machine to function, to pay the salaries, to attend to the infrastructure and the administration of government. "Supply debates", whether in the House, in any Committee of the Whole House, or in select/standing committees, are in part to demonstrate the accountability of any government as to how it intends to use those Monies to be "supplied" to it. By contrast, Ways and Means relates to revenue and provides for government the opportunity to justify its taxation policies. But this can imply examination of wider matters than taxation such as that government's borrowing programmes. This is de rigueur at Westminster and Ottawa. It also opens up, or should, the whole question of economic policy direction and structured and formal House debates on these subjects. However, this 1966 Standing Orders Committee did not seem to have access to writers such as Reid, who discusses the 1913 U.K. Provisional Collection of Taxes Act. Up till 1913 the Westminster House of Commons had procedures which permitted the measured consideration over time of taxation Bills. These took, and still do, several months to pass through all procedures. This Act permits the provisional legitimating of taxation measures in such bills immediately they are introduced and tabled. Full legitimating follows their consideration through all the normal bill stages including a standing committee hearing. This U.K. Act was needed because of a successful court action objecting to taxes being levied only after the initial Motion in the Committee of the Whole House and not when the Bill was finally passed into law.19 It is ironic, but this U.K. Act was updated on 1 February 1968, several months before the 1968 Standing Orders Committee finally reported. Why this Committee did not make contact with an Australian scholar like Reid, one of many involved in such work, and also make direct links with Parliaments such as Westminster, must only be left to conjecture. As it was, this Standing Orders Committee had to review financial procedures seemingly overly encumbered with only the form relating to seventeenth century practice, described by Mr Holyoake as "flummery". It is regrettable, that in trying to improve the substance of financial procedure, they saw no value in the history and practices of other institutions still redefining their roles vis-Ă -vis a dominant executive or in the work of scholars analysing this centuries long struggle.

17

Reid, p. 48. Quoting E.H. Davenport, Parliament and the Taxpayer, Skeffington, London. 1918. p. 119 and Catherine Strateman (ed.), The Liverpool Tractate, Columbia University Press, New York, 1937. p.59. 18 Reid, p.48 He also notes that "This is the earliest of the Standing Orders of the House of Commons". 19 Reid, pp. 135-6.

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The Period Between The Reforms Of 1962 And 1985

5.4. 1968-Specialist Select Committees THE STANDING ORDERS Committee expressed interest in the procedures used Another failure to extend the scope of review procedures.

by certain new select committees at Westminster's House of Commons. These [committees] were two "specialist" committees, one for Agriculture, and the other for Science and Technology, plus the Select Committee for Nationalised Industries. The members noted that the two specialist committees had "held their meetings mainly in public and have taken evidence from Ministers as well as departmental officials". The Select Committee on Nationalised Industries had used the same approach "and now conducts many of its inquiries in public. The industries that fall within its ambit include B.O.A.C and B.E.A., the National Coal Board, the British Electricity Authority, the Gas Council, the British Transport Commission, and the North of Scotland Hydro-Electric Board".20 Some members of the Public Expenditure Committee also asked, unsuccessfully as it turned out, if the terms of reference of their Committee could be extended "to provide for parliamentary scrutiny of the accounts of Marketing Boards, the Wool Commission, and other such bodies, some of them financed by state guaranteed overdraft accommodation, and others having their administration costs financed by levies on the industry concerned".21 Only two Members spoke during the debate to this important matter, Sir Leslie Munro and Mr Connelly. Sir Leslie urged a beginning of parliamentary scrutiny of these powerful bodies. He said "One reason for the fact that we are not estimated to be of such importance as we ought to be is that the chairman of the Wool Board, the chairman of the Dairy Board and the chairman of the Meat Producers Board are vastly more powerful than any Member of this House-vastly more important, I am afraid in the eyes of the public and I would like to see that all their doings are investigated by us, the elected representatives of the people". He also said that it was well known that in the United Kingdom it is difficult to investigate those powers running such bodies controlling the mines and the roading system and that in the Commons it has been raised more than once "as to how a Member can raise a point that concerns the statutory bodies that wield such power in the United Kingdom".22 Mr Connelly commended the new select committee procedure at Westminster, as it "was justified on the grounds of the need for greater accountability by the Executive and public corporations and greater accountability by public authorities". Westminster's new-style committees "tend to take evidence in public and to concern themselves with policy...In recent hearings those called have included the chairmen of the Atomic Energy Commission, the Central Electricity Board and the Ministers of Power and Technology". He urged an extension of the powers of select committees into these specialist functions saying that "it is essential for the survival of Parliament as an effective instrument of democracy that the public should at all times be given the maximum amount of information available".23He said that new procedures for committees would fulfil this. But here this important matter was left unresolved, with the Report saying only, "Your Committee which discussed this matter at some length, is of the opinion that further consideration should be given to it".24

20

1968 Standing Orders Committee Report, p. 12. B.O.A.C. stands for British Overseas Airways Corporation and B.E.A. for British European Airways, both statutory corporations. 21 Ibid. 22 NZPD, 3 July 1968, Vol 355, pp. 112-3. 23 Ibid., pp. 117-8. 24 1968 Standing Orders Report, p. 12.

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The Period Between The Reforms Of 1962 And 1985

5.5. 1968 Committee Proceedings, Opening To The Public And Recording THIS MATTER was discussed by the Committee but, as there are no recorded Unnecessary secrecy still rules.

Journals, no indication is given whether this was raised by Members of the Committee or from some outside source. They turned the suggestion down, claiming that "substantial additional expenditure would be involved" in a full recording of proceedings. Most of those speaking to the debate raised this subject, with a majority approving. Mr Kirk, Leader of the Opposition, said that it was time to "seriously and carefully consider the possibility of the hearings of select committees being opened to the Press in order that this important part of Parliament's work can also be part of the pattern of informing the public as to what is going on". 25Mr Hanan, Minister of Justice,said "I am somewhat disappointed that we have not seen fit to provide for the full recording of what is said in Committee. Very often, because the proceedings are not being recorded, especially when we are off the air, Members will say things that really should be recorded, and the press, after there have been several hours of debating in the Committee stage, tends to lose interest". But as the Committee was told(by whom?) that there was difficulty in obtaining sufficient numbers of Hansard reporters "we, the minority...will have to accept the position in the meantime".26 And Prime Minister Holyoake deplored the added costs of extra Hansard reporters, if they could be found, as well as the added costs of printing and publishing. After all, he said that it would be very difficult "to record accurately all that is said when there is a dispute and there may be some heat with objections from all corners of the House".27No one seems to have pointed out that suitable technology existed at that time that did provide the basis for full recording and publishing and was being used in other Parliaments. But after this, his opinion naturally prevailed and even today no recording and publishing of the proceedings of the Committee of the Whole and select committees is done. Mr Rata said that all committee hearings should be open to the press and the public, unless the Prime Minister moved they be kept out, the reverse of what transpires now.28He suggested drawing from the United States Congressional system, as "there could be some aspects that we could adopt to improve the situation. Anyone should be allowed to make submissions to a committee, not merely those who are asked to do so by the Committee Clerk either over the telephone or in a letter".29Mr Connelly agreed that the committee hearings should be more open. He said that public information covering Parliament should spread to all its forms "not merely what we say here in the debating Chamber, but ultimately what goes on in other places including select committees". He discussed the practice of Britain and the U.S., saying "New Zealand practice tends to lag behind. In the United States great publicity is given to the affairs of congressional and senate committees".30 But a different view was given by Sir Leslie Munro, who said that select committees were "where perhaps the most valuable work of the House is being done and no particular Member is seeking the limelight. Therefore, I am not particularly desirous of seeing committees sit in public, as they do in the United States constantly, where you get a good deal of unruliness, certainly of exhibitionism-I am satisfied of that".31

25 NZPD, 3 July 1968, Vol 355, pp. 112-3. 26 Ibid., p. 116. 27 Ibid., p. 109. 28 Hon. M. Rata 1934-, Labour, Northern Maori, 29 NZPD, 3 July 1968, Vol 355, p. 122. 30 Ibid., p. 118. 31

1963-1980.

Ibid., p. 112.

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5.6. The Main Changes In 1972 THE STANDING ORDERS Committee was next convened on 26 November 1971 in a Research and archival failures.

House of 84 Members, 45 for National and 39 for Labour. The Motion to do this was put down by the Prime Minister, Rt Hon. Keith Holyoake.32 The Committee was given a general mandate to review the procedures of the House and advise what changes were thought necessary. No attempt was made to attract public submissions, but a number were received from Members as well as Messrs R. Alley, D. Shand and Dr Robinson of Victoria University of Wellington. The Committee was chaired by the Hon. R.E. Jack, the Speaker, who "found these of great interest". But there is no record of any of the submissions of these academics. The Committee's Report also provided a concise review of both the 1962 and 1968 reforms, saying "it had before it papers showing the recent developments and variations of parliamentary procedures in some of the overseas countries with systems similar to New Zealand". Because there is no record of these papers, no evaluation can be made of the worth of such research. The New Zealand House of Representatives seems to have no tradition of building up a "learning system" by gradually storing up and saving the full record of such research as occurs from time to time. The Committee did say that "it is noteworthy that in every such country the problem is identical, namely, that the burdens on Parliament are ever-increasing and that it is, therefore, essential to make the best use of the limited parliamentary time available".33However, one cannot judge how effective was the use the Committee made of this overseas material. The Report concentrated on general procedural changes and was debated on 9 June 1972. The Prime Minister, now the Rt Hon. J. Marshall, opened the debate to which only eight Members spoke. For the purposes of this thesis only three points need be discussed. First, more power was given to the whips. The Committee recommended that a change be made to the procedure for allocating time for debates. Up till this review the Speaker, aided by the Clerk of the House and staff, had been completely in charge of this procedure. Now, as a result of this review, there came into existence a Joint Committee of the party whips, chaired by the Chief Government Whip. First, there would be an agreed time for each debate which would be noted on the Order Paper. "It would then be the responsibility of the Whips to allocate the time allotted among their own members. In these circumstances there would be no necessity for Mr Speaker to apply the normal speaking times to individual Members. If no agreement as to the total duration of debate was reached by the Whips Committee, the Bill would take the normal course and the usual speaking times provided for in Standing Orders would apply".34 Now this change certainly would result in, at times, more economical use of time, as the agreed upon lists of Members, from each party, "received the call" from the Speaker. But this implies that the Speaker is forced into a situation whereby he, or she, cannot allow other Members, outside those appended on the Whips List, to speak. This also assumes of course that Members of Parliament are only members of political parties, and that in their "representative" roles they have no other voice that they may wish to exercise in the House, free from the party whip. This rule would inhibit many from speaking and contributing to put views outside the party line. Also, putting a joint and formal power into the hands of the party whips inside what after all is a "representative" body reduces the collective power and influence of that body.35It also reduces the power and influence of the Speaker. It would seem that the attempt of the 32

The Committee members were Mr A.E.Allen(CMG 1973), 1912-92, National, Franklin, 1957-72; Dr Finlay; the Hon. G.F.Gair, 1926-, National, North Shore 1966-90; Mr J.R. Harrison, 1921-, National Hawkes Bay 1963-84; Rt Hon. K. Holyoake; Mr J.L. Hunt(P.C., 1989), 1938-, Labour, New Lynn 1966-; Sir Roy Jack; Mr N.Kirk(P.C., 1972); the Rt Hon. J. R. Marshall; Mr H. May; the Hon. Hugh Watt. 33 A.E. Allen, Chairman, Report of the Select Committee on Standing Orders, I.19, Government Printer, 1972, p. 3. 34 1968 Standing Orders Report, p.10. 35 NZPD, 9 June 1972, Vol 378, p. 48. Mr Gair speaks "of the formalisation of the work of the Whip's Committee".

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The Period Between The Reforms Of 1962 And 1985 Constitutional Society to raise the influence and status of the Speaker during the 1962 review of Standing Orders had been forgotten. The subsequent debate remained silent on this point, the Speaker's status not being raised. The second point about these changes in 1972 concerned the sending of the departmental estimates to select committees. The Committee reported that the Public Expenditure Committee "is under heavy pressure in examining the Estimates", and suggested that the various Estimates "could be examined by other appropriate select committees, e.g. the Education vote by the Education Committee".36This common sense suggestion was approved by the House with little discussion. But it is included here to show an important step in the evolution of the select committee system. The setting up of the Public Expenditure Committee in 1962 had been a step forward but had obviously thrown an extra-heavy work load its way. It was now the turn of all the other committees to share in this, and at the same time extend their authority. This was seen in another move to extend the term of appointment of select committees to cover the term of Parliament rather than only to that of each Session. Changes in personnel of each Committee were now only to be notified to the Clerk of the House, not the House.37 But this move diminished the authority of the House (See Chapter III). Third, the Committee discussed the subject of public access to and information concerning committees. They reported under the headings of "Premature Publication of Evidence", "Admission of Strangers" and "Admission of the News Media". They did little more than present the requisite Standing Orders in a more understandable, logical form. Material under discussion or presented to a select committee was privileged until its presentation in the House. They also said, "the use of tape-recorders and similar appliances for making a record of the committee's proceedings is considered undesirable and is prohibited under the amended Standing Order". And a new Standing Order was inserted to clarify how a select committee seeking permission of the House could "have its proceedings(other than deliberations) open to the new media".38The Committee made no mention of the full recording of committee proceedings, discussed by previous reviews or allowing the public to view proceedings. However, the best expression of any desire to modernise the select committees and general procedure can be deduced from the contributions of some Members who spoke to the debate. These are examples of criticism that still apply to House of Representatives' procedure. Mr Hunt, admittedly speaking about the Committee of the Whole House stage of a bill, deplored the lack of full Hansard reporting and, speaking about the Estimates debate, said, "I have always found it unsatisfactory, after a five minute speech, to receive a reported version of what I said which often does not cover the points I made". He also said that, as a member of the Committee, he found the contributions of the three academics very useful and hoped that "during the long recess these submissions could be considered in greater depth, and could make a greater impact that we have been able to make today".39But this was not to be. Dr Finlay concurred with what Mr Hunt had said, especially applying it to select committees. However, if there were to be general access to committees as at Westminster, the House would first need to clarify its rules about the privilege of evidence and documents produced in committees.40 Mr Riddiford put into the record what must be the most detailed description of the evolution of Hansard found in the Wellington record, even quoting Dr Johnson, himself once a press gallery reporter. Too long to quote here in full, he said, "Hansard was originally developed because of complaints of inadequate reporting of Parliament in the news media of those days". He also said, following on from the remarks of Dr Finlay and Mr Gair, that the question of misreporting ...is intimately tied up with the publication of the Hansard report. In Britain, Canada and Australia Hansard reports are brought out the day after the debate has been held so that, if the debate is on an important subject like the Budget, what Members have actually said in the House is available to other Members. Let us see what is the result of our existing system, when we do not get our Hansard reports for at least a fortnight, when we receive the so-called short Hansard. The Hansard with the pink cover comes out about three weeks after the debate has taken place. The only value of Hansard is in 36

1968 Standing Orders Committee Report, p. 11. See also Schedule B of the Report showing all select committee meetings during 1969, 1970 and 1971. 37 Ibid. 38 Ibid., pp. 12-13. 39 NZPD, 9 June 1972, Vol 378, p. 47. 40 Ibid., p. 55.

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a historical sense. We can look up Hansard and find out what Members said last year and compare it with what they are saying today.41 He did not think that New Zealanders were any less efficient than Australians, Canadians or Britons and saw no reason why we could not emulate them in their parliamentary practice, at least in having an equivalent Hansard covering the committee work. But the situation as Mr Riddiford so criticised is very much that as existing today.

5.7. The 1974 Review THE NEXT REVIEW of Standing Orders was conducted in 1974 during the term A timid approach?

of the 1972-75 Labour Government in a House of 87 Members, 55 being for Labour and 32 for National. In its 1970 Election Manifesto Labour had said, that "A Labour Government will sweep aside some of the anachronistic customs of Parliament...Select Committees will be opened to the public and the media....there will be a further review of Standing Orders of Parliament to secure more efficiency in the conduct of the business of Parliament and an enlightened approach to the way in which Members are expected to take part in the affairs of Parliament".42However, the new Government waited until 19 March 1974 to convene the Standing Orders Committee. This was done following a Motion by the Hon. Hugh Watt, Deputy Leader of the Opposition acting for the Prime Minister Rt Hon. Norman Kirk. 43Holyoake, Keith* Its Report was tabled and debated on 8 November 1974. 4445This Report was not notable for any initiative going far beyond the parliamentary parameters it found on being convened. It made no use of specialist academics nor researched any overseas practices. It had put out a "general invitation" to Members to make suggestions and received written submissions from Messrs Connelly, Gair, Gandar, Davey, Mayson, Hunt, Dr Wall and the Clerk of the House and the Editor of Debates. It reported no discussion of the merits, or otherwise, of these submissions, only listing four pages of suggested changes to Standing Orders and a Schedule of actual amendments for the House's action. The debate in the House was opened by the new Prime Minister the Rt Hon. W.E.Rowling, Mr Kirk having died. It was only a short debate taking place near the end of the 1974 Session, and filling only six pages with six Members speaking. Mr Mayson said, "The Report, in the main, reinforces the widely held opinion that while politicians or parliamentarians can change all around them, they cannot change that with which they are directly concerned. At the time of the establishment of the Committee, I said I hoped the Prime Minister would give favourable consideration to the appointment of new Members from both sides of the House who could apply a fresh perspective......the Report is indicative of the absence of the freshness that might have been contributed by those Members". 4647Mr Muldoon thought

41 Ibid., p. 56. 42 Election Manifesto 43

of the New Zealand Labour Party, authorised by J. Wybrow, General Secretary, Wellington, 1970. p. 7. The Committee members were Mr B.G. Barclay 1922-79, Labour, Christchurch Central 1969-1979;Dr Finlay; Mr Harrison; Rt Hon. K. Holyoake; Rt Hon. N. Kirk; Mr H.R. Lapwood 1915-, National, Rotorua 1960-78; Rt Hon. J. Marshall; Hon. H. Watt; Mr S.A. Whitehead(Kt, 1976) 1907-76, Labour, Nelson 1957-76. Hon. R.L. Bailey 1926-, Labour, Heretaunga 1960-81 replaced Dr Finlay and Mr Hunt replaced Mr Barclay on 20 March. Hon. R Muldoon replaced Mr Lapwood on 17 July. Hon. Mr A.J. Faulkner 1921-85, Labour, Roskill 1957-81 replaced Rt Hon. N.Kirk on 27 August and Mr J. H. Williams 1919-1975, Labour, Wairarapa 1969-75 replaced Mr Bailey on 11 September. 44 S.A. Whitehead, Chairman, Report of the Standing Orders Committee, I.14, 1974, A.R.Shearer, Government Printer. 45 Mr Trevor Davey, 1926-, Labour, Gisborne 1972-75. Mr, L.W. Gandar (Hon. 1972) 1919-, National Manawatu 1966-72, Ruahine 1972-78 Mr C.R. Mayson, 1941-, Labour Hastings 1972-75. Dr. G.A. Wall(Kt 1987) 1936-1993. Labour Porirua 1969-87. 46 NZPD, 8 November 1974, Vol 395, p. 5750-1. 47 Rt Hon. W.E.(Bill) Rowling 1927-(P.C., 1974, KCMG., 1983) Labour. Buller 1962-72, Tasman 1972-84.

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The Period Between The Reforms Of 1962 And 1985 the review was timely, "but it will be clear from the Report that there was not much that needed to be amended on this occasion". The amendments were mostly minor in nature and there had been a tidying up of "anomalies and difficulties that have arisen in the course of the conduct of the House. The changes were considered by the party caucuses at the bequest of the Committee and in most cases they represent the views of both caucuses".48 But there was dissatisfaction in the Labour Caucus due to none of the promises of the 1970 Labour Manifesto being transmitted into wider reform of Parliament. One subsequent Labour Party Policy document has noted this failure. It records the reaction of the Labour Government Caucus in Parliament to a draft of this Report saying: Speaker Whitehead produced it for caucus and using his seniority, attempted to put in their place certain unruly elements who commented unfavourably on its contents. They and many others in the party had certainly expected more. It is to the credit of the leadership which had recently changed, that Stanley Whitehead in turn was corrected. However, it was agreed to go ahead, table the report in the House but make sure that an early opportunity was found for a better attempt. 49Of course, there was no other "early opportunity". There was no new Review of Standing Orders in 1975, at the end of which Labour lost a general election. But this record of a New Zealand Speaker operating inside his party's Caucus while the House was in session is good evidence of how a supposedly impartial Speaker can become involved in "party politics".

5.8. The Changes In 1979 ON 6 OCTOBER 1978, on a Motion of the Prime Minister Rt Hon. Mr Muldoon Mr Muldoon puts his stamp on proceedings.

the House convened a Standing Orders Committee of nine members. This was just before the 1978 General Election which gave National 51 seats, Labour 40 seats and Social Credit one, in an enlarged House of 92 Members. Early in the new Session the Standing Orders Committee was re-convened on 25 May 1979 but had seventeen daily substitutions of members up till the time it finally reported.50 The Report was tabled on 7 November 1979 by Mr Thomson, the Leader of the House, and discussed. He particularly stressed that "the Committee recommends among other things, the reference of all bills to select committees, excepting those of a financial or budgetary nature, or those for which urgency is accorded the passing".51On 13 December, Mr Thomson moved that the House consider the Standing Orders in a Committee of the Whole House. Discussion on this Motion was general but the Hansard provides good opportunity to comment upon Members' views of the proceedings. Also, the lateness of the timing of proceedings stimulated some Members to indicate their strong disapproval. Mr Prebble commented upon bringing this debate forward on the second to last day of the Session as well as the late hour and the lack of scope of the Report, saying "Members of the public believe that there must be a saner way of running the Government than by doing it at midnight---a view shared by the Opposition. The Report is a timid one, which does not tackle any of the major problems facing Parliament".52

48 Ibid., 49

p. 5748. Policy Council, New Zealand Labour Party, Machinery of Government, October 1977, p. 82. Manuscripts and Archives No.89-005. Alexander Turnbull Library, Wellington. 50 The Committee members were the Hon. W.F. Birch(P.C., 1992), 1934-, National, Franklin 1972-78, 1984-, Rangiriri 1978-84; the Hon. J.R. Harrison (Kt, 1980) 1921-, National, Hawkes Bay 1963-84; the Rt Hon. B Talboys(P.C.,1977; C.H., 1981; A.C., 1982) 1921-, National, Wallace 1957-1981; Mr D.C. Thomson, M.C., E. D.,(P.C. 1981) 1915-, National, Stratford 1963-78, Taranaki 1978-84; Mr Jonathan Hunt (P.C., 1989) 1938-, Labour, New Lynn 1966-; the Hon. R.W.Prebble, 1948-, Labour, Auckland Central 1975-; the Rt Hon. W.E.Rowling)P.C,.1974; K.C.M.G., 1983) 1927-, Labour Buller 1962-72, Tasman 1972-84; the Hon. R. Tizard 1924-, Labour, Tamaki 1957-60; Otahuhu 1963-63; Pakuranga 1963-72; Panmure 1972-90. 51 NZPD, 7 November 1979, Vol 427, p. 4138.

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Geoffrey Palmer spoke at length: "The Standing Orders hold the key to the reform of Parliament. Of course, the reform of Parliament holds the key to the whole reform of our system of Government". But he deplored the fact that the proceedings of the Standing Orders Committee were not open to the public and there had been no general public invitation for submissions. He attacked the attitude of the Government to the reforming of Parliament. It was clear, according to Mr Palmer, "that Parliament is to remain a creature of the Executive. It is to remain under a system of Cabinet government that has become so rampant that this institution threatens to become superfluous to the requirements of Cabinet". He commended Mr Prebble for a strong speech expressing the view that this Report "is so timid as to endanger the future of our democracy".53 However, Mr Palmer's subsequent discussion of a submission from the Hansard Service provides an interesting insight into the sort of conduct the House is capable of. He had said that the present organisation and timetabling of the House certainly did put unnecessary strain upon Members. But, ...we find that other people are affected by these problems. The submission that moved me most was the one that came from Hansard. It dealt with accounts of events in last year's Parliament. It is stated on page 1 of the submission: "At 8.50 a.m. on Wednesday, 20 September 1978-19 September in parliamentary time-Hansard reporters were withdrawn from duty on the authority of the Acting Speaker because they were suffering from exhaustion, having worked from 2.30 p.m. on Tuesday, with the only break being the dinner adjournment from 5.30 to 7.30 p.m. One reporter had to be sent home at 2.30 a.m. and another was sent home at 8 a.m. in a state of collapse. The House continued sitting, unreported, but recorded on tapes. The Hansard reporters resumed duty at 2.30 p.m., and the sitting ended at 4.24 p.m., having lasted 26 hours overall". Of course, it is only in Parliament that a day can have more than 24 hours; other human beings have not devised a technique for that yet, and we hope they do not manage it. 54 Members were reacting to circumstances similar to that just described by Mr Palmer. One incident shows the reaction to the lateness of the hour, to the speed and timing of the consideration of the Report as well as showing how any set of frustrated Opposition members can react when it is their turn to witness a Government pushing its rather limited view of reform on to the House. It also shows how the reading of newspapers is allowed and that Members usually sit in specially allotted seats. For example, Hansard records Mr Hunt replying to an interjection from Mr East, Mr JONATHAN HUNT: It is a good thing in a democracy that another point of view should be presented on every possible occasion. Marilyn Waring : Especially such an unpleasant one! Mr JONATHAN HUNT: I ask the Member for Waipa just one question: is she happy with the present Standing Orders? Marilyn Waring: I do not like the quorum. Mr JONATHAN HUNT: Once again the Member is retiring behind her newspaper. Marilyn Waring : I answered. I said I do not like the quoru Mr JONATHAN HUNT: The Member does not like the quorum. In other words she does not like participating in the debate. I suggest she refer that matter to the Prime Minister. I point out to the Member for Rotorua (Mr East), who is trying to interject from a seat more 52 NZPD, 13 December 53 Ibid., p. 4820. 54

1979, Vol 428, p. 4810.

Ibid., p. 4820-1.

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favourably placed than the one he should be occupying, that I was very interested in serving on the Committee. It was the third such Committee I have served on. Mr Beetham: Is that why so little progress was made? Marilyn Waring: Hear, hear! At which stage the Speaker moved in to redirect the debate.55 The House went into the Committee of the Whole House to pass the amended Standing Orders, with the Speaker now acting as a Minister in charge of a Bill. Unlike previous debates on the Committee stage of a Standing Orders Committee report there was no attempt to provide a verbatim transcript of proceedings, possibly owing to the fact that this "in Committee" debate started after midnight on the early morning of the last day of the Session. However, credit must be given more than one member of the Parliamentary Press Gallery for having the fortitude to remain present at that late hour, and sufficiently alert in order to cover these proceedings. The result was that the reports were very critical. One newspaper described the scene thus, At 1.25 a.m., the Speaker the Hon. J.R. Harrison, left the chair and the Chairman of Committees, Mr J.F.Luxton, took over. Immediately, Mr Harrison, minus his long wig and gown, returned to sit beside Mr Luxton to guide the report's progress. Some Members were angry that the reform of Standing Orders was being enacted at such a late hour. The Deputy Leader of the Opposition, Mr Lange, said the hour made a mockery of Parliament. Mr Minogue said he was so tired and so past concentration and the entire exercise had become meaningless. "We are participants in a farce" he thundered By 2 a.m. many Members were asleep, although a division forced by Mr B.C. Beetham a few minutes later caused some rude awakenings. The Report was finally agreed to at 2.32 a.m. Mr Harrison left, to return as Mr Speaker. Mr Luxton "reported" the Standing Orders to him "with amendments". After a quick vote, the House rose at 2.37 a.m.56 One newspaper ran an article headed "'Timid' Changes in Running of Parliament".57Another even reached to its editorial space to castigate Members for "some of the anachronisms" found in the Parliamentary rule-book. One was the prohibition on note-taking so carried to extreme that "many a school child, on an organised visit to Parliament, has been reduced to tears when reprimanded by the galleries' guardians for taking notes to carry back to the class-room". It also reserved strong criticism for the strange hours of the day the House often cared to work saying, "Till it addresses itself to what the public has long regarded as one of the barriers to more sane government however, the hours of sitting, it might be seen as merely toying with the problems that exist".58And one journal opined over the practice of putting "only senior Members on the Standing Orders Committee, i.e. men who invariably find the present body politic quite attractive and resent newcomers demanding facelifts".59 One analysis was very pointed over the inadequacies of the reform process and parliamentary procedure. "Not for the first time, the Standing Orders Committee of Parliament has laboured mightily and produced a mouse". It pointed out that, judging by the seniority of some of the Members chosen,

55

Ibid., p. 4817, Mr B.C. Beetham 1936-, Social Credit, Rangitikei 1978-84; Ms M. J. Waring 1952-, National, Raglan 1975-78; Waipa 1978-84. Note that Hansard places the names of interjecting Members in the lower case. 56 Parliamentary Reporter, "Standing Orders Debate Timing Called Mockery", New Zealand Herald, Saturday, December 15, 1979. 57 Evening Post, 8 November 1979. 58 "Relic for rubbishing", Main Editorial, The Dominion, November 8, 1979. 59 Tom Scott's political notebook, "Orders are orders", New Zealand Listener, December 1, 1979.

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this Committee was a powerful one "had it been left alone to operate". For the report noted that between 2 March and 17 October "there had been no fewer than 17 changes of membership". Furthermore, it said, This highlights one of the faults of the select committee system, as applied in New Zealand. Various committees change their members entirely during the course of a year, as members pull out for other commitments, such as overseas trips. Under these circumstances it is difficult for a committee to hew to one line, or to develop one theme. 60 The review of Standing Orders in 1979 certainly did usher in changes but they were minor. Among these, the House would now start at 9.30 a.m. instead of 9 a.m. the radio could now use excerpts from the broadcasting of Parliament in news bulletins; the Statutes Revision Committee could now instigate inquiries into regulations; there would be regular meal breaks when "in urgency" after midnight. But this showed that "urgency" could still be used at will by any Government. It was also agreed that now all government bills would go to select committees; but there was no consideration in this 1979 exercise of the future staffing requirements of select committees with their planned increased work load. However, there were still exceptions reserved to this rule of sending all No select committee hearings for 'urgent' or finance bills. government bills to select committees. This involved all bills placed under "urgency" or of a financial or monetary nature. These were to be handled solely in the Committee of the Whole House without detailed study and public interaction or notice. This ensured that such an important class of bill, particularly those handling economic and financial affairs, could be just rushed through the House with any Government not properly being called to account.

5.9. The National Development Bill 1979 THERE WAS one particular episode during the term of the Muldoon Government that provides another excellent window into the behaviour of the politicians of that time. This occurred during the introduction and passing of the National Development Bill. The purpose of this Bill was to "fast-track" the introduction of new energy and industrial projects planned by the Muldoon Government. The Bill was introduced into the House on 5 October 1979 by the Hon. W.F. Birch, Minister of National Development. Explaining the main purpose of the Bill, he said: The Bill allows for major development projects to be declared works of national importance, and provides for a shortened and consolidated procedure for obtaining all appropriate statutory consents. A copy of the Bill was released last night to Opposition members for their consideration. In the near future the country is likely to see a number of major developments that will be vital to our future economic well-being and that will contribute greatly to the Government's objective of achieving greater self-sufficiency in the production of energy and other resources. Long delays in obtaining consents and approvals for such projects are a real possibility under present procedures, and such delays could not only be extremely costly, but could also undermine the viability of the project. Although the Government is conscious

60

Cedric Mentiplay, "Parliament tinkers with the rules", The Press, Christchurch. 19 November 1979.

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of the serious risk of unaffordable delays, it does not want to have large-scale proposals rushed through without proper public scrutiny. The new system provided in the Bill simply shortens the time taken, and eliminates the potential delay inherent in a large number of separate procedures by consolidating the examination of the proposal and the issuing of appropriate consents into one procedure. 61 This discussion cannot go into the fine detail of this Bill. Substantially, the Muldoon Government was to negotiate with certain private sector interests to push ahead with these energy and industrial projects. The Town and Country Planning Act could have been used, but neither allowed "fast-track" procedures nor did it confer such strong interventionary powers on the part of the Minister of National Development, or any ministers, as planned under this new Bill. But as previously stated, this episode does provide opportunity to view the behaviour of politicians, from both side of the House. First, it must be noted that even before the Bill was introduced into the House, the Minister saw no breach of convention or Standing Order in providing copies of it to members of the Opposition the previous day; neither did those recipients of the Bill see anything untoward in this. The second point must be made over the "fast-track" procedure thought necessary by the Muldoon Government. This seems to be nothing more than an extension of the altering of the rules over urgency by that previous National administration under Prime Minister Sidney Holland in 1951. Another point must be made around this term "national importance" as being applied to these new energy and industrial projects. Mr Birch, with his title of Minister of National Development, made great play on this term, and the importance of the planned projects. In his first reading speech, he said: Such applications[to the Planning Tribunal] must be accompanied by full details of why the proposed work is considered to qualify as work of national importance, together with a full description and plans of the site and method of construction, a statement of the economic, social, and environmental effects of the proposed work, and a list of the statutory consents sought.62 Yet, while these proposed works were to be classed as of "national importance", and the Planning Tribunal was to be given full details of important criteria that fell within "national" guidelines, no part of these details were to be considered by the House of Representatives. When these projects did appear, at least in the planning stage, several of them were massive, in the New Zealand "national" context, with varied effects far outside the regions they were located. The Opposition Labour members did bring up the question of the House of Representatives handling aspects of the final consent process. Geoffrey Palmer declaimed that this Bill did represent "a considerable centralisation of power to the Executive-a power that should be checked by Parliament. After all, that is the function of Parliament". He continued: In a supplementary submission from the Planning Council, Sir Frank Holmes said that "the principle of the fast track could be still adhered to if the Order in Council were laid before Parliament with the provision that it could take effect only when ap61

NZPD, Vol. 426 p. 3352, By Authority:

P.D. Hasselberg, Government Printer. 1980. 62 Ibid.

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proved by affirmative resolution of the House." Opposition members now ask that the Government earnestly consider a place for Parliament in the legislation greater than that which it has been given so far....The protections against delegated legislation are little short of derisory, and it is no use Parliament complaining about an Order in Council once it becomes law. The Opposition believes that Parliament should debate it before it becomes law. 63 Needless to say, these Opposition ideas of better controlling the powers of the Executive came to naught. But it must be mentioned here that such innovations in parliamentary procedure, as put forward by Mr Palmer as representing Opposition policy, were certainly not introduced when Labour finally came to power in 1984. Also, in the New Zealand context, after 1984 they added new meaning and depth themselves to the term "fast-track", as subsequent chapters of this thesis clearly show. And those of the Labour team, while denouncing the Muldoon Government's method of the introduction of these planned energy and industrial projects, were themselves, when finally part of the 1984-90 Lange-Palmer administration, at the forefront of selling off, without prior parliamentary examination, many assets that could be classed as having "national importance". Of particular note were the lawyers David Lange, Geoffrey Palmer, Richard Prebble and David Caygill, vociferous in the House while speaking against this National Development Bill. This Bill aroused wide controversy, with wide press comment. The best description of this episode is found in a booklet put out by a Mr Harold Evans, retired stipendiary magistrate. 64He showed that prominent among the critics were Sir Alexander Turner, retired President of the Court of Appeal, Sir Guy Powles, retired Ombudsman and Mr Henry Lang, a retired Secretary of Treasury. But the main point made by Mr Evans, was that the select committee inquiry process had been put into disrepute by the action of the Prime Minister, R.D. Muldoon. He said, in his Foreword: I believe that the case against fast footwork in the art of government has only to be stated to be proved. But it has to stated: sometimes in much detail and, for truest perspective, in relation to particular circumstances. Here, all too speedily written - speed being dictated by the fast footworkers themselves - is my contribution to the case. It consists, in the main, of the record of my attempt to present full submissions to a Select Committee on the fundamental question of its role in relation to the Executive: a matter arising not theoretically or hypothetic63

NZPD, Vol. 427. p. 4489. Printed by Authority of P.D. Hasselberg, Government Printer. 1980. Please note that Sir Frank Holmes was Chairman of the New Zealand Planning Council. 64 Harold Evans, THE CASE AGAINST FAST FOOTWORK, National Development Bill 1979, Christchurch. 1979. pp. 30.

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ally, but directly out of the Prime Minister's publicly expressed determination on 25th October that the National Development Bill shall proceed through its Select Committee stages unaltered in principle, and be given the stamp of Parliamentary approval (and the Royal Assent) before Christmas. 65 As Mr Evans illustrates, if the Executive in New Zealand wishes to "fast track" anything through the House, be it special Bills, or even finance legislation, there is very little any person or group can do. In this instance, the Government suddenly stopped the select committee hearings, with many prominent persons and groups unheard, used urgency in the House, this ensuring that the Prime Minister's timetable was adhered to.

5.10. Conclusion THIS EXAMINATION of the various reviews of Standing Orders in the period Extra work with the same amount of resources.

between 1962 and 1985 provides a good insight into the process and protocol of the House. One is impressed with the number of ideas for reform coming from Members when speaking in the House during the consideration of the various Standing Orders Committee reports. Many of these ideas came from private observation of the operation of other Parliaments. Notable was the plea for formal procedures for the special scrutiny of statutory bodies. Also, there was a request for full recording of the proceedings of committees. However, these ideas for improvement only came after the deliberations of the various Standing Orders Committees. This does tend to show that the operations of these Committees were very much closed affairs even to the wider body of Members of the House. New Zealand practice has not developed the tradition overseas of allowing, even encouraging, all Members to make formal submissions on their ideas for reform. Note must be made of the removal in 1968 of the Supply and Ways and Means procedures. This allowed financial and economic matters to become more under the domination of the Executive. Instead, they could have followed the lead of some of their more progressive Members who had obviously been doing their own private observing of overseas Parliaments. Sir Leslie Munro rightly reminded them they were turning their backs on 300 years of tradition of calling the Executive to account. But as these changes were a relatively closed affair there was naturally no public outcry led by such as constitutional lawyers and political scientists. The 1979 Standing Orders exercise resulted in the sending of most bills to select committees. However, no administrative changes seem to have been made to provide select committees with more resources to handle the extra work-load from the public submissions and hearings. This shows up the lack of any set of "management" select committees, as overseas. These would have had an integrated overview of the operations of the House and alerted its administrators to the need for more resources and new systems to cope with this increased workload. But this was not forthcoming.

65

Ibid. p. 3.

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Chapter 6. Report Of The Select Committee On Standing Orders 1985 IN AUGUST 1984 the New Zealand Labour Party became the Government. Its A new dawn arrives, but is there light?

majority was seventeen in a 95 seat House.1Its spokespersons had long signalled their intentions to reform radically the procedures of Parliament. Foremost among these were David Lange, Labour's leader, and Geoffrey Palmer, its deputy leader. Both had had careers in law before entering politics, Mr Lange as a civil barrister and Mr Palmer as a university law lecturer and professor specialising in constitutional law.2 Mr Palmer was in the forefront of Labour's thrust to show how that Party considered much of the system unsatisfactory and needed changing. In 1979, while still a law lecturer, he wrote a book, Unbridled Power? which spelt out his views on reform.3On becoming a Member of Parliament he made many speeches on variations around this theme. One of his first speeches was given on 6 December 1980 titled The Labour Party Policy on Freedom of Information.4 Both Mr Lange and Mr Palmer had made it quite clear that, if given power, they and their Party would radically reform Parliament. This would improve the accountability of both ministers and the bureaucracy to Parliament. It would also allow the citizen greater opportunity to share in decision-making through making the process of government much more open to submissions. As part of this planned set of policies they were to promote the field of human rights. Labour's approach was to be a complete break with the past.

6.1. Labour's New Policies

1 Party 2

MPs were 56 Labour, 37 National and 2 Social Credit. Mr D R Lange, BA, Ll.M, University of Auckland. Barrister and Solicitor. Entered Parliament, 26 March 1977. Dr G W R Palmer, BA Ll.B. Victoria University of Wellington. J D, University of Chicago. Solicitor. Entered Parliament 18 August 1979. Who's Who in New Zealand. 1991. 3 Palmer, G W R, Unbridled Power?, Oxford University Press, Wellington, 1979. 4 For example see also The Labour Party Policy on Human Rights and Civil Liberties, 14 March 1981, The Labour Party Policy on Reform of Parliament and Electoral Law, 13 May 1981, Open Government and Economic Management, 29 June 1981, Constitutional Change in New Zealand, 3 August 1983. Also by Mr Lange, Speech to the Annual Conference of the New Zealand Worker's Union, 18 April 1983.

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Report Of The Select Committee On Standing Orders 1985 ON 2 APRIL 1984 David Lange gave a speech unveiling Labour's planned policy Lange's brave new world to come.

for Open Government:The Labour Plan for Democracy in Government. This dealt strongly with its intention to reform Parliament along new lines. He used examples from overseas, thought worth copying. And he injected new moral and legal principles, namely: Today's policy deals with the whole question of Parliamentary management and accountability, leading to a new style of government for New Zealand...for too long the government in this country has operated bereft of principle, responsibility and accountability. Power has become seriously concentrated. The role of Parliament has been seriously undermined. Public administration has been subject to political abuse. The rule of law has been praised when it suits the government's convenience and abused when it doesn't.5 Mr Lange's address was directed towards a new moral relationship, particularly through Parliament, with the New Zealand community. He used phrases as, "Too little trust and information sharing now takes place... We will take as many people as we can with us in administering the affairs of this country. And that means information, involvement and the guarantee that certain principles will be adhered to by government". Parliament was given a special place in this policy. He said, "The New Zealand Parliamentary system is out-of-date, inefficient and basically anti-democratic". It had "fallen into disrepute, particularly among young people. The New Zealand Parliament is a 19th century institution". Mr Lange also drew attention to the fact that "Parliaments overseas have taken radical measures to modernise and make themselves relevant". He quoted such items as the abolition of late-night sittings. He stressed the need to research overseas practice to glean ideas to greatly improve "parliamentary accountability". For what were proposed in this Policy Document was very wide, innovative constitutional reforms. For instance, he said that they had examined in depth the programmes of other Parliaments. What Labour is proposing is practical and workable and vital if Parliament is to have any relevance at all. Many of Labour's proposed reforms have been tried and proved in the UK, Canada and Australia, and the United States. We have taken the best of the reforms overseas and adapted them to meet our unique Parliamentary tradition.6 Labour's investigations had shown that "progressive" institutions such as Westminster and the United States Congress had "set up Parliamentary select committees with real power to examine government programmes and to scrutinise in a meaningful and businesslike fashion the activities of the bureaucracy". Also admired was the use of a laid down "set calendar" which has helped to eliminate any end of session legislative rush. The centre-point of these wide sweeping reforms was to be a new select committee system. The Wellington structures were to be completely reorganised and be given "greatly enhanced power over the executive and bureaucracy. The changes will be similar to those successfully adopted in the House of Commons in Britain".

5

David Lange, Open Government:the Labour Plan for Democracy in Government, New Zealand Labour Party, Wellington. April 2, 1984. p. 1. 6 Lange, p. 4.

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This Policy Speech of David Lange was quite uncompromising and unequivocal in its attitude to reform. A completely new element was to be injected into the present constitutional arrangements. Labour had apparently done much work on this project. Parliament was to be, as it were, rescued from the very low point it now occupied in the estimation of many of the community. It was to be given powers no previous New Zealand Government had dared contemplate delegating to it. For instance, Cabinet was to be made once more accountable to Parliament. A very serious situation needed urgent measures and any new Labour Government was prepared to take them...The truth is that today government is out of Parliament's control. Labour's policy will give Parliament the power to act as a real check on the executive and the bureaucracy...A Labour Government is prepared to accept the limitations on its power that this programme will produce because we recognise that no one party has all the answers. Labour believes that if a government programme is good, then it will stand up to scrutiny, and if it isn't the sooner it's scrutinised and found wanting and rejected, the better. It's not a new idea. It's called democracy, and its time New Zealand tried it.7 Mr Lange's 1984 speech and policy release were the end result of much Labour Party work preparing for this new constitutional framework.8 There was also a commitment to establish a Royal Commission to look at the whole of the electoral system. This had a very wide brief including the question of whether proportional representation should be introduced. It was to examine the place of state funding of political parties, if there were defects in the procedures for electing MPs, the method of fixing the boundaries of electorates as well as whether the life of Parliament should be increased from three to four years. A very full review of the electoral procedures was promised.9 Prominent in this Labour Party policy development work was Geoffrey Palmer. He had long espoused the need for radical reform of Parliament. His book Unbridled Power? had spelt out how government management and the constitution, particularly related to Parliament, should be drastically changed on completely new lines.10On entering Parliament in 1979 for Labour, Mr Palmer made many speeches on Geoffrey Palmer lays down his approach.

these subjects. He acted first as the Shadow Minister for Constitutional Affairs, and at the 1984 election was the Deputy Leader of the Labour Opposition. On 1 December 1983 he spoke on aspects of reforming Parliament.11 He saw the key to reform of the New Zealand Government in the reform of Parliament. The focal point of this was to be in a new select committee system. He commended the four year experience of the British House of Commons with their new committee system. He had examined this and said that many of its features were needed for New Zealand use. One reason for change was that New Zealand had no second House, which he did not advocate, "but because we do not have one it is necessary to ensure that we do have adequate checks and balances within our Parliamentary system".12 However, Mr Palmer seemed to have drawn the wrong conclusions about two important matters inherent to the British House of Commons. One was that he assumed that in the larger Westminster House of 650 members, the Executive had less power relative to that in New Zealand. "Because there are so many Members of Parliament in the United Kingdom it is much more difficult for the Government to domin7 Lange, 8

p. 7. "Open Government Policy:The Labour Plan for Democracy in Government", 1984 Policy Document, New Zealand Labour Party, Wellington. 1984. pp. 63-66. 9 Ibid., p. 66. 10 G W R Palmer, Unbridled Power?, Oxford University Press, Wellington. 1979. 11 G.W.R.Palmer, at the Annual General Meeting of the Wellington Branch of the International Commission of Jurists, A Recipe to Change New Zealand's System of Government---Adopt a Bill of Rights and Reform Parliament, at the Council Room, New Zealand Law Society, Wellington, 1 December 1983. 12 Palmer, A Recipe to Change, p. 15.

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Report Of The Select Committee On Standing Orders 1985 ate the House of Commons". 13 But Hetzner says of the Commons, the Prime Minister has tremendous patronage at his or her disposal, over 100 paid ministerial posts and numerous unpaid parliamentary private secretaries and whips who are subject to collective responsibility in their parliamentary voting as well as a host of honorary titles for bestowal on the party faithful in Parliament.14 The other point which Palmer seems to have misinterpreted involves the reasons for the apparently greater freedom that Members have at Westminster. There are two aspects of this. One is the difference between the whipping systems of Westminster and Wellington. At Westminster it is customary for all parties to operate what is called a "three line" whip rule. This allows certain degrees of freedom for members except at the No 3 level where absolute loyalty is expected on such occasions as votes on financial measures. The other aspect involves the growth of dissent among backbenchers over the last thirty years. This is, ...as we have noted, not attributable to any single cause. But some emphasis must be placed on the decline in numbers of old-style rural Conservative and trade union Labour Members who were largely content to give loyal backing to their party. In both parties it may be that more of those recently elected look upon their Membership of Parliament as being their principal career and the House of Commons now provides the procedure and structures within which such back bench activity can be more vigorously pursued. So also, demands from constituents have increased. In these senses Members have gained in status (though not necessarily in popularity) and this may have led them to be more willing to criticise their leaders.15 In 1983 neither National or Labour Members of the New Zealand House of Representatives had any real freedom to vote outside party directives.16 National makes great play of the freedom it allows its members. They have had occasional Members like Michael Minogue and Marilyn Waring crossing the floor. But Jackson says " In practice, National MPs are committed to loyalty to the leader of the party and since the leader is chairman of caucus the practical differences are less than they at first appear".17 Labour has Rule 242 of their Constitution which expressly forbids voting against laid-down party policy. Control by the Wellington whips over Members is almost universally absolute. But if a "conscience" vote is allowed free voting is permitted. A key aspect of Palmer's proposals concerned the operation of the select committee system. He was convinced that the Labour Party, given power, needed to install a system similar to that of Westminster. He said, I spent many hours in Westminster on my visit interviewing Committee Clerks, MPs, civil servants and others on the performance of the new system. Everyone I spoke to believes the system to have been a success. I spoke to no-one who was critical of it. 18 In 1977-78, the Westminster reforms involved the creation of fourteen new departmentally related select committees. Mr Palmer seems to have been confused about the role of other very important permanent select committees of Westminster. For instance, he says, "Indeed, the Public Accounts Committee, first established in 1961, is always chaired by an Opposition Member". 19 It was 13 Ibid. 14

C Hetzner,"Accounting and Accountability:Bottom Lines and Basic Mistakes", International Journal of Public Administration, Marcel Dekker Journals, New York. 12(4), 1989. p. 602. 15 Griffith, Ryle and Wheeler-booth, p. 130. also see Philip Norton, Ed., "Backbench Independence in the 1980s", Chapter 2, Parliament in the 1980s, B. Blackwell, Oxford, 1985 and Philip Norton, Conservative Dissidents. Temple Smith, London, 1978. 16 See Lipson, p. 340. By contrast party splits between 1882 and 1912 saw "that one-quarter and over of declared party members voted on the opposite side to the rest of their colleagues". 17 Keith Jackson, The Dilemma of Parliament, p. 49. 18 Palmer, A Recipe to Change, p. 19.

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Report Of The Select Committee On Standing Orders 1985 Mr Gladstone gets a mention.

actually set up by Mr Gladstone in 1861, not 1961 and was not one of the Committees involved in the 1978 reforms. Needless to say, this Committee is an essential part of the total Westminster system. Its long-standing duties include providing the British Controller and Auditor-General, as a Parliamentary Officer, with a window into the auditing and inquisitorial functions of Westminster. [See Chapter IV]. Even Ottawa and Brisbane have such committees now, and at Canberra there is a Joint House Committee on Public Accounts. It is not known why Palmer mentioned this Committee as it is not included in the reforms he installed in Wellington. A wider view of the total system of committees at Westminster is provided by Mr David Pring. In discussing these 1978 reforms he says, In addition, eleven existing committees continued in being (and while so much A Westminster view of proceedings.

attention was to centre on the new committees, it cannot be emphasised too much how the House has continued to rely on what those other, older committees do for it; the true proof of their worth is that at a time of upheaval, the House needed them to survive). 20 Sadly, Mr Palmer and the Labour Party ignored the rest of the Westminster committee structures. Mr Palmer also seems to have rather misunderstood the role of backbenchers at Westminster in proposing reforms for their House. "Procedure" committees had been convened for years for the purpose of reviewing the Standing Orders. But they are only composed of backbenchers. This is due in major part to the reason, already stated here, that in Westminster and Ottawa those whose only role is that of Member of the House are allowed to deal with improving the procedures of the House. Members who have been appointed to any executive post cannot be on a committee which puts together the rules designed to call that executive to account. Mr Palmer commended the practice of examining Ministers by the new Committees. In New Zealand, Ministers often had been members of Committees "examining material put up by their departments. Their understanding and ability is never put to the test in public before a Parliamentary Committee. In my judgement there are a number of New Zealand Ministers who could not survive such a test". He also noted the close interrogation of public servants by the new Westminster Committees. The scrutiny of statutory corporations [Quangos] had improved. The three-year internal review he quoted from noted the improvements. Its recommendations "were to expand and enhance the work of the new system". He explained much of the improvement down to the fact of the Committees, having been given greatly increased individual budgets, allowing the employment of high quality specialist staff.21 Mr Palmer had also examined the move to give the House of Commons completely "stand-alone" management under its own Commission controlled by a Speaker. Also he commended new Westminster practices concerned with scrutiny of economic and financial policy. These should be copied. He said, Continuous monitoring and scrutiny of Government borrowing should be undertaken by the Public Expenditure Committee. The Minister of Finance and Treasury should supply monthly reports to the Committee on borrowing. The

19 Palmer, 20

A Recipe to Change, p. 21. David Pring, CB, MC,, Clerk of Committees, House of Commons, United Kingdom, "The New Select Committee System at Westminster", The Parliamentarian, Commonwealth Parliamentary Association, London. Vol LXIV, No 2, April 1983. p. 57. 21 Palmer, A Recipe to Change, pp. 21-23.

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Committee should also examine borrowing by Government owned industries and other public corporations. Borrowing is a substitute for taxation. Parliament must have some ability to scrutinise Government borrowing.22 Mr Palmer drew comparisons between the New Zealand system and how "the new Select Committee system in the United Kingdom Parliament has profoundly affected the relationship between Parliament and the civil service. It has profoundly affected the relationship between Parliament and Ministers of the Crown. It has whittled away some of the power of the Executive". But the "New Zealand scene comprises a dominant Executive able to control the limits of Parliamentary criticism with very little possibility of those limits being effectively advanced. The sterile pattern must be broken...A proper Select Committee system can provide for New Zealand all the advantages of a second house with none of the disadvantages". And he would have left his listeners with the very clear impression, as did his Leader on the following 2 April 1984, that given power, the Labour Party would have as one of its most important tasks the transforming of Parliament, both in its procedures, its civic effectiveness and the level it stood in public estimation.23 Labour's 1984 Election Manifesto promoted this new approach to the working Labour's forward thinking on procedures.

of Parliament. Opposition Members were to chair some committees and Parliament was to have a "public record", with the proceedings of the Select Committees being recorded. Also great changes were to be introduced into parliamentary accountability in relation to the responsibilities of the Minister of Finance and Treasury. There was to be "a more democratic approach to economic management", and the Standing Orders would "ensure that a determined Executive cannot dominate Parliament". Specific changes would boost the power of the Select Committee on Public Expenditure. The more important policy planks were: The Committee's role will be expanded "in order to ensure that the financial accountability of Government to Parliament is adequate". There will be "continuous monitoring and scrutiny of Government borrowing". "To facilitate accountability and planning, forward estimates of expenditure will be published". Labour will "require public servants to appear before them in public and request any Minister to do so".24 The continuity between the speeches of Lange and Palmer is clear. And a connection clearly exists in the subsequent Labour Party Manifesto with the previous interest expressed by Lange and Palmer about parliamentary practice at Westminster.

6.2. The 1985 Standing Orders Committee THE LABOUR Government came to power in August 1984 and appointed its nominee The same old process.

22 Ibid,. 23 Ibid., 24

p. 38. p. 26. Labour Manifesto, pp. 14, 63 and 64.

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as Speaker. He was Sir Basil Arthur, Labour Member for Timaru. The bi-partisan approach from Westminster, so lauded by Mr Palmer, was not adopted. National MP Rob Munro drew attention to Labour's "political" Speaker. He said there was a need to show urgently that he was "not merely the nominee of the Executive Branch".25But Mr Palmer was now Leader of the House before whom the acceptance and enthroning of the new Speaker took place. The next step was the convening of a Standing Orders Committee to review the procedures of the House. This was chaired by Sir Basil Arthur, the new Speaker, a procedure not permitted either at Westminster or Ottawa, as previously stated. At Westminster the procedure committees can obtain input from the Office of the Speaker by using one or more of the Speaker's Counsels. Ottawa Speakers usually appear before their procedure committee. Ottawa also has a Standing Committee on Management and Members' Services where, "in camera", "Members can invite the Speaker to appear and discuss any complaints or concerns they may have about the administration of the House". 26But in New Zealand the House has no formal method of monitoring the role and Office of the Speaker. The next deviation from the promised House of Commons practice saw Wellington's Standing Orders Committee tainted with "executive presence".27The Speaker chaired it and membership since 1984 has included Ministers like Mr Palmer and the Hon. Stan Rodger, the Deputy Speaker and Chairman of Committees, Mr Terris and party whips. But an opinion from Westminster stated that None of these [procedure] committees has a Minister or the Speaker as a member.28 And an opinion from Ottawa discussing the recent 1985 Ottawa McGrath Committee on Procedure also confirmed that, The members of the Committee were, at the time of the Third Report, all backbenchers. However two members, the Hon. James A McGrath and the Hon. AndrĂŠ Ouellet, had previously been Ministers of the Crown. None of the members of the Committee were the Whips or House Leaders of their political parties. The Speaker was not a member of the Committee and in no way controlled their proceedings. He did appear as a witness, as did many other Members of Parliament.29 Labour, in contrast, installed a "political" Speaker. He was in a position of strategic influence and supported by Government Ministers and his Deputy on the Standing Orders Committee. Moreover, he, and the Clerk of the House serving him and the House, did not at all have to contend with structures, de rigueur at Westminster and Ottawa. As senior House administrators, they should have been under an obligation to remain apart from any Standing Orders Committee and, if needed, to report to such an examining Committee and possibly be questioned over their duties to the House and its Members.

25 Tom McRae, "Executive still running the whole shooting works", National Business Review, 15 December 1988. 26 Personal correspondence from Dr C.B. Koester, Clerk of the House of Commons, Ottawa. October 15, 1988. 27

Members were the Hon. Sir Basil Arthur, Bt(1928-85), Labour, Timaru, 1962-85; Mr M.E.C. Cox(1939-), National, Manawatu, 1978-87; Dr the Hon. M.J. Cullen(1945-), Labour, St. Kilda, 1981-; the Hon. Mr Hunt, Mr G.T. Knapp(1947-), Democrat, East Coast Bays, 1980-1987; the Rt Hon. Robert Muldoon, the Hon. J. McLay(1945-), Q.S.O. 1987, the Rt Hon. D.C. McKinnon, P.C 1992, (1939-), National, Albany, 1978-; the Rt. Hon. Mr Palmer, the Hon. R. Prebble(1948-), Labour, Auckland Central, 1975-; the Hon. F.H. Wilde(1948-), Labour, Wellington Central, 1981-1992. 28 Personal correspondence from Mr Robert Rogers, Deputy Principal Clerk, House of Commons, Westminster, 24 September 1987. 29 Personal correspondence from Miss Audrey O'Brien, Principal Clerk, House of Commons, Ottawa, October 14, 1987.

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6.3. The Report Is Tabled THE 1985 REPORT of the Standing Orders Committee was tabled on 16 July 1985. 30 A totally new committee system.

It had received 15 submissions and five of those giving submissions were called for questioning. It was debated upon the same day and the procedures used were very similar to those adopted in 1951 and 1962. Leave of the House was granted for recording and publishing a verbatim transcript of proceedings. Mr Palmer was the Leader of the House. He advocated the general acceptance of the structural aspect of the reforms. These were to put in place 13 new select committees. The Public Expenditure Committee was abolished and the new select committees were to servi Commerce and Marketing. Communications and Road Safety. Education and Science. Finance and Expenditure. Foreign Affairs and Defence. Government Administration. Internal Affairs and Local Government. Justice and Law Reform. Labour. Maori Affairs. Planning and Development. Primary Production. Social Services There were also a Business Committee to review the work of the select committees, a Regulations Review Committee and a Privileges Committee. All sixteen committees were to be appointed at the beginning of each Parliament. An Opposition Chair was only given to the Regulations Review Committee, not a fifty per cent allocation as at Westminster. The Standing Orders Committee was only appointed on an ad hoc basis and its terms of reference were not mentioned at all in the new Standing Orders. Neither were there any committees mentioned covering House or parliamentary administration such as a Library Committee or the customary House Committee covering entertainment of Members and their guests. Neither was there any "audit" committee chaired by an Opposition Member. Also Mr Palmer had not advocated the use of special standing committees to handle legislation, as at Westminster. His departmentally related committees were to be generalist in nature and were expected to handle legislation, inquiries, and the audit function, all inside the same structure. Mr Palmer opened the debate. He said:

30

NZPD, 16 July 1985, Vol 464, pp. 5596-5613.

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The powers of the select committees will be greatly enhanced, and there will be an opportunity for effective parliamentary scrutiny of Government, not just for the parliamentary scrutiny of legislation...there can be regular and systematic monitoring of the policy implementation, expenditure, and administration activities of government departments and related organisations. There can be detailed investigation into specific issues, and committees can investigate those issues on their own motions...The changes will be able to build on the success that this Parliament has had with the scrutinising of legislation, which is amongst the most advanced in the world. It adds the continuing scrutiny of Government policy and departmental administration and expenditure. That continuing jurisdiction will be very important.31 Mr Palmer was correct about the standard of scrutiny of legislation. Full public submissions were to be allowed on all Government bills. But the new select committees were to have a majority of Government Members and Government Chairpersons. And the old provisos applying "urgency", and the fact that, if a Bill was a Money Bill, no select committee hearing would eventuate, could still be used. This would ensure that Bills with financial or economic implications would not receive the deeper scrutiny that the select committee, or standing committee process as used overseas, would give. No attempt was made to inject procedural reforms into the committee process along the lines of Parliaments so admired by Lange and Palmer before the 1984 election. For instance, no daily Journal of Record for committees was instituted. No full recording of Parliament's proceedings was installed, as per Labour's 1984 Manifesto or as even requested in one of the oral submissions to the Standing Orders Committee. 32 An executive dominated Standing Orders Committee had, despite the pre-election bravura of Labour's intentions, naturally done little to make that executive any more accountable than in the past.

6.4. A New Era Of Management For Parliament LABOUR ALSO changed Parliament's management by replacing the ministerially The House to manage itself, so it thought!

controlled Legislative Department with a Commission. Labour claimed it would be modelled on British House of Commons experience and said that this new Commission would give the New Zealand House of Representatives administrative independence from the Executive Branch. This was forecast in Labour's 1984 Manifesto. For as Mr Palmer said, following his Grand Tour of the Palace of Westminster, The House of Commons is run by a House of Commons Commission...We need to learn from what the Australians have done and what the House of Commons have done. There has never been a Legislative Department in the United Kingdom. The Commission appoints all staff servicing the House, determines their numbers, their remuneration and other terms and conditions of service. Included within its responsibilities are the Clerk's Office, the Library, The Speaker's Office, Hansard, and administration...It is evident the arrangements in the House of Commons remove from the Executive Branch decisions about the administration of Parliament and the servicing of its Members. Such a position is clear recognition of the fact that the position of Parliament and the Executive Government are different. It is quite unacceptable for Parliament in its administration to be under the yoke of the Executive Government. Yet that

31 NZPD, 32

16 July 1985, Vol 464, pp. 5600-5601. See written submission No. 4 to the Standing Orders Review by Tom McRae.

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remains the position in New Zealand. In New Zealand we must get rid of the Legislative Department. We must replace it with a form of administration similar to that in the House of Commons. The Australians have done it. 33 Mr Palmer was quite correct. The Westminster Commissions's Act says: The Commission shall ensure that the complementing, grading and pay of staff in the House Departments are kept broadly in line [Emphasis added.] with those in the Home Civil Service, and that as far as consistent with the requirements of the House of Commons, the other conditions of service of staff in the House Departments are also kept broadly in line [Emphasis added.] with those in the Home Civil Service.34 The House of Commons(Administration) Act , 1978 provided the basis for granting to the Members of the House the right to elect their own Commission, instead of the past practice of having one imposed on them from outside by the Executive. Also, as this excerpt from its Act shows, the Commission would become the direct employer of those "in the House departments" running the institution. Moreover, "management" select committees would parallel the role of the Commission. This would allow Members to be directly responsible for aspects of the management of the House and its ancillary functions, as well as to act as a check upon the new Commission. But Mr Palmer's analysis had missed out these important public select committees and allowed these "management" functions to be the internal property of the new Commission, itself dominated by the New Zealand Executive and its departmental influences. Thus, the New Zealand Parliamentary Service Commission was not granted the independence of its U.K. House of Commons and Ottawa counterparts. It came into being in 1985 amid some public controversy. Complaints had been made at the hearing of the Parliamentary Service Bill before the Standing Orders Committee. 35 A plea was made that this Bill, as drafted, would not lead to the promised autonomy for the House. It was pointed out that the Bill was in conflict with the U.K. House of Commons Administration Act. The new Commission would not be the employer of its own staff; this would be the State Services Commission, and executive department. However, the objection was brushed aside by the Committee's Chairman, the Speaker, Hon. Gerald Wall. This was picked up in newspaper comment. 36 33 Palmer, 34

A Recipe to Change, pp. 29-31. House of Commons Administration Act, HMSO., 1978, Sect. 2,

(2). 35 See submission No 8 by Tom McRae to the Parliamentary Service Bill. It must be remembered that Wellington has no recorded and published transcript of committee proceedings. Thus random reporting by the media can be the only source of information of important events. 36 Parliamentary Service Act, No 128 of 1985, and Tony Garnier, "Appointment clauses give concern". Evening Post, 30 May 1985.

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And as Tony Garnier said, Evening Post research has revealed that some parliamentary staff are concerned that an element of Executive control remains and has been entrenched by a clause giving the State Services Commission independent control on staffing matters. This is the exact opposite of what the staff believed the government would enact under its promise to provide an autonomous Parliamentary Service Commission. The "Post" reliably understands the delay in introducing the Bill and the change was partly the result of detailed [secret] submissions made by the State Services Commission. 37 Garnier's remarks on "detailed submissions" cannot refer to direct submissions before the Committee because the State Services Commission did not make a public submission to the Committee. This must refer to private submissions to the Committee, as the State Services Commission had a role in drafting the Bill before the Committee, as well as supplying three officers to "service" the Committee during the passage of the Bill through Parliament. 38 Garnier also alluded to the Westminster House of Commons Act's "broadly in line" clause. He showed how the power and influence of the State Services Commission would predominate over much of the affairs of Parliament. Again, Garnier says: ...On most staffing matters the new Parliamentary Service Commission will not have the autonomy that Labour's election promise seemed to indicate. Instead, this will rest with the State Services Commission. The conditions as forecast by Garnier are now in place. Under the Parliamentary Service Act, the New Zealand equivalents of the "House Departments" of the House of Commons that Mr Palmer noted at Westminster are all under a General Manager. The new Act gave this Officer, on behalf of the Parliamentary Service Commission, control over the Library, Hansard Service, Security Service and the total general administration. This Officer and others, apart from the Clerk of the House and his(or her) immediate staff, are appointed, using a panel including the Chairman of the State Services Commission and two Permanent Heads of Public Service Departments. These are appointed from the standard Panel of Permanent Heads by the Prime Minister. The names of possible appointees are then passed to the Governor-General for final ratifying, all an executive process.39 Left out of this "reform" process was consideration of the role of the "management" select committees of Ottawa and Westminster, directly accountable and reporting to the House. These balance the powers of Westminster's Commission and Ottawa's Board of Internal Economy. But the New Zealand House of Representatives did not create these important committees, with their powerful, public management influence.

6.5. The Diminished Role Of The Clerk Of The House THESE CHANGES now separated the Clerk of the House from the wider general The Clerk is pushed aside.

37

The State Services Commission is the government department entrusted with collectively and individually negotiating and setting general conditions of employment and salaries in the State Services. 38 It is the custom in the New Zealand House of Representatives for government departments to provide select committees with such staff. Also see "The power of the Public Service over Select Committees", Chap 7.11, esp. footnote 68. 39 Parliamentary Service Act, Section 35.

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Report Of The Select Committee On Standing Orders 1985 administration of Parliament. The Office of the Clerk now has a separate enabling Act.40But the Clerk now has to submit to certain State Services Commission rules. This Office now only controls the operation of the Chamber of the House, its Committees and certain other duties. But this Office and the Clerk have no jurisdiction over the maintenance or possible refurbishing of the very same House and committee facilities that they use. Before 1984, Mr C.J. Littlejohn, Clerk of the House, like his predecessors, had been the longstanding and respected Permanent Head of the Legislative Department. His position had been similar to the Clerks at Westminster and Ottawa, where a unified control is in operation, accountable to the Speaker and the Members. The Clerks at Ottawa and Westminster have always been seen as the senior administrators of the Commons and their associated services. They usually come from the pool of administrators in the House of Commons, and are not necessarily lawyers. In reply to a query regarding staffing and recruitment at Westminster, Sir Kenneth Bradshaw, Clerk of the House of Commons, said, The Clerk does have to be a lawyer by training. He be so qualified - two out of twelve have been this century but it is not necessary...Other top-grade staff have as you say different qualifications - law, economics, accountancy, mathematics, science. The overriding requirement is a first or second class Honours degree and success in the Public Service examination (Highest Grade.)41Also, the Clerk at Westminster is also the Accounting Officer for the House, and so has overall responsibility for the expenditure of all the departments. And he presides over the Board of Management, which comprises the heads of all the departments.42 This is virtually the same situation as that which prevails at Ottawa and existed in New Zealand before the 1984 Labour Government ( Lange and Palmer) moved in with "reforms". But these changes have downgraded severely the status of the Office of the Wellington Clerk of the House. The other very strange anomaly is the disappearance of the Department of the Serjeant-at-Arms. At Westminster this department is concerned with order, security, ceremonial and communication. This involves enforcement of order in the Chamber and its galleries, and in the precincts of the House, and control of admission or access to them, particularly the admission of visitors to listen to debates. Numerous ceremonial duties survive, for example, carrying the Mace in the daily Speaker's procession at the opening of the sitting.....The Serjeant himself advises the Speaker directly on security matters and he and his deputies advise the Services Select Committee which, in its turn, advises the Speaker on accommodation policy.43 The New Zealand Serjeant at Arms now works from within the Office of the Clerk of the House with jurisdiction only as far as the Chamber of the House and its committees. Overall security for the wider precincts is now dealt with by the new General Manager, an executive appointee, reporting to the Speaker in his or her other role of Chairman of the Parliamentary Service Commission. Security staff are employees of the State Services Commission. For New Zealand now has a Serjeant at Arms of the House, not of its Parliament.

40 Clerk 41

of the House of Representatives Act, No 126 of 1988. See Letter from Sir Kenneth Bradshaw, Clerk of the House of Commons,

London. 19 July 1985. 42 Griffith, Ryle and Wheeler-Booth, p. 153. 43 The Member's Services Committee has 20 Members under the Chairmanship of the Leader of the House. It is set up under Standing Order No. 125. It advises the Speaker on accommodation, administration, catering, computers, the Library, and new buildings. It reports to the House. See Griffith, Ryle and Wheeler-Booth, pp. 162-164.

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6.6. The Coad Report Coad spells it out for the first time?

THE LANGE-PALMER ADMINISTRATION surprisingly split the administration of the House of Representatives into two separate sections. There was no constitutional precedent for this, Westminster and Ottawa having unified management structures under the one permanent head. This was doubly surprising because an authoritative report, done by the State Services Commission for Cabinet in 1982, found no fault with this unified management system. This was primarily an "economy and efficiency" audit. However, they were careful to acknowledge the dual roles of the Clerk, those of a constitutional and a management nature. In particular they said The staff, for example, are not public servants under the control of the State Services Commission, and as mentioned earlier, in some staff matters it is required to consult, rather than be subject to direction and control.44They further recommended that "the Legislative Department remain separate from the public service" but that public service practice be used as a model. This was similar to Westminster practice being "broadly in line" with U.K. civil service models. As stated above, it is surprising that this Report was ignored as it carefully spelt out the constitutional niceties existing within a Westminster legislature, possibly for the first time ever in New Zealand.45 The present structures now allow an executive departmental influence certainly not advocated by this Report. They are also contrary to accepted the constitutional law of legislatures.

6.7. The Diminished Status Of The Controller And Auditor-General SINCE THE beginning of responsible government last century, the New Zealand Scant formal recognition for the Controller and Auditor-General. Controllers and Auditors-General have been given very little status. As pointed out earlier, since 1867 there has been no Audit Act. Initially, there was the Audit Act, 1858. 46It was relatively modern, even specifying the appointment of an Audit Select Committee by the Speaker and the House. But this Act was repealed and the audit functions were included in the

44

Coad,N.S. and Brosnahan, C.A. Management Audit-Legislative Department, State Services Commission, 21 May 1982. pp. 59. p. 5. 45 Ibid. p. 5. 46 An Act to provide for the Audit of the Public Accounts of the Colony of New Zealand, [21st July 1858].

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Report Of The Select Committee On Standing Orders 1985 Public Revenues Act , No 84 of 1867. Parliament no longer had direct jurisdiction over this Officer who was now to be under the Minister of Finance. Successive Controllers and Auditors-General have complained over their lack of proper statutory status. In 1891 James Edward FitzGerald submitted to Parliament a complaint on the "Status of the Audit Department". He said this urgently needed clarification, adding: ...I desire to point out that in England and every colony other than New Zealand the Auditor-General makes a special report to Parliament on each year's expenditure, and especially on any excess of expenditure over the votes. That has not been the practice in this colony, and the Auditor-General could not make a special report without bringing the cause of it into invidious notoriety, and placing himself, as it were, in a position of hostility to the Government. It is so required in England as regards the Appropriation Account (see "Exchequer and Audit Act 1866" section 32), [original text.] and it is expressly stated (section 27) that "the Appropriation Account shall be examined by the Controller and Auditor-General on behalf of the House of Commons [original italics]".47 Today's Parliament certainly does receive a full set of audited Public Accounts from the Audit Office. 48 However, the recently retired Controller and Auditor-General Mr Tyler, still complains to Parliament(3 October 1990) about the status of his Office and that of his department. Despite select committee recommendations, the New Zealand Controller and Auditor-General is not yet statutorily recognised as an Officer of Parliament. 49Neither has the Audit Department, with its Minister, been disestablished and incorporated in the Audit Office. Mr Tyler also spoke about ...the absence of a formally recognised procedure for the House to consider the reports the Audit Office makes to it. Without such a procedure, the accountability relationship is not complete. The committee recommends that reports tabled by the Audit Office, and the other Officers of Parliament, should stand referred to the Officers of Parliament Committee which itself should be recognised by the Standing Orders.50 The Officers of Parliament Committee was set up following a study by the Select Committee for Finance and Expenditure. Its purpose is to provide a focus for Parliament's Officers. These are the Controller and Auditor-General, the Ombudsmen, the Parliamentary Commissioner for the Environment and the Wanganui Computer Centre Privacy Commissioner. The Committee's hearings had been preceded by attacks on Mr Tyler and his department by a Labour Cabinet Minister, Hon. Peter Neilson. He threatened Mr Tyler with legal action over the latter's remarks concerning the Government's advertising of its policies.51 The following month the Government tabled its intention to hold an inquiry into the status of the Parliamentary Officers. But this Inquiry was not without its direct attacks on the status of the Controller and 47

James Edward FitzGerald, Controller and Auditor-General, Report of the Public Accounts Committee, On the Memorandum of the Controller and Auditor-General Relative to the Duties of the Audit Department, Parliamentary Paper I-9, pp.4, Government Printer, 21 August 1891. 48 See "The Public Accounts---A Historical Perspective", pp. 8-17, Report on the Public Accounts for the Transitional Quarter 1 April 1989 to 30 June 1989, Audit Office, Wellington. This shows the improvement in the presentation of the Public Accounts over 149 years. 49 Report of the Select Committee for Finance and Expenditure, On the Inquiry into Officers of Parliament, Parliamentary Paper I.4B, Government Printer. 1989. 50 B.C.H. Tyler,"Status of the Controller and Auditor-General and the Audit Office", Report of the Audit Office, Year Ending 30 June 1990, Parliamentary Paper B 28, Government Printer. p. 6. 51 Simon Kilroy, "Government fights auditor over tax", The Dominion, 1 October 1988. Also see June Pallot, "Accounting, Auditing and Accountability", in Reshaping the State, Eds. Jonathan Boston, John Martin, June Pallot and Pat Walsh. Oxford University Press, Auckland. p. 237 for details of the attack on Mr Tyler and the Audit Office by Jim Sutton, Chairman of the Finance and Expenditure Committee.

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Auditor-General. Treasury wished to limit the scope of the Audit Office's jurisdiction, as well as reduce the implications for ministerial responsibility and accountability to Parliament. Also, Treasury thought that the State Owned Enterprises(certain statutory corporations) should not come under the ambit of the Audit Office. The Treasury's submission was severely attacked both by Government and Opposition Members of the Committee.52 In response, Mr Tyler felt it necessary to make a supplementary submission. He said that Treasury's proposals were fundamentally flawed and constitutionally dangerous and "Many of the assertions are either factually incorrect or at least misleading". 53 Mr Tyler's first submission was notable for New Zealand parliamentary practice in that it dealt with overseas auditing practice. He drew from this and submitted a special draft Act for the Audit Office, New Zealand not having one. One other submission also dealt with overseas practice. 54 This commended the operation of the British National Audit Office and the Westminster and Ottawa Public Accounts Committees with their Opposition Chairpersons. Also stressed, were the procedures used in appointing the U.K. Comptroller and Auditor-General and the U.S. Government Comptroller. These procedures allow these two legislatures certain powers in the appointment process for these Officers. Similar structures and procedures were recommended for Wellington. But these ideas received short shrift from the Chairman of the Finance and Expenditure Committee, Mr J. Sutton. He was backed up by Ms R. Richardson and Mr Trevor de Cleene, with Mr Sutton saying "We cannot bring in ideas like that from other Parliaments". 55 In a most extraordinary move, one submission came from the Hon. Kerry This is how it is done!

Burke, the Speaker. However, it was only an oral one, leaving no record as the New Zealand system does not record and publish proceedings. It is ironic that as a result of this Inquiry, the Speaker ended up as the Chairperson of the Officers of Parliament Committee. Yet there is no record of what he said before the examining committee which obviously enabled him to become chair of the new Officers of Parliament Committee. Today the Deputy Speaker, a governing party Member, also sits on the Committee. Criticisms have been made from certain Members of Parliament of these procedures. National Member Katherine O'Regan said: The Speaker and Ministers like Palmer and Hunt should be removed from our reforming committee and the job given to backbenchers, as overseas. Only then might we provide statutory freedom for our Officers such as Mr Tyler. But with any Audit Bill coming from the Government, this could still give Ministers and their advisors the amount of rope they are allowed now in Parliament.56 And National Member Rob Munro discussed the strange anomaly whereby a Government can promote the legislation and rules for much parliamentary procedure without check: The Government can get away with putting together bills which affect the way it and its advisers are called to account. This could be thought laughable if it was not so very 52 Linda 53

Clark, "MPs unite to lambast Treasury Audit views". National Business Review, 15 February 1989. See Submission No 7a to the Inquiry into the Status of Parliamentary Officers. Please note this attack is not mentioned in the Report of the Committee to the House. 54 See Submission No 15 by Tom McRae. Please note that these ideas on overseas practice were not noted in the subsequent Committee Report to the House. 55 Tom McRae, "Wellington-based two party racket alive and well", National Business Review, April 22, 1989. 56 Tom McRae, "Executive still running the whole shooting works: Wild West label applies to Parliament", National Business Review, 15 December 1988.

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serious. This happened over the Parliamentary Service Act..... This inhibits our Parliament developing its own unique mission and culture. The same is likely to happen with any Government's Audit Bill. This should really come out of a select committee aided by the Parliamentary Counsel. It should be chaired by an Opposition Member, not a Member of the Government which has to be called to account here. 57 Now the Government proposes an amendment to the law to cut the Audit Office's responsibilities. The staff of the Audit Office is also to be cut by at least sixteen per cent, all without any response from the Officers of Parliament Committee.58 The parliamentary status of the Controller and Auditor-General and the department has improved little since Mr FitzGerald's complaints in 1891. 59 There is still no Act such as he called for then.

6.8. The Lange-Palmer Administration In Retrospect IT IS NOT the purpose of this research to dwell overly long on why, in the Lange and Palmer, and their broken promises.

field of parliamentary reform and control of the Executive, the 1984-90 Labour administration did not carry out most of its promises. The mere charting of the performances of the various actors operating in the New Zealand House of Representatives over the period 1951-91 is in itself a good first step in highlighting the need for an alternative approach to parliamentary control of the Executive. However, mention must be made of the policy of managerialism brought in by the 1984 Labour administration. Understanding this will impart a better understanding of the attitude of this Government to the managing of Parliament. Managerialism took precedence over any previously stated intention to follow a constitutional approach to reforming the House. Crucial to this were two new statutes, the State Sector Act (1988) and the Public Finance Act (1989). Walsh says "The State Sector Act is driven by managerialist concerns... the Government viewed the State Sector Act more as an instrument of management reform than as a constitutional measure". 60.

57 Ibid. R.J. Munro 1946-, National, Invercargill 1978-90. 58 Simon Kilroy, "Audit Office to cut staff and branches", 59

The Dominion, 9 Nov 1991. The U.K. National Audit Act 1983 was promoted by a backbencher, Mr Norman St John Stevas. It gives the Chairman of the Public Accounts Committee, always an Opposition member, the right to be consulted when a new Auditor-General is to be appointed. New Zealand practice sees a panel of Permanent Heads advising the Prime Minister on any new appointee. See Appendix for copy of letter from Chairman of the State Services Commission, dated 17 October 1983.

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Report Of The Select Committee On Standing Orders 1985 Minister of State Services, Stan Rodger, said "Unless there is good reason otherwise, what is good for the private sector employers, unions and workers should also be good for employers, unions and workers in the state". 61 In the context of the Public Finance Act Davies "refers to the accountability of bureaucrats to Ministers as managerial accountability, in contrast to public accountability, which is the accountability of Ministers to Parliament and thence the community at large. The detailed attention given to managerial, rather than public accountability can be seen as another manifestation of managerialism". 62

It must be noted that neither the State Sector Act 1988 nor the Public Finance Act 1989 drew from the experience of the 1962 McCarthy Commission. The latter Act only deals with single-year programming. Its terms of reference for reporting to the House did not include multi-year programming for the total public sector. These did not, either, provide a basis for the House to examine the planning and monitoring of long-range capital works projects. Bulpitt contrasts managerialism inside a monetarist policy directed Bulpitt's view of monetarism as a philosophy. framework with "the Madisonian strategy of constitutional and institutional pluralism allied, in the case of Western Europe, to proportional representational systems". He shows that the philosophy of monetarism includes the reduction of Parliament to just the status of a talk-shop as well as it being driven by elitism, the peripheralisation of community groups and putting economic management solely into the hands of "automatic mechanisms" claimed to be not the responsibility of government. Ironically, the Madisonian strategy was rather similar to what was being offered for sale by Messrs Lange and Palmer before the 1984 general election. 63 The changes made to the processes of Parliament were in general terms on the lines of the overall governing style of Labour's fourth term in government. Richard Mulgan has written: In general terms, the political system has been moving away from a relatively populist style, marked by a high degree of popular participation, corporatist consultation of interest groups, and responsiveness of politicians to the demands of the electorate. It is becoming a more elitist, technocratic system with greater influence being exercised by expert public policy advisors trained predominantly in economics and business management, and less by other groups and members of the public whose opinions are commonly characterised as the special pleading of vested sectional interests. This change passed relatively unnoticed under the leadership of David Lange, a Prime The iron hand in the velvet glove.

Minister built in the image of former populist leaders such as Norman Kirk and Sir Robert Muldoon. For much of his time, Lange was adept at playing the traditional populist game while his senior ministers, many of whom had propelled him into the leadership for just that purpose, transformed the system underneath him. 64

60 Pat Walsh, "The 61 Ibid. 62 Davies, S. noted 63

State Sector Act 1988", in Reshaping the State, p. 73.

in Pallot., p. 219. Jim Bulpitt, "The Discipline of the New Democracy:Mrs Thatcher's Domestic Statecraft", Political Studies, (1986), XXXIV, 19-39. Political Studies Association of the United Kingdom, Oxford. pp. 26-28.

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This analysis links in with earlier work done by Pateman when discussing a "one-sided procedure" which has resulted in "a 'democratic' theory that Pateman's reminder of the historical origins of the 'New Right'.

bears a strange resemblance to the anti-democratic arguments of the last century. In the contemporary theory of democracy it is the participation of the minority elite that is crucial and the non-participation of the apathetic, ordinary man lacking in the feeling of political efficacy, that is regarded as a bulwark against instability". 65 In this context, it is easy to see why, coming out of Bulpitt's analysis of British conservative statecraft he says that one of their tactics involved with gaining autonomy and as part of their "high politics", was "the employment of parliament as a talk-shop and essential intermediary with peripheral forces".66 This helps explain the pre-1984 election strategy of Messrs Lange and Palmer; while their public discourse before that election was full of how the New Zealand House of Representatives was to become an essential part of a new, democratic and more participatory type of Labour's secret agenda.

government, their "secret agenda", as mentioned, was of a totally different hue. As the next chapter shows, despite the changes made by the Fourth Labour Government to the internal processes of the House, those procedures are still inadequate. There is still a great awareness that all is not well with Parliament. The reforms have been partly democratic; more people have been encouraged to come forward and make submissions. Select committees are making an effort to travel around, more than in the past, to receive submissions directly. But this increased activity has in turn shown up faults in the system. Labour's fine words about what would result from these reforms has produced rising expectations, not fulfilled. As will be shown both Labour and National have over-used the "urgency" option in order to fast-track legislation. This relates especially to economic and financial policy development. Frustration with this process has put Parliament at possibly one of the lowest levels of public esteem.

65 Pateman, 66

p. 104. Bulpitt, pp. 27-28.

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Chapter 7. The Strange Case Of The Two 1990 Finance Bills THE PURPOSE of this chapter is to highlight the extent to which the procedures Labour speeds up the prostitution of the process.

of the New Zealand House of Representatives have, over the years, been used so as to allow the Executive to "fast-track" legislation. This process was first noted in Chapter II, with the example of the 1952 Finance Bill and the related comments of the Hon. Rex Mason. 1 This chapter mainly concentrates on two 1990 Finance Bills, Nos 2 and 4. Between them, these Bills had 33 extra Bills tacked on to them in the House by the use of Supplementary Order Papers. The details of how the New Zealand House uses this procedure are discussed. Comment on these procedures was obtained from Canberra, Ottawa and Westminster. It is noted that it is usually Government Bills dealing with finance that are used for this fast-track procedure. This ensures that any other Bill that is tacked on to the original Finance Bill does not receive select committee consideration. Of course, under financial and budgetary procedures in the New Zealand House, no Finance bill normally goes to a select committee. These are usually dealt with by the Committee of the Whole House procedure. Also, detail of how Bills can be divided in the House, by agreement, is brought forward for discussion.

7.1. The Case Of The "Tacked Bill" PUBLIC CONCERN developed following the fast-track passing of certain bills in A neat little trick, especially if all others approve.

1990. Some were included in the 1990 Labour Government's budget procedures. These bills were introduced without any prior notice and were dealt with solely in the House. They did not have to pass through the various stages normally demanded of them by the House, such as separate introductions and first readings as well as consideration by a select committee. Professor G.A. Wood has examined this fast-tracking process and has given us the term "tacked bill". He has shown that the 1984 Labour Government introduced it in order to fasttrack legislation. This Government, has introduced one of the neatest devices for fast law making which can be found anywhere-the device of the tacked bill. It is very simple. New Zeal-

1

See Chapter II, Section 2.16, "The Case of the 1952 Finance Bill".

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and, like other Parliaments of the Westminster tradition, has always required that bills go through a regular series of stages before they finally become formal law. At a minimum they require a first reading, a second reading and a third reading. But as some alert observers have realised, we have now on the statute book laws which have not had a first, a second or a third reading. These were laws which were tacked on to another bill late in the proceedings.2This fast-track procedure is relatively simple. All it needs is for that Member in charge of a Bill, almost always a Minister, to produce and use a Supplementary Order Paper (SOP) in the House. He or she then pleads, in the public interest, for "urgency" to be granted for extra bills. As the Government majority ensures this being granted, these added bills are then "tacked" on to the Bill under progress. These newly introduced bills can then escape the select committee stage with the normal public hearings, as well as the other stages of bill procedure.3 This process is now becoming so common that, when one bill already on the Parliamentary Order Paper has added to it a whole series of bills, a new term has been added to the New Zealand parliamentary lexicon, namely "omnibus bills". However, there are occasions when bills are divided in the House after having the normal select committee consideration, with the prior direction of the select committee or the permission of all Members of the House. For instance, this occurred when the Hon. Helen Clark, Minister of Health, moved to divide the Labour Relations Amendment Bill into five newly named bills, but using an un-numbered Supplementary Order Paper.4 It can be assumed that the division of bills in the House is always without notice and under "urgency". But this is not so and bills can be divided, as in this quoted instance, for well founded administrative and legal reasons.5 But as the correspondence with overseas parliaments shows, they normally do not use this practice.

7.2. Labour Speeds Up The Process ONE GLARING CASE of this sort of procedural abuse involved two 1990 Bills, Labour steams through a gap in the process. Finance No 2 and No 4. The first Finance Bill metamorphosed into 24 extra Bills and the second into 9 extra Bills, all under urgency.6On 1 August 1990 the Hon. David Caygill, Minister of Finance, produced in the House, without notice, Supplementary Order Paper No. 50 to facilitate dividing Finance Bill No. 2

2

G.A. Wood, "An extension for the House?, Instant law-making is in danger of bringing Parliament into disrepute", The Dominion, Wellington, 3 May 1990. 3 Normally, bills have an introduction and first reading followed by select committee consideration except Appropriation and Imprest Supply bills or bills accorded urgency. The select committee then reports to the House, there is a second reading and then the Committee of the Whole House stage (the committee stage). The third reading completes the consideration of a bill before it goes for Royal Assent. 4 Journals, 21 August 1990. 5 Information on this point was provided by Professor G.A. Wood.

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The Strange Case Of The Two 1990 Finance Bills into these extra Bills.7 Previously, on 21 August 1990 the Hon. Peter Neilson, Associate Minister of Finance, had similarly produced Supplementary Order Paper No. 70 to divide Finance Bill No. 4 in the same manner.8 This procedure enabled these extra thirty-four bills to avoid any prior notice by first being put on the House Order Paper and then having to undergo any select committee consideration.

7.3. "Urgency" And "The Public Interest" Reinterpreted THESE TWO Bills followed the introduction, on 24 July 1990, by the Mr Hunt joins the chase.

Minister of Finance, [the Hon. David Caygill] of the Appropriation Bill(No 3) (Financial Statement), the initial part of the annual Budget process. This was then read a first and second time. This was then followed by the tabling, by leave, of the Annual Budget and Estimates of Expenditure Papers. 9The Rt Hon. Jonathan Hunt, Leader of the House, then moved under urgency the following motion: That urgency be accorded the introduction, second reading, Committee stage, and third reading of the Finance Bill(No 2), and the third readings of any Bills into which that Bill may be divided; the second reading, Committee stage, and third reading of the Taxation Reform Bill (No 7), the Civil Aviation Law Reform Bill, the Health Council Bill, the Importation of Medicines bill, and the Foundation for Research, Science and Technology Bill, and the third readings of any Bills into which those bills may be divided: and the introduction of Government bills. 10Mr Hunt then said, " I stress that the reason is to enable the Government to pass one Bill with several measures in it that result from the Budget, and to pass several remaining consequential measures so that the House can adjourn at the end of the week". 11 The House divided on this Motion, the Government winning by 52 to 34.

7.4. Finance Bill (No. 2) Charts New Lows THE HON. PETER NEILSON, Associate Minister of Finance, then introduced the Mr Neilson exposes the detail of the non-budgetary

6

See Appendix for Letter from the Clerk of the House, Wellington, 31 August 1990. Also see related letters from Canberra, Ottawa and Westminster. 7 Journals of the House of Representatives, Published under the Authority of the New Zealand Government. Second Session, Fortysecond Parliament, 1990, p. 462. 8 Journals, 1990. p. 627. 9 424. Budget 1990, Speech and Tables. B.6 and Estimates of Annual Appropriations and Departmental Budgets of the Government of New Zealand, for the Year Ending 30 June 1991, B.7. Journals, 1990. p. 448. 10 NZPD, Vol. 509, 24 July 1990. p. 3010. 11 Ibid.

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material. Finance Bill (No 2). This was so structured that, by the use of subsequent motions, it could easily be divided into new Bills to be passed under the "urgency" provisions initially claimed for money or finance measures. Clauses 2 to 12 were to "make provisions of the transfer of the bonus-bond scheme to Post Office bank Ltd or a related company. A unit trust managed by this bank "may be approved by the Minister of Finance as the vehicle by which the net income received from the bonds is distributed to unit holders as prizes". The obligations of the trust were to be guaranteed by the Crown for two years; this completed the process of "the Post Bank Ltd sale to the ANZ Banking Group announced about 16 months ago". 12 Clauses 13 to 35 were to amend the Social Security Act 1964. The Minister for Senior Citizens, Hon. Margaret Shields, was to be "made responsible for guaranteed retirement income". The orphans' benefit was to be split into a new unsupported child's benefit and an orphan's benefit. Changes were to be made to unemployment and "stand down" periods for 16 and 17 year olds. Clauses 36 to 40 were to alter and/ or exclude aspects of the provisions for veterans and guaranteed retirement income (GRI) payments presently found in the Social Welfare (Transitional Provisions) Act 1990. Clause 42 provided for the repeal of the America's Cup (Planning Act). But the Planning Authority constituted by the Act will stand to deal with outstanding issues presented to the authority before 27 April 1990. The clause was also to amend certain other Acts(unstated). No specific mention was made of Clause 41, applying to this repealing Act. Also Mr Neilson only mentioned the import of Clauses 43 to 57, dealing with changes to the Government Superannuation Fund Act, Clauses 58 to 60 dealing with changes to the State Sector Act 1988, Clauses 61 to 63 altering the Area Health Boards Act 1983. He did not specifically mention these Clauses. Mr Neilson then said "the significant changes are that the voluntary general superannuation for State servants will be closed to new entrants from 1 July 1991. After the passage of the Bill, employers in the Government sector will be able to establish their own schemes for their staff or to subsidise them in other schemes provided in the private sector. Additional details on a clause by clause basis will be provided in my second reading speech. Again, those provisions have been subject to a select committee examination and to the hearing of submissions.". Clauses 64 and 65 altering the Superannuation Schemes Act 1989, were discussed in general terms.13 Clauses 66 to 76 were to amend the Export Guarantee Act 1964 to provide for the sale of the Export Guarantee Office. This was to be "the last stage of the sale of the State Insurance Office, which managed the Export Guarantee Office, to the Norwich Union Life Insurance Society".14 Clauses 77 and 78 were to transfer the administration of the Plant Variety Rights Act from the Ministry of Agriculture to the Ministry of Commerce. Clauses 79 to 82 were to amend the State-Owned Enterprises Act 1986 so that "the provisions contained in sections 23 to 29 of the principal Act are available for the transfer of Crown assets and liabilities to New Zealand Liquid Fuels Investment Ltd and New Zealand Timberlands(Bay of Plenty) Ltd, notwithstanding that at the time of the transfer there is an intent to sell shares in those companies or to obtain the benefit of those provisions. In addition, the rights and benefits relating to assets transferred by the Crown to a state-owned enterprise are retained by the Crown, notwithstanding the transfer of those assets". Clauses 12

NZPD Vol 509, 24 July 1990. p. 3011. This discussion on this Bill is based upon the remarks by the Minister as recorded in Hansard. 13 NZPD, 24 July 1990. Vol 509, p. 3012. Please note that there is no direct reference either in Hansard or the Journals of these previous select committee hearings. 14 Neilson, NZPD, 24 July 1990. Vol 509, p. 3012.

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83 and 84 were to amend the Commerce Act so as to remove an anomaly, "whereby transactions entered into before the coming into force of the Commerce Amendment Act 1990 would have required a clearance from the Commerce Commission under the amending Act".15 Clauses 85 and 86 were to amend the Fisheries Act 1983 covering fees for operating fish farms. Clauses 87 and 88 were to arrange for fees previously charged for leases and licences under the Marine Farming Act 1971 "in future be prescribed by regulation". Clauses 89 to 95 were to amend the Tourist and Publicity Department Act 1963 "in order to effect the change in name of the department to the New Zealand Tourism Department. Certain consequential amendments to other Acts(unstated) are to be made and some redundant sections of the principal Act are repealed". Clauses 96 to 99 amend the Tariff Act 1988 so as to change "the setting of fees under Part II of the tariff and give effect to the Budget announcements relating to excise duties on motor vehicles, motor spirits, and diesel. In addition, certain tariff concessions(unstated) purported to have been made, modified, or withdrawn under section 8 of the Act are validated". NZPD, 24 July 1990. Vol. 509. pp. 3012-3. Clauses 100 to 111 related to Budget announcements to do with "the reduction in excise duty of motor spirits, and the abolition of duty on automotive diesel and on motor vehicles with effect from 25 July 1990". Also, the Customs Act 1966 is to be changed so as to allow "full introduction of an electronically based system for recording and processing entries". Clauses 112 and 113 of the Immigration Act 1987 are to be changed so as to set-up an resettlement and immigration research fund. 16 Clauses 115 to 147 were to amend the Income Tax Act to give effect to budget announcements, namely: • to introduce the new living-alone payment. • to increase the amounts that can be claimed as charitable donations. • to introduce test-period log-books for motor vehicles. • to change section 189, relating to interest claw-back on rental property. • to change section 188A over losses from certain specified activities. • to remove double taxation on income distributed by Maori authorities. • to increase the threshold for making pay-as-you-earn payments.17Clauses 149 to 152 were to also amend the Income Tax Act affecting land tax. This was to be reduced 0.5 cents for every dollar of land value for the year of payment commencing 1 April 1991. This tax was to be abolished 15 Ibiid 16 NZPD 17

24 July 1990. Vol 509, p. 3013.

Ibid.

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from 1 April 1992. Clauses 154 to 161 were to deal with changes in goods and services tax(GST) following on Budget night announcements on tax simplification. These changes were, • to allow registered persons to change their taxable periods. <listitem> to increase the threshold of GST payments base from 500,000 dollars </listitem> to 1 million dollars. to increase the GST registration threshold from 24,000 dollars to 30,000 dollars. • and finally, to increase the threshold for GST invoices.18Clauses 163 to 189 were to be used to amend the Electric Power Boards Act 1925 and the legislation(unstated) that established the Auckland Electric Power Board, the Waikato Electricity Authority, and the Rotorua Area Electricity Authority. Mr Neilson said these changes were part of the reform of the electricity distribution sector. Electric power boards and municipal electricity departments were to be formed into companies under the Companies Act 1955. Shares in each of these new companies "would be held in trust for the community-the beneficial owners--by a board of trustees". In turn "directors of companies that were formed from electric power boards would be appointed by Government, based on nominations from existing electric power boards and territorial local government". These nominations need not necessarily be accepted by Government and existing power board members could become directors or trustees but not both. These proposed amendments make provision for the following matters, namely: • the Minister of State-Owned Enterprises is empowered to set-up a trust board and appoint trustees. • the Minister can appoint commercially experienced persons to the boards. • the Minister is given the power to end the terms of office of existing board members under various criteria. • power boards are empowered to make payments to set up trusts. • criteria(unstated here) laid down to be included in trust deeds. • Minister of State-Owned Enterprises empowered to incorporate companies.19 Mr Neilson continued: It is the Government's intention in general to appoint existing power board members as trustees of the trusts as they are formed. The appointment of commercially experienced directors to power boards is a key first step to corporatisation. The Government's experience with establishing State-owned enterprises has shown the crucial importance of appointing people with appropriate commercial expertise before the implementation date of corporatisation. Indeed, the success of the State-owned enterprises model in

18 Ibid. 19

general has been a guide to the Government's thinking on the matter. Some electricity authorities have already begun successfully to become more commercially oriented. The amendments are therefore consistent with the way

NZPD, 24 July 1990. Vol. 509, p. 3014.

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that the establishment boards are appointed before the formation of Government trading activities into State-owned enterprises. 20 Again, Mr Neilson: "the electricity distribution reform unit, under the chairmanship of Sir Peter Elworthy, will co-ordinate the nomination and appointment processes for both trustees and directors, and will make the appropriate recommendations to the Minister in due course". Clauses 190 to 194 were to amend the Electricity Act 1968 to change the criteria of appointing rural electrical reticulation councils. This was to be done in the future by the Minister of State-owned Enterprises. Clauses 195 to 197 were to amend the Reserve Bank Act to allow the Bank to put out policy statement reports " at intervals of not less than 6 months". Also, the position of a director within a conflictof-interest situation at meetings of the Bank, was to be clarified.

7.5. Finance Bill (No. 2), Second Reading DEBATE CONTINUED to midnight and was resumed at 9.00 a.m. on Wednesday, A Clayton's second reading.

25 July 1990. The Bill was then read a second time this day, Mr Neilson moving, "On behalf of the Minister of Finance, I move that this Bill be now read a second time". Mr Neilson's second reading explanation of this Bill extended very little past the breadth of his first reading speech. There was an extended explanation of the mechanics of Clauses 43 to 59, as promised in the introduction. These Clauses dealt with changes to the Government Superannuation Fund Act, the State Sector Act and the Area Health Boards Act. The ministerial explanation of his Government's policies inherent in these clauses of the Bill only extended as far Clause 158. For, Hansard records that Mr Neilson was challenged over the import of certain of his remarks concerning Clauses 100 and 111 of the Bill. These dealt with changes, announced in the Budget, to the excise duty on motor spirits and the duty on automotive fuel. Mr Burdon, Opposition spokesman on commerce and industry, suggested that there was enough evidence to show that Mr Neilson had discussed these impending changes with outside sources, saying: We have discovered that the Minister was kind enough to inform selected mates and outsiders about who will be entitled to an excise tax rebate. Opposition members would like the Minister to be kind enough to tell the House whom he told; what he told them; when he told them; why he selected particular people as being entitled to the information; and why he excluded other people who presumably were equally entitled to such preferential knowledge.21 Mr Neilson denied these allegations, saying, "That's not true. Will the member yield?". However, Mr Burdon

20 Ibid. 21

NZPD, 24 July 1990. Vol 509, p. 3034.

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The Strange Case Of The Two 1990 Finance Bills extended the detail of his allegations, mentioning names and interests as being possible recipients, before the Budget, of the details of these impending tax changes. He claimed that prior knowledge as possessed by one motor-vehicle manufacturer had enabled this company to book television advertising at about the time the Budget changes to this tax were being announced in the House. He effectively made a second reading speech, despite the request to yield made by the Minister. The second reading debate continued, with Government members indulging in some acrimony to refute the allegations made by Mr Burdon. There is no need to discuss this in detail. However, for the needs of this thesis, examining procedure as it is, certain points can be made. As Mr Burdon had made a very serious statement over the conduct of a senior government minister surely there would have been some separate committee, or at least House, consideration of these allegations. But there was no separate investigation into this alleged breach of procedure. Also, Mr Neilson, surprisingly, made no further contribution to the second reading debate. The debate was concluded without Clauses 159 to 202 receiving any ministerial explanation of related policy issues normally found in a second reading debate. And it came out from the contribution of Hon. Dr M. Cullen, Minister of Social Welfare, that the date of application of the reduction in tax was to be backdated to the start of the current tax year. 22 The second reading debate was concluded by Rt. Hon. Jonathan Hunt, Leader of the House, when he moved That the question be now put. The Bill, after a division, was read a second time.23

7.6. Finance Bill(No. 2) In Committee The House then resolved itself into the Committee of the Whole stage the Committee of the Whole, that is not wholly recorded. whereupon it divided on the question of reading Clause 1 of the Bill. 24 Mr Hunt then moved "That the Bill be considered Part by Part and the Schedules be taken as one Question". However, this was withdrawn and leave was given, for Part I to be taken as one question, and thereafter for the following groups of Clauses to be taken each as one Question: clauses 13 to 35, 36 to 40, 41 and 42, 43 to 57, 58 to 60, 61 to 65, 66 to 76, 77 and 78, 79 to 82, 83 and 84, 85 to 88, 89 to 95, 96 to 99, 100 to 111, 112 and 113, 114 to 147, 148 to 152, 153 to 161, 162 to 194, 195 to 197, 198 to 202; and for the Schedules to be taken as one Question.25 The Committee of the Whole then proceeded to move through the sets of linked clauses, with their times of introduction, as follows,

22 NZPD, 23 NZPD, 24

24 July 1990. Vol. 509. p. 3031. 24 July 1990. Vol 509. p. 3056. It must pointed out again that when the New Zealand House of Representatives moves to the Committee of the Whole stage of passing a bill, no full verbatim record of proceedings is taken down for publishing. This makes it very difficult for any researcher wishing to note any complicated flow of proceedings as in the present instance. Simultaneous use often has to be made of both the related Hansard and the Journals and any Supplementary Order Papers used on such occasions. 25 Journals, 24 July 1990. pp. 451-542.

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• 11.56 a.m. Part I agreed to. • 12.47 p.m. Clauses 13 to 35 (Social Security) agreed to. • 12.48 p.m. Clauses 36 to 40(Transitional Provisions)Sitting suspended from 1 p.m. to 2 p.m. 2.35 p.m. Clauses 36 to 40 agreed to. • 2.41 p.m. Clauses 41 and 42 (America's Cup(Planning) Act Repeal. 3.34 p.m. Clauses 41 and 42 agreed to. • 3.38 p.m. Clauses 43 to 57 (Government Superannuation Fund.) 3.38 p.m. Clauses 58 to 60 (State Sector.) 3.38 p.m. Clauses 61 to 65 (Area Health Boards.) 3.38 p.m. Clauses 43 to 65 agreed to. • 4.55 p.m. Clauses 66 to 76(Export Guarantee.) agreed to. • 4.59 p.m. Clauses 77 and 78(Plant Variety Rights) agreed to. • 5.4 p.m. Clauses 79 to 82(State-Owned Enterprises) agreed to. • 5.5 p.m. Clauses 83 and 84(Commerce) agreed to. • 5.5 p.m. Clauses 85 and 86(Fisheries) agreed to. • 5.5 p.m. Clauses 87 and 88(Marine Farming) agreed to. • 5.55 p.m. Clauses 89 to 95(Tourism Department). • Sitting suspended from 6 p.m. to 7 p.m. 7.23 p.m. Clauses 89 to 95 agreed to. • 7.24 p.m. Clauses 96 to 99(Tariff) agreed to. • 7.25 p.m. Clauses 100 to 111(Customs) agreed to. • 7.52 p.m. Clauses 112 and 113(Immigration) agreed to. • 8.57 p.m. Clauses 114 to 147(Income Tax) agreed to. • 8.57 p.m. Clauses 148 to 152(Land Tax) agreed to. • 9.16 p.m. Clauses 153 to 161(Goods and Services Tax) agreed to. • 9.16 p.m. Clauses 162 and 163(Electric Power Boards) 9.16 p.m. Clauses 164 to 171(Electric Power Trusts) 9.16 p.m. Clause 172(Board's Successor Companies) 9.16 p.m. Clauses 173 to 177(Amendments to the Principal Act) 9.16 p.m. Clauses 178 to 182(Auckland Electric Power Board) 9.16 p.m. Clauses 183 to 187(Waikato Electricity Authority) 9.16 p.m. Clause 188(Rotorua Electricity Authority) 9.16 p.m. Clause 189(Amendments to Electric Power Boards Amendment Act 1989) 9.16 p.m. Clauses 190 to 194(Electricity) 10.59 p.m. Clauses 195 to 197(Reserve Bank of New Zealand) agreed to. • 10.59 p.m. Clauses 198 to 202(Medicines) agreed to. 10.59 p.m. Schedules agreed to.26Minor amendments were accepted from the Government members and one from the Opposition side. Finally, "the amendments set out on Supplementary Order Paper No. 50, for the purpose of dividing the Bill, were agreed to". The titles of the agreed to Bills were: • Finance Bill (No. 2). •26NZPD, Social24Security Bill No. 2). July 1990.Amendment Vol. 510. pp. 3057-3068. 120


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• Social Welfare (Transitional Provisions) Amendment Bill. • America's Cup (Planning) Act Repeal Bill. • Government Superannuation Fund Amendment Bill (No. 2). • State Sector Amendment Bill. • Area Health Boards Amendment Bill. • Superannuation Schemes Amendment Bill. • Export Guarantee Amendment Bill (No. 2). • Plant Variety Rights Amendment Bill. • State-Owned Enterprises Amendment Bill (No. 3.) • Commerce Amendment Bill (No. 2). • Fisheries Amendment Bill. • Marine Farming Amendment Bill. • New Zealand Tourism Amendment Bill. • Tariff Amendment Bill. • Customs Amendment Bill. • Immigration Amendment Bill. • Income Tax Amendment Bill (No. 2.) • Land Tax Abolition Bill. • Goods and Services Tax Amendment Bill. • Electric Power Boards Amendment Bill. • Electricity Amendment Bill. • Reserve Bank of New Zealand Amendment Bill. • Medicines Amendment Bill.27The Speaker was then recalled to the Chair and the House reported that the Finance Bill (No. 2). had been considered in Committee and that parts of it had been divided into these twenty four extra Bills. This Report was then agreed to and these Bills were set down for their third reading later. The time was approximately 11.20 p.m. on Wednesday, 25 July 1990. 28

7.7. The New Bills Are Legitimised ON FRIDAY 27 JULY 1990, the third readings of these Bills were proceeded The one bill now cleverly becomes many Acts. 27 Journals, 28

1990. pp. 461-63. Journals, 1990. pp. 463-64.

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The Strange Case Of The Two 1990 Finance Bills with. First, the Hon. David Caygill, Minister of Finance, moved, that the Finance Bill(No 2) be now read a third time. This Bill had been separated into an entirely stand-alone Bill, now that its purpose of giving legitimacy to the other twenty-three Bills had been accomplished; for a "money bill" can be given urgency in the public interest. So that any others "tacked" onto it, can be given the same "urgency". The other twenty-three bills had been given "urgency" and now could be freed from their association with Finance Bill(No 2). He had made no contribution to the proceedings of this Bill or those into which it had been divided. The third reading was a rather perfunctory affair with only one speaker, Mr Graham, making any contribution. Following this, the Rt Hon. Jonathan Hunt, Government Leader of the House, moved: That the Social Security Amendment Bill (No. 2), the Social Welfare (Transitional Provisions) Amendment Bill, the America's Cup (Planning) Act Repeal Bill, the Government Superannuation Amendment Bill (No. 2), the State Sector Amendment Bill, the Area Health Boards Amendment Bill, the Superannuation Schemes Amendment Bill, The Export Guarantee Amendment Bill (No. 2), the Plant Variety Rights Amendment Bill, the State-Owned Enterprises Amendment Bill (No. 3), the Commerce Amendment Bill (No. 2), the Fisheries Amendment Bill (No. 2), the Marine Farming Amendment Bill, the New Zealand Tourism Department Amendment Bill, the Tariff Amendment Bill, the Customs Amendment Bill, the Immigration Amendment Bill, the Income Tax Amendment Bill (No. 2), the Land Tax Abolition Bill, the Goods and Services Tax Amendment Bill, the Electric Power Boards Amendment Bill, the Electricity Amendment Bill, the Reserve Bank Amendment Bill, and the Medicines Amendment Bill be now read a third time.29 Finally, mention must be made of how today the New Zealand House of Representatives notes the dates of the passage of such urgent legislation. The process of putting the above Bill through its various stages took several days. However, the legal, and one supposes constitutional, date remained fixed at that of the initial date of the introduction of Finance Bill(No 2. It was introduced on Tuesday, 24 July 1990 and its last stage was completed on Thursday, 26 July 1990. However, both the Hansard and the Journals noted the date, at the tops of their pages, as still that of the date of its introduction. The Journals do aid a researcher somewhat by noting, in bold type, the passage of the days in the text of their notations. They usually also show, during the Committee of the Whole stage, the timing of the Clauses of any Bill, but no verbatim record of the proceedings. During these sitting days, the House started at 9.00 a.m. and usually completed its business at 12.00 midnight.

7.8. Finance Bill(No. 4) Makes Its Appearance 29

NZPD. 24 July 1990. Vol 509, p. 3183.

122


The Strange Case Of The Two 1990 Finance Bills FINANCE BILL(NO. 4) was the second money bill used for special Another 'fast-track' sleight-of-hand trick. consideration here to illustrate the procedures of the New Zealand House of Representatives. It was given urgency for all its stages on 21 August 1990, when the Rt Hon. Jonathan Hunt, Leader of the House moved: That urgency be accorded the Committee stage and third reading of the Broadcasting and Radiocommunications Reform Bill; the second reading, Committee stage, and third reading of the New Zealand Railways Corporation Restructuring Bill and the Nurses Amendment Bill; the interrupted debate on the on the second reading of the Smoke-free Environments Bill; the Committee stage and the third reading of the New Zealand Bill of Rights Bill; the interrupted debate on the second reading and the Committee stage and the third reading of the Postal Services Amendment Bill; the second reading, Committee stage, and third reading of the Labour Relations Amendment Bill and the Weights and Measures Amendment Bill; the interrupted debate on the second reading, Committee stage, and third reading of the Maori Purposes Bill; the third reading of any Bills into which those Bills may be divided; and the introduction and passing of the Finance Bill(No. 4). He said that "the reason is to make reasonable progress this week in order to complete the Government's legislative programme. I have said, and I have already approached the shadow Leader of the House about the matter, that if he gives a guarantee of reasonable progress the Government will give time for questions and the general debate tomorrow". The motion was passed after a division, the Government obtaining a majority of 21.30

7.9. Finance Bill(No. 4) Is Introduced FINANCE BILL (NO. 4). was introduced on 21 August 1990 by Hon. Peter Mr Neilson obliges again.

Neilson, Associate Minister of Finance, on behalf of the Minister of Finance. Clauses 3 to 7 in Part I related to the confirmation of subordinate legislation of the Primary Products Marketing Act, the War Pensions Act, the Social Security Act, the Customs Act,, and the Tariff Act,. Clause 8 referred to the Dairy Factory Supply Regulations 1989. Various sections in Clause 10 under the heading of "Transport infringement regulations" were to validate "the form of notices prescribed in the schedules to the Transport(Infringement Offences Notices) Regulations and all notices issued after the commencement of those regulations". Clause 11 referred to section 53 of the Customs Act providing powers to customs officers

30

NZPD, 21 August 1990. Vol. 510. pp. 3629-30.

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concerning the consent to the entry of goods. Part II of the Bill was to make several amendments to other enactments. The Carriage by Air Amendment Act 1900 was to be amended "by deferring the commencement day of 1 September 1990 to a day to be appointed by Order in Council". Under the heading "Customs" there was to be "a declaratory declaration provision that makes it clear that the ninth schedule--the validation provisions--of the Customs Act 1966 inserted by way of section 5 of the Customs Act 1966 was not affected when that section was repealed by section 18 of the Tariff Act 1988". 31The second provision of Part II was to amend the Customs Amendment Act 1990 which had altered, in the 1990 Budget, the provisions of excise duty on motor vehicles and the duty on imported motor vehicles. Under the heading "Education", there was a provision to rectify "the inadvertent repeal, under the Education Amendment Act 1990, of powers granted under the Education Act 1964 to councils or technical institutes, now polytechnics, and teacher's colleges, now colleges of education". The heading "Harbours" related to certain planned enactments to the Marlborough Harbour Act. Also there were to be amendments to the Port Companies Act 1988, the Shipping and Seamen Act and the Transit New Zealand and transport licensing-services legislation. The last measure covered by Mr Neilson's introduction related to amendments to the United Nations Act. These were necessitated by the sanctions imposed by the United Nations on Iraq. Mr Neilson said. The Government has moved rapidly to implement those sanctions. Last week it passed comprehensive regulations under the United Nations Act, and they came into force on the following day. The Act was designed for just such a position in which the organisation needed to impose mandatory sanctions in an effort to restore international peace and security. It was passed at the time New Zealand joined the United Nations in 1946. Penalties under the Act include imprisonment, but the monetary penalties are now well out of date. 32 They have not been increased since the Act was passed more than 40 years ago. They have remained the same even though the regulations have on two previous occasions been made under the Act--in the 1960s against Southern Rhodesia and in 1980 against South Africa. The monetary penalties were to be increased up to $10,000 for individuals and up to $100,000 for companies; the provisions in the Act for imprisonment were to remain. Mr Neilson concluded: The amendment will also further demonstrate the Government's repugnance towards the naked aggression that we have witnessed in the Middle East, and its determination to show solidarity with the efforts of the United Nations and other countries to ensure 31 Neilson, 32

NZPD, 21 August 1990. Vol. 510, p. 3774. See United Nations Act, 1946, No. 7 . See Reprinted Statutes,

Vol. 11. pp. 717-719. Section 3(1) refers to the penalties under this Act. These include imprisonment for individuals and fines for individuals and companies. "Sanctions regulations" have been laid down in the past in respect of New Zealand's obligations under Article 41 of the Charter of the United Nations. These covered U.N. actions in and/or against Iraq, Liberia, Libya, Somalia, South Africa and Yugoslavia.

124


The Strange Case Of The Two 1990 Finance Bills that Iraq does not get away with it. I commend the Bill to the House.33

7.10. Finance Bill(No. 4), Second Reading THIS SECOND READING debate ran in a similar manner to that of the Finance A 'faster-track' this time.

Bill(No.) 2. Mr Neilson did not cover in detail all the Clauses and policy implications of various Parts of the Bill. However, Mr John Falloon, Opposition spokesman for agriculture, made strong objections about the speed with which the various measures were being hustled through the House, without select committee consideration and public submission. He made a strong plea for one of the measures to be referred for select committee consideration. The Bill was read a second time on the motion of Hon. Fran Wilde, Minister for Disarmament and Arms Control.

7.11. Finance Bill(No. 4), The Committee Of The Whole House THE COMMITTEE of the Whole stage commenced shortly before midnight Thursday, More unrecorded detail.

23 August 1990, as follows: • 11.25 p.m. • Clause 1. Short Title and commencement. Sitting suspended from midnight to 9. a.m. (Friday). • Debate resumed. • Clause 1. Short Title and commencement continued. • Clause agreed to. • Clause 2 agreed to. • Progress reported. • Debate was resumed on the second reading of the POSTAL SERVICES AMENDMENT BILL. Then the Journals show that the debate was interrupted, and the following

33

NZPD, 21 August 1990. Vol. 510, p. 3775.

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record inserted: â&#x20AC;˘ Debate interrupted.16. Sitting of a Select Committee.-- Leave was given for the Primary Production Committee to sit between 1.00 and 2.00 p.m. today(Friday 24 August) to examine the Finance Bill(No. 4) and to consider any relevant submission that may have been made to any other committee. Please note that the Journals deal provide better detail of this incident. Note the actual date of this motion.34 The Rt Hon. Jonathan Hunt, Leader of the House, had moved that the Primary Production Committee sit during the luncheon adjournment "to examine the Finance Bill(No. 4) and any submissions that might have been put to any other select committee. I think that meets the wishes of the member for Pahiatua(Mr John Falloon).35 Debate on the Committee of the Whole stage of the Finance Bill(No. 4) on 28 August 1990. This followed another motion to apply urgency, made by the Rt. Hon. Jonathan Hunt, Leader of the House, to another set of Bills, namely: I move, That urgency be accorded to the presentation of select committee reports; the second reading, Committee stage, and third reading of the National Provident Fund Restructuring Bill, the Commodity Levies Bill, the Runanga Iwi Bill, the Fire Service Amendment Bill(No. 2), the Gaming and Lotteries Amendment Bill, and the Business Development Boards Bill, and the third reading of any Bills into which those Bills may be divided; the adjourned debate on the second reading of the Appropriation Bill(No. 3); the further consideration in Committee and the third reading of Finance Bill (No. 4); the Committee stage, and third reading of the Weights and Measures Amendment Bill; the adjourned debate on the second reading, and Committee stage, and third reading of the Maori Purposes Bill; the Committee stage, and second reading of the Postal Services Amendment Bill; and the third reading of any Bills into which those Bills may be divided. That is to complete the legislative requirements that the Government must pass before the end of the season. 36The Committee of the Whole House stage then continued, after the House divided on a motion to accept this Motion of the Leader of the House; the Government obtained a majority of 14. This was followed by a Point of Order by Mr Falloon. He asked if the Government "could inform the House exactly where the Committee is up to on the Finance Bill (No. 4) The Committee seems to be chopping and changing from one clause to another all the time...I should like members to be told exactly which clause the Committee is up to so that members can be prepared to give an adequate debate on a very important Bill that affects the interests of many people". Mr Hunt, Leader of the House, then said, " The House is going back into the Committee of the Whole House, and will start again with the first part of the Bill". 37 As 34 the record shows, debate resumed, in Committee, from 21 August 1990. Journals, 21 August 1990. p. 601. 35 NZPD, 36 NZPD, 37

21 August 1990. Vol. 510, p. 3809. 21 August 1990. Vol. 510. p. 3871. NZPD, 21 August 1990. Vol. 510. p. 3965.

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• 11.40 a.m. • the Rt. Hon. Jonathan Hunt, Leader of the House, moved that in its further consideration of the Finance Bill(No. 4) the Committee consider the Bill part by part.[Emphasis added.] • 12.5 p.m. • The Committee divided on the closure motion by the Minister of Social Welfare. Majority 13. • 12.11 p.m. • The Committee divided on the question that the Bill be considered part by part. Majority(for the Government) 13. • 12.15 p.m. • Part I. Substantive Provisions. Sitting suspended from 1 p.m. to 2 p.m. • 2.17 p.m. • The Committee divided on the closure motion moved by the Leader of the House. • Various amendments. • 2.25 p.m. • Part II. Amendments to Other Enactments. Various amendments and divisions. Part II agreed to. • 4.55 p.m. • The Committee divided the Bill into the Finance Bill(No. 4), the Carriage by Air Amendment Bill(No. 2), the Customs Amendment Bill (No. 2), the Education Amendment Bill(No. 2), the Harbours Amendment Bill, the Port Companies Amendment Bill, the Shipping and Seaman Amendment Bill, the Transit New Zealand Amendment Bill, the Transport Services Licensing Amendment Bill, and the United Nations Amendment Bill, pursuant to Supplementary Order Paper 70. The Bill was reported to the House, with amendment.38

7.12. Finance Bill(No. 4) Read A Third Time AFTER THIS MOTION, the House briefly considered, in Committee, the Weights All wrapped up in quick time.

38

NZPD, 21 August 1990. Vol. 510. pp. 3965-3970.

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and Measures Amendment Bill and then proceeded to the third reading of the Finance Bill(No. 4) and those Bills into which it had been divided. On the motion of Mr Hunt, Leader of the House, all these Bills[Emphasis added.] were to be taken under the one question. There was no objection to this from any Member. Then, the Hon. W.P. Jeffries, Minister of Transport, moved, on behalf of the Minister of Finance: That the Finance Bill(No. 4), the Carriage by Air Amendment Bill(No. 2), the Customs Amendment Bill(No. 2), the Education Amendment Bill(No. 2), the Harbours Amendment Bill, the Port Companies Amendment Bill, the Shipping and Seamen Amendment Bill, the Transit New Zealand Amendment Bill, the Transport Services Licensing Amendment Bill, and the United Nations Amendment Bill be now be read a third time.39 A general debate then ensued, it covering the subject of, and the implied policy changes, in all these Bills. Finally, after a debate supplying a record taking up ten pages of the Hansard, these Bills were read a third time. The Journals show leave was granted for them to be "called on as one Question [Emphasis added.]".40

7.13. Comment On The 'Fast-Track' Process THIS COMMENTARY on the passage of these two Bills, Finance Bill(No. One party as bad as the other. 2) and Finance Bill(No. 4) has not dealt with the full, complicated detail involved with the passing of these two Bills. But as the purpose of this thesis has been to discuss procedure, particularly in relationship to such matters as the use of 'urgency', discussion has concentrated on salient aspects of the House procedure. Any reader will see how far the process has been stretched since the time when, in 1952, Mr Mason objected to the speed, even then, with which the Government pushed legislation through the House. An extra volume of legislation was now being given urgency as compared with the haste employed in 1952. It is not possible to deal in detail with each measure. But some analysis can be made to show the implications of the haste employed by the Labour Government. Mr Falloon's objections to the speed of pushing through legislation also needs mention. He had complained about the scope of the new legislation, involving regulations affecting the dairy industry as far back as 1936, and its retrospective implications. He said: Opposition members are operating completely in the dark. The Government states that it has considered the legislation. Twice today when the House was under urgency I attended a select committee hearing to discuss a Bill that will

39 NZPD, 40

21 August 1990. Vol. 510. p. 3970. Journals, 1990. p. 628.

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come back to the House next week. The Opposition is co-operating with the Government to try to get through a sensible measure that involves commodity levies. There is nothing to stop us from having a special select committee hearing on these clauses so that at least the law could be drafted and officials of the Ministry of Agriculture and Fisheries--the people responsible--could come to the select committee and discuss the issue. I make this offer because we are forcing through legislation when there is a major dispute among individuals who are prepared to go to court. That is not acceptable. It is not democratic, and it is completely against the principles that the Prime Minister wrote about in his book Unbridled Power. He is the classic example of a person who has gone back on his principles, and he will lose the election later in the year as a result. I want the Minister to tell the House the reason for the legislation being put through under urgency.41 This extensive quote is used to provide extra background to the previously mentioned complaint by Mr Falloon. He obtained a special select committee hearing, with the vocal support of some of the Government members. 42 However, on the third reading of the Finance Bill(No. 4) and Bills Therefrom. he said, We do not want to hear from the Government the kind of excuses we have heard, such as that the Finance Bill(No. 4) does not matter, and that it tidies up issues. That is not the case; it is very important, and it should not have been introduced in those circumstances.43However, as the discussion in this thesis shows, members of these two parties, National and Labour, when in Opposition, exclaim in horror over the practices of the other. When the situation is reversed, and the previous complainers are then in power, they in turn receive complaints over misused procedure from those who were themselves the perpetrators in the past.

7.14. Fast-Track Electricity 'Reform' ONE EXAMPLE of the effect of some of these 33 fast-track bills could be Huge resources quickly dealt with.

that involved with the measures whereby the local electricity industry was "reformed". First, this en-

41 NZPD, 42

21 August 1990. Vol. 510. p. 3795. Mr Falloon was written to asking, inter alia, how long was the select committee hearing. The reply said, "The Librarian was unable to advise how long the Bill was with the select committee". See letter from Warren Biddington, Senior Private Secretary, to the Hon. John Falloon. 10 July 1992. 43 NZPD, 28 August, 1990. Vol. 510. p. 3981.

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abled the Labour Government to abolish the democratically elected local electricity power boards and replace them with ministerial appointees. This was done without any prior public discussion with the communities or boards involved. Now what exactly did this involve? First, there were 51 of these Boards, most directly elected for threeyear terms, but some being divisions of local authorities similarly elected. Their worth is defined by the following statistics covering the year ending 31 March 1991, namely, 21,060,540,532 Kilowatt Hours of electricity consumed, a gross income of $2,151,517,397 and $2,522,415,883 of total assets. 44 Up till the passing of this Bill, in company with its other 32 fast-track companion Bills, these power boards had been managed for several decades by board members elected by their localities, and directly accountable to them. In the last days of the 1984-90 Labour Government, these elected power boards were all replaced by new managerial boards, all selected by the central Executive in Wellington. This process was facilitated by Government using the services of a multinational consulting firm, Deloitte, Ross and Tomatsu, working with Treasury. Hon Clive Matthewson, in this context Associate Minister of Commerce and Energy, commended those who had contributed to this work saying "The consultants to the Electricity Distribution Reform Unit, Deloitte, Ross and Tomatsu, have completed a huge job. There has been an extraordinary amount of consultation in endeavouring to achieve the best use of local knowledge. I want to thank the EDRU and Deloittes for their outstanding efforts". 45 Thus prior to the passing of the measures needed to facilitate such a widespread change in structures and policy, there must have been widespread discussion as to the disposal of these sets of valuable public assets, all built up by the investment of the communities that, in the past, had supplied by way of direct election their governing boards. But these communities did not share in the discussion or the decision making process; parliamentary processes allowed no such democratic input. And so this one example shows how any Government can now easily impress its will upon a compliant House and at the same time push ahead with policies directly and suddenly affecting communities over the disposition of resources they had previously directly controlled for decades.

7.15. No Integrated Debate On The Economy THE NEW ZEALAND House of Representatives has no laid-down procedures in order Where is The Economy discussed?

to have an integrated debate on the state of the economy. This is common overseas, with Ministers and their officials having to front up to select committee examination. New Zealand has none of this. There is not even one statute empowering the House to have given to it any set of forecasts, economic or based on any other set of criteria, suitable for gauging the accountability of any Government in the performance of its duties. During the debate upon the radical changes to the local electricity industry no mention was made of the possible affect on the national and regional economies of these changes. Electricity is a basic resource upon which both the private and state sectors draw rely for economic growth.

44 See 45

Electricity Supply Industry Statistics, 1989-91 & 1990-91, Electricity Supply Association of New Zealand Inc., Wellington. Hon Clive Matthewson, MEDIA RELEASE, "Additional Appointments to Power Boards Announced", 17 October 1990.

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But the Labour Government's new energy strategy, only expressed in generalities in the related House debate, saw these up-till-now locally controlled public assets as individual, unrelated enterprises not connected to any energy policy with implications for the wider economy. They needed to be removed from their long-standing, democratic control to that supplied by centrally appointed boards heavily weighted with persons of 'business' experience. From time to time senior Government Ministers can make statements on the economy. But that is all they are, "statements". There is no subsequent debate and select committee inquiry involving examination of Ministers and submissions from even a small range of interested community groups, as overseas. The Hon. David Caygill, Minister of Finance, did make one such statement in the House on 21 March, 1989. However, this was relatively brief, had minimal debate in the House, and was not tabled as a paper for consideration by some select committee. In 1990, at the time of speeded-up Budget procedures, Mr Caygill said: The most dramatic changes in the public sector can be seen in the state-owned enterprises. I have set some of these changes out in more detail in "Economic Strategy", which I am releasing in conjunction with the Budget documents.46 However, this document was neither debated nor tabled in the Journals of the House. Also there had been a Government inquiry into the electricity industry. The Report of their Task Force, dealing with its structure, regulation and ownership, he continued, "has been presented to the Government. It will be published shortly. Our objective is to reduce costs to businesses of retail electricity, by competition and better regulation where that is necessary".47

7.16. Overseas Comment On The "Omnibus

46 NZPD, 47

24 July 1990. Vol 509, p. 2997. NZPD, 27 July 1989, Vol. 499. p. 11551. This was included

in the Financial Statement for the Appropriation Bill(No. 4), part of the 1989 Budget process. Mention of these two documents is to show that much of the important debate involved with radical change, with both economic and constitutional implications, takes place outside the House and under the full control of the government-of-the-day, and its advisers. The inquiry system of the House is both very underdeveloped and, owing to continuing executive influence, has very little power relative to other power centres in the New Zealand political system.

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The Strange Case Of The Two 1990 Finance Bills

Bill" Process THE 'OMNIBUS' BILL---the 'tacked' bill---does not exist in the legislatures Bemused comments from overseas.

of Australia, Britain and Canada. Westminster has its Provisional Collection of Taxes Act 1968 for financial measures which allows the immediate provisional acceptance by the House of certain taxation measures. These are then finally approved through the normal House and Committee stages, but under a time limit. Ottawa has very similar procedures. Canberra, Ottawa and Westminster were surveyed as to their procedures, relative to this New Zealand "fast-track" procedure. Each were sent a copy of a letter received from Mr David McGee, Clerk of the House of Representatives, Wellington, which detailed all the Bills tacked on to the 1990 Finance Bills Nos. 2 and 4. 48 The three replies received gave a clear description of the financial procedures in those three legislatures. Mr Harry Evans, Clerk of the Senate, Canberra, was quite definite as to how the New Zealand procedures measured up to the Australian experience: The proceedings which you describe seem to be most bizarre. I certainly cannot imagine something like that happening here. It is not possible to tack anything onto a tax bill here because of the constitutional provision (section 55) which provides that laws imposing taxation shall deal only with the imposition of taxation and with one subject of taxation. There is also the the provision (section 54) which provides that a bill for appropriating money for the ordinary annual services of government shall deal only with such appropriation. He said that new procedures recently put in place saw such bills were sent to specialist standing committees. Also, procedures existed for expediting procedures on bills through the use of the guillotine by the majority placing a time limit. However: In the Senate the guillotine is rarely used because of the complexity of the procedural steps required to put it into place and because of the absence of a government party majority. 49Mr Robert Marleau, Clerk of the House of Commons, Ottawa, replied very much in kind. He said that the Ottawa House had "no urgency provision for the speedy passage of legislation as in New Zealand and Australia. The government must rely on the use of closure and time allocation to limit debate on motions and bills before the House". When some emergency situation arose "there is co-operation among all parties in the House to waive usual procedures and pass legislation in a short time". Also, with the bi-cameral legislature "legislation must clear both Houses in identical form before Royal Assent can be given". However, he continued: The situation you described regarding the New Zealand budget tax bill could not hap48 Letter 49

received from Mr D.G. McGee, 31 August 1990. pp. 2. See Appendix. Letter received from Mr Harry Evans, 28 August 1990.

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pen under our procedures. Our legislative process differs in many details from that used in your House of Representatives. In the Canadian House of Commons, bills must be read a second time to committee study. After second reading in the House a bill is usually referred for clause by clause study to a legislative committee created specifically to deal with that bill. During consideration in committee, amendments may be moved by any committee member without notice, as is done in New Zealand. With the exception of some uncontensious bills and bills based on supply motions, few bills are referred to a Committee of the Whole House. When a bill is reported back from a committee, the House must concur in this report before the bill can proceed to third reading. With the exception of bills reported from a Committee of the Whole, at this stage there is further opportunity for Members of the House to propose amendments to the text of the bill. However, in general, any amendments proposed at this stage must fulfil a twenty-four hour written notice requirement and, once debate has started at report stage, no further amendments may be placed on notice. He added that Ottawa has no procedures for "the printing of in-House supplementary Order Papers as is done in New Zealand" nor can bills be divided "in the manner you describe". 50 A detailed comment on Mr McGee's letter was also received from Mr R.B. Sands, Clerk of the Overseas Office, House of Commons, London. He said, Where the urgency and nature of the legislation are matters of agreement between Government and Opposition front benches, bills can be and have been passed through both Houses with great rapidity...By contrast, where the legislation in question is controversial and its urgency is in the eyes of the Government alone, the Government has to resort to an allocated time ("guillotine") motion. Normally this is not done until the bill has been discussed for several days at committee stage and it is clear that it will not make substantial progress without a guillotine. However, he said that "tacking" as done in New Zealand, was not used and for certain reasons. "The case you describe could not happen in the U.K.; if only because (a) notice would have to be given of the New Clauses and /or amendments; (b) we do not have the procedure(which I know is quite common in New Zealand) of dividing a single bill into several Acts of Parliament".51

50

Letter from Mr

Robert Marleau, Clerk of the House of Commons, Ottawa. October 3. 1990. See Appendix. 51 Letter from Mr R.B. Sands, Clerk of the Overseas Office, House of Commons, London. 3rd October, 1990. see Appendix.

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7.17. Conclusion THESE THREE letters show quite clearly that these three Parliaments certainly Wellington needs to confer with, and compare the processes of, overseas legislatures.

have not surrendered their powers to the Executive to the degree of the New Zealand Parliament. This permits use of "tacking on" and urgency based on trite and politically specious reasons. In all three other legislatures financial or taxation measures must only contain one main item for each bill put to their Houses. Also, when urgency against the will of the Whole House is invoked, the Government majority overseas usually needs to take a more measured approach than in New Zealand. It is also worth noting that for the passing of legislation, even taxation and financial measures, these other legislatures use specialist "legislative" committees, using structures solely geared to this purpose. But the New Zealand House of Representatives still uses the single structure committee for the three very different purposes of legislation, inquiry and audit. No evidence was discovered to show that this situation will change.

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Chapter 8. Outstanding Problems Of Parliamentary Procedure THE PURPOSE of this chapter is to deal with certain aspects of the process of Do others do it any better?

Parliament and at the same time make comparisons with the British, Australian Federal and Canadian Federal Parliaments. There have been many occasions since 1951 when the Standing Orders Committee was convened. However, despite the continual reform exercises, the following instances will show that certain procedures have been put in place that do not allow either a measured, democratic process to occur or citizens to interact with the legislature in a manner where they appear as equals with the legislators. National's return to power in late 1990 is described in the middle of this chapter, which covers the period 1990-91.

8.1. Legislative Change And The Policy Community AS THIS THESIS is concerned with the inner procedural law and process of Overseas law, accountancy and others take a wide interest. Westminster 1978 reformsffParliament, it was noted that in the other Parliaments surveyed there seems a wider level of interest in this law and process than has so far existed in New Zealand. The two recent reform exercises at Westminster[1978] and Ottawa [1985] received moderate interest from their respective communities. The Westminster reform exercise had sixty-six submissions, including thirty-seven from MPs. In addition, there were twenty three oral witnesses, one from the Ottawa Parliament. The 1985 Ottawa McGrath reform exercise was larger. It had 83 submissions from MPs, and 104 from individuals and organisations representing inter alia commerce, education, religion and universities. Oral submissions came from 63 witnesses, twelve from overseas including Westminster. In contrast, the 1985 Wellington reform exercise received fifteen submissions, including one from a Minister and three from past and present MPs. Seven of these persons went on to make oral submissions. As has been previously argued, members of the law and accountancy professions would be expected to take an active interest and concern in parliamentary processes. First, the customary and procedural law of Parliaments is an integral and important part of any country's law. Second, accountancy involves the handling of money. This is the essential element of supply granted to Governments in order they may manage what is their country's largest business. Periodically Parliaments review their internal procedures. This process can improve the ac135


Outstanding Problems Of Parliamentary Procedure

countability of the Executive to citizens and taxpayers. Accountability can be heightened if there is interest, and even participation, by outside community groups, especially from law and accountancy. At Westminster in 1978 submissions came from the Law Reform Committee of the Council of the Law Society, the Council of the Law Society of Scotland, the Law Reform Committee of the Bar Council and the Consultative Committee of Accountancy Bodies, as well as the academic members of the Study of Parliament Group.1Ottawa's exercise received submissions from the Canadian Bar Association and the Law Reform Association as well as nine academics, church, education and community groups.2 In 1985 the Standing Orders Committee in Wellington received no submissions from either law, accountancy, academics or church and education groups. In order to attempt to explain the absence of professional interest, a survey was conducted of the law and accountancy professions, particularly their academics and professional associations. First, a standard inquiry letter was sent to the four university Law Faculties. This asked if the Law Faculties had any specialist working on "the internal laws of legislatures and their management statutes". The Law faculties at Auckland and Canterbury needed second letters (registered) in order to elicit replies. One was accompanied by reprinted sections from the Reports of the 1978 and 1985 Westminster and Ottawa reforms as well as a 1985 Canadian Report on budgetary improvement.3 [See Appendix for copies of letters.] The replies from New Zealand law seems uninterested. the Law Deans showed there was no interest or work done by the Law Faculties on this important area. Neither does the New Zealand Law Society take a direct interest in the inner procedural law and process of the New Zealand Parliament. The example of the New Zealand Law Society's contemporaries overseas was apparently of no consequence.4 It was noted earlier that the British legal profession had made various contributions to the 1978 Westminster reforms. There exists there a Council of Legal Education for the Bar as well as the Lord Chancellor's Advisory Committee on Legal Education and Conduct. The Committee is a body independent of the Lord Chancellor's Department and has eight lawyers and nine non-lawyers representing "the views and interests of the users of legal services". 5An approach was then made to Sir Ivor Richardson, Chairman of the New Zealand Council of Legal Education. New Zealand's equivalent body. He was asked for help in solving the puzzle as to why the New Zealand legal profession was not involved in making submissions on the parliamentary process in a manner similar to their British and Canadian counterparts. Two letters were received but no satisfactory answer obtained. Sir Ivor confused the work of the 1986 Royal Commission on Electoral Reform and the New Zealand Law Commission with that of the internal procedural review of Standing Orders inside Parliament. He confessed to no knowledge of procedures in other jurisdictions. But does he sum up the attitude of the New Zealand legal profession to this area when he says, The only further general comment about the New Zealand scene is that because it is a much smaller society than the United Kingdom or Canada 1 Sir 2

Thomas Williams, Chairman, First Report from the Select Committee on Procedure, H.C. 588-I, 1977-78. p. 54. James A. McGrath, Chairman, Report of the Special Committee on the Reform of the House of Commons, House of Commons, Ottawa. June 1985. pp. 89-93. 3 House of Commons, Ottawa, Issue No 18, Tuesday, December 17, 1985, Chairman, Albert Cooper, Minutes of Proceedings and Evidence of the Standing Committee on Procedure and Organisation respecting Committee's consideration of "The Canadian Budgetary Process: Proposals for Improvement", First Session of the Thirty Third Parliament, 1984-85, pp. 66. The Canadian Bar Association and Institute of Chartered Accountants made submissions to this Committee. 4 The President of the Law Society, Mrs Judith Potter would not be interviewed. She also refused to offer to help solve, at least in writing, the puzzle as to why the New Zealand legal profession was indifferent to the inner procedural law and process of Parliament. See Letters Appendix. 5 Mr K.J. Hart, Letter from Lord Chancellor's Department, London SW1P 2BY, 9 April 1991 and Press notice, No 31.91 of 6 March 1991.

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it is much easier for those interested to have direct access and to work more from within than outside.6Four university Departments of Accountancy were then surveyed and sent copies of U.K. and Canadian material. Three replied but the writer from Massey University was the only one au fait with the meaning of parliamentary accountability. He had previous experience of U.K. practice. He noted the U.K. Consultative Committee of Accountancy Bodies(CCAB) and its submission to the 1978 Westminster reform exercise. Furthermore, he said CCAB has an associate body, the Chartered Institute of Public Finance and Accountancy interested in parliamentary accountability, while New Zealand has no equivalent here. He also said: As far as the status of the Audit Office is concerned I tend to concur with your concerns and with those of the C & AG. The latter has undoubtedly been starved of funds for various reasons, some of which may be "sinister". Also Executives are probably loath to introduce legislation which would enable their behaviour to be scrutinised by their own backbenchers and the Opposition.7 The return letter from the University of Canterbury suggested that "the most productive area of inquiry would be through my colleagues at Victoria University". It was suggested that parliamentary accountability would surely be part of the curriculum of accountancy courses there. To this end, Don Trow, Professor of Accountancy, was again written to. However, similarly as to what transpired with the first letter sent to Professor Trow, no reply was forthcoming. 8 Mr J.T. Chapman, President of the Society of Accountants was then written Accountancy also ignores the inner process.

to. He was asked about conflicts of interest in New Zealand parliamentary procedure, which included dominance of the committee that makes the rules for Parliament by the "political" Speaker. He was asked if he had ever known an audit situation "controlled totally by those persons who act out the daytoday operations being audited". This question was posed because of the executive dominance present in the New Zealand House. He replied that parliamentary accountability was not an education option for accountants in New Zealand. He noted that the letter received introduced "a wider concept of executive power". One is left with the conclusion this was of no interest to his Society and its members. And he did not respond to the remarks concerning the absence of a proper statute for the Controller and AuditorGeneral and his Office. 9 The above research has failed to uncover the reason why, in New Zealand, the professions of law and accountancy, both in and outside the universities, are not attracted to the process of reforming the procedures and internal law of the New Zealand House of Representatives. These two professions are deeply involved in the training of lawyers and accountants for and operation in the wider business community. But as will be seen by the correspondence to and from these two professions as contained in the 6 Sir Ivor Richardson, Chairman, Council of Legal Education. 27 August, 1990. See Letters Appendix. 7 Mr Keith Dixon, Department of Accountancy, Massey University. 7 September 1990.See Letters Appendix. 8

See Appendix for letter from Mr Alan J. Robb, Head

of the Department of Accountancy, University of Canterbury. 29 August 1990 and second letter to Professor Trow. 14 January 1991. 9 Mr J. T. Chapman, President of New Zealand Society of Accountants. 25 September 1990. See Appendix.

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Appendix, every attempt was made to discover the reasons for their apparent indifference to this important question. It was also noted that the 1985 Canadian McGrath Report had received submissions on reform from education and religious groups and persons. These came, inter alia, from the Canadian Association of University Teachers as well as nine university professors of various disciplines. 10 Inquiries were made of New Zealand persons and organisations of similar backgrounds but none had ever made submissions to Wellington's Standing Orders Committee. 11 Neither were they aware that there was such a process, able to be used by persons outside the parliamentary system in order to attempt to raise the accountability of the various actors in the New Zealand political system. They also seemed unaware that this process was used by their contemporaries overseas. It is surprising, with Government and the State being our largest business, that professional interest is so lacking in raising the accountability through Parliament of what is indeed a complex and interesting set of institutions, all part of a powerful, centralised State. However, as McCarthy has shown, interest in these matters should come from an even wider range of professions. The 1962 Commission saw the need for engineers and others specialising in programming the expenditure of capital projects to be present in the inner policy development area. The trend is for policy and reform to be now conducted by many countries on an inter-disciplinary basis. 12 In this area, the New Zealand legislative policy community is very underdeveloped, and since 1985, Treasury alone having the prime role in policy development, even more restricted.

8.2. Budgetary And Financial Control DURING RESEARCH into the procedural review processes at Canberra, Ottawa and Larger societies, wider scope?

Westminster it became apparent that in the field of budgetary and financial planning control these Par-

10 McGrath 11

Report, pp, 90-93. Letters from Mr Neville Lambert, President, New Zealand Educational Institute, 12 November 1991. Miss

Shona Hearn, President, New Zealand Post Primary Teachers' Association, 25 October 1991. Mr Sam Fisher for Miss Colleen Pilgrim, Director, New Zealand School Trustees' Association, 20 December 1991. Mr John Taylor, President, New Zealand Education Forum, 16 March 1992. Rt Rev Bruce Gilberd, 11 October 1991. The Most Reverend Brian Davis, 21 November 1991. Rt Rev Roger Herft, 18 October 1991. Cardinal Thomas Williams, 27 February 1992. Miss Marie Greenwood, Acting Research Director, Joint Methodist/Presbyterian Public Questions Committee 4 October 1991. Rev Barbara Stephens, Co-ordinator, Christian World Service, 3 August 1992. Miss Lois Robertson, National Secretary, National Council of Women, 4 November 1991. See Bibliography. 12 See Evelyn Hagenah, "An Outline of the Research Group", States Functions, Zentrum fur interdisziplin채re Forschung, (Max Planck Centre for Interdisciplinary Research), University of Bielefeld, Germany. 1989.

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liaments have much more differentiated systems than Wellington's. Regular reviews of their Standing Orders deal with this important subject. While this is a huge subject in its own right and cannot possibly be dealt with fully here, it is thought necessary to draw certain preliminary comparisons. There are two reasons for this. One is to show how these Parliaments have much more formal, open systems surrounding the budget and financial processes. The other reason is to highlight an excellent New Zealand study which did recommend in years past moving to improved procedures for budgetary and financial control. But this was not taken up. Included here are Figures 8.1 to 8.4.13 The purpose in showing these Figures is not to discuss the outcomes of the studies they are taken from. It is to show firstly that the budget and financial processes of these two Parliaments proceed throughout the year to a previously agreed timetable arrived at after normal procedural review. The secondary purpose is to demonstrate that there is a great range of persons and institutions from their policy communities who normally make submissions to such exercises. Figures 8.1 and 8.2 arose from the 1982-3 Westminster House of Commons review of these procedures. Submissions came from a wide range of persons drawn from academia, commerce and accountancy.

Figure 8.1. Financial, Budget Process, Westminster. 1983. Table A

13

See FIRST REPORT from the SELECT COMMITTEE ON PROCEDURE (FINANCE), SESSION 1982-3, No HC 24-I, 11 May 1983, House of Commons, London. White Paper, THE CANADIAN BUDGET PROCESS: Proposals for Improvement, Honourable MICHAEL H. WILSON, Minister of Finance, Department of Finance, Ottawa, CANADA. May 1985. Proceedings and Evidence of the Standing Committee on Procedure and Organisation RESPECTING Committee's consideration of "The Canadian Budgetary Process:Proposals for Improvement". CHAIRMAN: ALBERT COOPER, HOUSE OF COMMONS, ISSUE NO 18, TUESDAY, DECEMBER 17, 1985. First Session of the Thirty Third Parliament, 1984-85, Ottawa.

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Figure 8.2. Financial, Budget Process, Westminster. 1983. Table B 140


Outstanding Problems Of Parliamentary Procedure

Figure 8.3. Budget Process, Ottawa. May 1985 141


Outstanding Problems Of Parliamentary Procedure

Figure 8.4. Budget Process, Ottawa. Dec 1985 142


Outstanding Problems Of Parliamentary Procedure

14

The use made of committees is worth noting. First, Standing Committees are used for the Finance Bills.

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Outstanding Problems Of Parliamentary Procedure

Then the Treasury and Civil Service Select Committee undertakes inquiries as part of the Ways and Means procedures. It is here that Ministers and their officials have to account, orally at least, for their performance of managing the economy.15 Also there is the Select Committee for Public Accounts (PAC) with its Opposition chairman as well as the departmental committees studying the various estimates. This, in fact, is the system mentioned in Chapter VI by Mr David Pring but which escaped the attention of Mr Palmer. Figures 8.3 and 8.4 came from an Ottawa study when the Hon Michael Wilson, Canadian Minister of Finance, tabled a public White Paper for an improved Budget process. The Ottawa Commons Standing Committee on Procedure and Organisation instituted a public review of this and received, like the Westminster committee, a wide range of public submissions and witnesses. Of particular note were those from the Conference Board of Canada, the Chamber of Commerce and the Canadian Tax Foundation. This latter body is formed jointly by the Canadian Bar Association and the Canadian Institute of Chartered Accountants. Also, the Parliamentary Press Gallery made a submission, for one of the subjects brought up by Mr Wilson's White Paper was that of improving the system of pre-budget "lockup" for journalists and consultants. 16 (Canadian Tax Foundation One of the considerations of these reviews was the place of long range public expenditure capital projects. The several British industrialists noted were extremely concerned over this. But this had been a similar concern of the 1962 McCarthy Commission. They had drawn from the British Plowden Report which "made its most important recommendations in the field of long-term expenditure planning". 17 McCarthy had also expressed interest in this subject and had stressed the need to follow overseas examples and move the whole consideration of government accounting and planning into a multi-year basis. It said that "while the system of annual estimates and votes may be an admirable basis for the control of expenditure, it is a crude basis for planning expenditure...It is necessary for departments to look ahead not one or two years, but five, ten, and sometimes more". 18 Canada now has a variant of this system. For example, Section 7.1 of the protect Canadian Developments.

Canadian Financial Administration Act talks about the "review of annual and longer term expenditure plans and programs". There is "a Revenue Plan and an Expenditure Plan, projecting up to four years into the future; and the preparation of Multi-Year Operational Plans(MYOPs) for individual government programs, extending three years into the future". 19 Australia has also moved away from the single-year approach to departmental budgeting. For instance, in discussing "Forward Estimates" the Commonwealth Financial Management Handbook says under 4.10 "The Budget process is now based upon a system of rolling forward estimates.....They cover outlays for the three years following the Budget year".20McCarthy's recommendation to go to multi-year budgeting, better to plan and give early warning to the community of the intended impact of government expenditure programmes, was never taken up. New Zealand's government accounts only dealing with the current fiscal year are submitted to Parliament. Also, at the time of the McCarthy Commission there was the Ministry of Works, providing advice to government concerning long range capital expenditure projects. It has been noted that the Westminster 15

This Westminster work has been noted in D.K. Sheppard and Jan L.

Whitwell, The recent conduct of monetary policy in New Zealand:the theory and the practice, Discussion Paper No 9, Victoria University Association of Money and Finance. September 1990. See referred paper by Westminster's Treasury and Civil Service Committee, Mr Edward du Cann, Chairman, Monetary Control, HC 713, 1979-80. This showed the damaging effect of monetary policy on the productive sector and the doubts as to the efficacy of econometric models. 16 Personal correspondence from Hon. Michael H. Wilson, Canadian Minister of Finance, April 13, 1988. This discussed proposed improvements to the Canadian budget process set out in the White Paper. See footnote No 13 and Letters Appendix. 17 John Garrett, The Management of Government, Penguin Books, London, 1972. p. 105. Garrett, J.L., 1931-, Labour, Norwich South, 1987-. 18 McCarthy, p. 73. 19 "Expenditure Planning and the Supply Process", Treasury Board, 1991-92 Estimates Part I, Chapter 7, p.77. Supplied courtesy Hon Don Mazankowski, Minister of Finance, Canada. 20 Commonwealth Financial Management Handbook, Australian Government Publications Service, 1992, p. 31.

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Outstanding Problems Of Parliamentary Procedure study also concerned itself with this area, receiving submissions from departmental sources such as the Ministry of the Environment. But the Fourth Labour Government abolished the Ministry of Works and Development [emphasis added]. Thus today, no public agency exists advising governments or the community on capital project planning and the social and environmental impact of expenditure programmes. Neither does the House of Representatives have in its procedures any place for regular reviews of the substantial amount of public "capital estate" in existence. 21 One example of these procedures is also found in operation in Australia where Government receives the sort of planning information on capital projects previously provided here. One report to the Minister of Finance said: protect Australian developments.

â&#x20AC;˘ ...the Government is being provided with a comprehensive view of capital works strategies across all portfolios together with intentions in regard to all significant new works planned to commence within the forward estimates period. â&#x20AC;˘ the preparation by the Department of Administrative Services and Finance of summary information on capital works' intentions to assist the Government take decisions at the relevant stages of capital works approvals and budget processes; andimproved integration of the capital works approvals and budget processes. 22 Other Australian work had discussed, under the heading "The Time Perspective of the Budgetary Process", the need for forward planning procedures that are also linked to the single-year approach, saying, The issue then becomes not multi-year appropriations or rolling expenditure plans but the preparation and execution of the annual budget within a multi-year perspective, i.e. considering future costs and benefits when formulating budget requests. This is merely another facet of the point discussed earlier - the need for incentives for medium-term efficiency or good performance.23 This lack of a modern approach to this important process was discussed with both Dr Graham Scott, Secretary of the Treasury and Mr Donald Hunn, Chairman of the State Services Commission. 24 Scott said that 21 This large U.K. environment department has in it the equivalent of our previous Ministry of Works and Development providing advice on all aspects of building and construction to government and the private sector. The 1972-75 Labour government had added the words "and Development" to the title of the Ministry of Works. 22 Michael Keating, Secretary, ANNUAL REPORT of the Department of Finance, Year ending 30 June 1988, For Senator the Hon. Peter Walsh, Minister of Finance, 26 October 1988. Australian Government Publishing Service, Canberra, ACT 2601. p. 35. 23 D.A. Shand, Chief Director of Audits(Resources), AuditorGeneral's Office, Victoria. "The Budgetary Process and Departmental Management", 1984 Government Accounting Research Lecture, Australian Society of Accountants, Canberra. 1984. p. 6. 24 See Bibliography for List of those persons interviewed on the role of Treasury.

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Outstanding Problems Of Parliamentary Procedure

"it would be a good idea to publish some form of the medium-term estimates but that it would be up to politicians and they would have to provide the resources". Hunn agreed but could give no reason why the recommendations of the McCarthy Commission in 1962 had not been acted upon. 25

But the New Zealand Treasury is not tied, in its overall range of responsibilities, to an Act as clear and specific as, say, the Canadian Financial Administration Act. After 1984 the Labour Government greatly extended the powers of the Treasury, but did not codify this in any new statute spelling out its new policy roles. Lack of statutory definition of full role of NZ Treasury.

A Treasury lawyer was questioned on this lack of statutory definition. He replied that departments needed statutes to define clearly their roles but that Treasury was different. He said, "Anyway, if you define our functions you limit and question our jurisdiction". 26 Sir Thaddeus McCarthy was written to as to the reasons why certain of the recommendations of his Commission had not been introduced, specifically, the intended move to go to the publishing of the 3-5 years forward estimates of government expenditure and the increased role of the Ministry of Works in the role of technological policy formation. He was told that Labour had promised this in their election Manifesto in 1984, but had reneged on this. Also, that Sir Frank Holmes' 1976 Task Force had also recommended this.27 Sir Thaddeus wrote that he thought the fault in not accepting and developing these ideas for New Zealand lay at the feet of the State Services Commission and the state sector unions.28 Mention of the State Services Commission, a prime control department,

Constraints of managerialism.

relates in this context to analysis done by Professor Anna Yeatman of the new scientific managerialism, as previously discussed by Bulpitt and Mulgan. She points out that the old-type public service manager, (she calls them "mandarins"), now had their previous brilliance "fenced in and about by performance agreements, and his/her vision for a good society, requiring as it does long-term strategic policy frameworks and planning [emphasis added], must be surrendered to the short-term considerations of results-oriented management and doing more with less".29 Thus the structural reforms brought in by Labour after 1984 accented this Limited vision, short-term aims. 25 Tom 26

McRae, "The treasury system", National Business Review, March 4, 1988. p. 20. Tom McRae, "New Zealand:A place where time stood still", National Business Review, August 29, 1989. Interview with Mr Ivan Kwok, Treasury lawyer 31 July 1987. 27 Sir Frank Holmes, Chairman, Task Force on Economic and Social Planning, New Zealand at the Turning Point, Minister of National Development. Wellington. December 1976, This advocated showing to the community the full cost of government policies and "give the private sector a more accurate indication of the implications for it of likely future developments in the public sector". p. 249. 28 Personal communications from Sir Thaddeus McCarthy, 15 November 1988 and 25 January 1992. 29 Anna Yeatman, "The Concept of Public Management and the Australian State in the 1980s", Australian Journal of Public Administration, Vol XLVI, No. 4., Australian Regional Group, Royal Institute of Public Administration, Sydney. December 1987. p. 341.

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Outstanding Problems Of Parliamentary Procedure

short-term approach to the detriment of developing some forward vision through public service structures geared for this purpose. They in fact, destroyed such structures, as has been shown. McCarthy stressed that the Ministry of Works had a long-term orientation in its capital works planning approach; he wanted this applied across the board within the governmental expenditure and budgetary control systems. But this was not done, and after 1984, the reforms and changes to the Public Finance Act and the Reserve Bank Act ensured concentration on the short-term approach to policy development. In turn this only encouraged the development of a new technical intelligentsia skewed to "philosophical indifference, and teleological promiscuity, that is a willingness to pursue any given end". 30 But, since 1984, the House of Representatives has failed to bring in modern budgetary examination procedures so as to improve invigilation over the performance of these departmental cadres entrusted with economic and budgetary management procedures. Better inquiry system urged. Professor David Sheppard had also researched Westminster practice and said, I am very impressed with the way Westminster's committees bring in experts, some obviously on a volitional basis. This enables hard questions to be put to the Treasury and the Bank of England authorities...One is impressed with the performance of committees such as that chaired by Edward du Cann. 31 They rigorously examined the monetary policies of the Chancellor and the Governor of the Bank of England. We need this level of inquiry here to publicly examine the likes of the Bank of New Zealand, the National Provident Fund and the Development Finance Corporation. It seems extraordinary that the type of inquiry we tend to launch in the 1990s can be a very self-serving one. One was conducted over the BNZ [Bank of New Zealand], but it was an in-house affair. Using Michael Fay, Lindsay Pyne and another staff member is a rather ridiculous form of inquiry. Parliament should set up a sub-committee to examine banking and financial institutions. We need this sort of contestable approach.32 Concern has also been expressed over the tendency for Governments to push protect Concern over lack of consultation. legislation through with it acting retrospectively. One comment came from Mr Henry Lang, former Secretary of the Treasury who said "The way the government was handling economic policy amounted to a serious breach of constitutional conventions". He was deeply concerned at these breaches, particularly over retrospective legislation and the lack of consultation with key parties over policy-making matters 30 Yeatman, p. 344. 31 See Footnote No. 32

25. Professor David Sheppard in Tom McRae, "Backbenchers need to find a voice", The Dominion, Wellington. February 26, 1991.

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Outstanding Problems Of Parliamentary Procedure including taxation. "There is too much retrospective legislation. This is a serious state of affairs for the consultative process and is creating great uncertainty and lack of confidence".33 It was also noted that "The proposed Reserve Bank Bill proposed to legalise retrospectively monetary policy as practised in the post-1984 period". 34However, while Governments are free to use their House majority to ram through in haste even legislation having an important effect on economic policy direction, bills with a retrospective slant will surely continue.

8.3. National Comes To Power ON NOVEMBER 1990 the National Party again became Government, following a general election. Labour had been in power for two three-year terms, its majority in the 1987 general election falling to 17 in the now 97 seat House. The Democrats lost their two seats. But in 1990 the National Party attained a record majority of 37, a huge swing of 44 seats in its favour. This gave it 67 seats to Labour's low of only 29 seats. Mr J. Anderton, Member for Sydenham and previously President of the Labour Party, had formed the NewLabour Party. 35 National had given prominence to its Economic Vision document in its election campaign. This was part of a special economic booklet of thirty-four pages containing a copy of a speech given by its leader Hon J.B. Bolger when he opened the election campaign on 2 March 1990. He said that this document was "the mission statement of the next Government of New Zealand". Policies were to be put in place "to shift the balance of resources from the State towards the private enterprise sector...National will remove progressively a series of taxes that are draining the life out of business and hampering savings and investment decisions". He talked about National's planned new Enterprise State. There was a need to redesign the Welfare State which "is at Halt 'decline' by a new design of the Welfare State. the heart of any serious programme to rescue New Zealand from continuing economic decline". 36 This is germane to Boston's discussion of Managerialism and the New Public Management. He shows that these sets of ideas are "variously referred to as corporate management, the new managerialism, and the managerialist revolution". 37 National appeared to be set to continue the type of technocratic managerialism discussed by Mulgan in Chapter VI.38

33

Terry Hall, "Warning over policy threat to constitution", The Dominion, March 3, 1988. H. G. Lang, ONZ 1989, CB 1977, Secretary of the Treasury 1969-77, was then speaking as Chairman of the Government Life Corporation, a statutory body. 34 Sheppard and Whitwell, p. 1. 35 Mr J.P. Anderton left the Labour Party in 1989 when he founded the NewLabour Party. He entered Parliament on 14 July 1984. 36 C.Flook, Secretary-General, New Zealand National Party, National's Economic Vision, National Party, Wellington. 2 March 1990. pp. 31-32. 37 Boston, J. "The Theoretical Underpinnings of Public Sector Restructuring", in Reshaping the State, New Zealand's Bureaucratic Revolution, Oxford University Press, Auckland, 1991. p. 9. 38 See also National Party Policies of the 1990s---Creating a Decent Society, National Party Wellington. 1990. pp. 30. Mr Bolger often used the theme of "The Decent Society" which is related to Bulpitt's analysis of "moral force monetarism". See Bulpitt, p. 33.

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8.4. National's Views On Parliament IN CONTRAST to its technocratic and private sector based approach to wider National proposes drastic reform of procedures.

community economic and social development, National surprisingly stated a totally different, democratic and participatory view on how to reform Parliament. It was called Improving New Zealand's Democracy, part of their proposed wider reforms on the electoral system. 39 National pledged a new approach based upon reconciliation. One section named "The Challenge" says, Over the past six years an increasing number of New Zealanders have come to feel alienated from the political process, and cynical about the system through which decisions are made. The Labour Government has made decision after decision without regard for either their election promises or public opinion. Parliament has been used as a rubber stamp for decisions of Cabinet, often with little or no opportunity being given to the public to have their say. Too many New Zealanders feel powerless to influence government; too many New Zealanders no longer believe that their voice can make a difference. This development has serious implications for our democracy. National's challenge is to rebuild the respect and confidence of the public in our democracy. After this opening gambit to win the hearts and minds of the New Zealand electorate, National promised to Review the Standing Orders [of Parliament] that currently allow the Government to change the law by way of omnibus bills without going through the select committee process,40 Review the Standing Orders which currently allow urgency to be taken to pass a Bill through all its parliamentary stages in one sitting, with a view to providing additional restraints on its use. National's approach was to be different. It would encourage "participatory The new broom to cleanse the stables. 39

National's Policy on Electoral Reform, No 31, Spokesperson:Murray McCully MP, Improving New Zealand's Democracy, pp. 5, released 11 September 1990, NZ National Party, P.O. Box 1155, Wellington. 40 An example of "omnibus bills" is found where the 1990 Finance Bills 2 and 4 are previously discussed.

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Outstanding Problems Of Parliamentary Procedure democracy", saying that "representative government cannot be effective unless people" are involved at all levels. Members of the public would be given more opportunities within the system "to influence the decisions made by the government". It was no longer acceptable to allow "government to ride roughshod over the wishes of the public, as Labour had done". National said, "Public concern about the decisionmaking process stems from Labour's abuses of Parliament, which is often used as little more than a rubber stamp for decisions made by Parliament".41 In its programme for parliamentary reform National again is seen to take the moral high-ground to describe to the electorate its intentions. It claims that it is aware of the challenge, that if it is given office, it will have "to restore public confidence in the electoral process .... National aims to regain public respect for the institution of Parliament". But it states that it is well aware that it will have to go well beyond the mere stating of initiatives in any Electoral Policy Document. It says that it will also need to put in place, something else from those charged with governing this country:integrity. "Moral force" monetarism peeks through. The new National Government intends to display integrity by implementing the policy commitments it has made, and by consulting with a wide range of New Zealanders along the way. National intends to involve the public in making the decisions that will help determine their future and that of their country.42

8.5. National's 1991 Budget THE 1991 BUDGET statement was read by Hon Ruth Richardson, Minister of Finance, during the evening sitting of the House on Tuesday 30 July 1990. The usual Budget and Appropriation estimates papers were then tabled.43The House then went into two extraordinary sessions under urgency, all in the Committee of the Whole House. The first lasted four days until 11.30 p.m. Saturday, 3 August 1990. It involved one all-night sitting in a continuous period of 32 hours as well as four day sittings to midnight of 15 hours duration. The House normally does not sit on Friday, Saturday, Sunday and Monday but after sitting on this occasion on Friday and Saturday resumed on Monday. It then sat in a second session until 10.28 p.m. on Wednesday, 7 August 1991 with sittings of 13, 14 and 15 hours respectively. An eight-page flow-chart of the progress of this Budget has been prepared National shows its true colours.

to enable better comprehension of this extraordinary budget process. [See Figure 8.5] Two aspects of this stand out and clearly illustrate how New Zealand Governments can freely manipulate the procedures of the House of Representatives. One aspect is the freedom with which the Government Leader of the House can put down a Motion claiming urgency. It is based upon an unclear definition of the "public in-

41 National 42

Party Electoral Policy "flyer". pp. 1-2. Murray McCully MP, National Spokesperson for Electoral Reform, National's Policy of Electoral Reform, National Party, Wellington, 1990. p. 5. 43 Budget 1991-Speech and Annexes. B 6.* 344 Budget 1991-Economic Commentary and Tables. B 6A. * 345 Estimates of Annual Appropriations and Departmental Budgets of the Government of New Zealand, for the Year Ending 30 June 1992. B 7(Pt I). from Journal of the House, No 91.20, p. 9. Wellington, New Zealand. Published by Order of the House of Representatives-1991.

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terest", previously discussed. The other aspect of House procedure is how new Bills can, without notice, be suddenly produced on a Supplementary Order Paper tabled by the Minister, or Member in Charge and then "tacked" onto the main Bill previously on the Parliamentary Order Paper, all in the manner previously discussed. The Standing Orders say that "money bills" may not go to a select committee. These are only handled in the Committee of the Whole House procedure and do not go for select committee consideration. Thus if new bills are produced by way of Supplementary Order Paper into the House during the handling of a money bill they can become part of the money bill process and follow its rules. These bills are "tacked" on to the main money Bill and can escape select committee and normal House procedure. Passage of a bill through select committees necessitates prior notice being which a government might not want. As the process now stands this "tacking" on still allows certain interest groups privileged entry to the system where policy development leads to new bills. But this covert process now also allows the insertion of what really is only new policy into the normal budget process. This has been one of the main reasons for the budget process in New Zealand having degenerated very much over the years into the spectacle whereby any governing party, and its attendant interest groups, can now swamp the budget process with its expression of new policies. These bills can then be hustled through without notice or proper discussion within a democratic framework. Regrettably, the political language, and that of the media, now only calls this process "The Budget", despite it having moved far from any pure economic and financial budgetary process as at Canberra, Ottawa and Westminster. As has already been discussed, these Parliaments do not allow this regular, but covert, passing of a wide range of extra, new policy instruments in this fashion.44The contrast between Figure 8.5 and Figures 8.1-4 is obvious.

8.6. National's 1991 Budget Moves Forward THE NEW ZEALAND House of Representatives freely allows any Government the House procedures taken to their limit.

use of urgency Motions without real question of their justification. This procedure was now used by the Hon Paul East, the Leader of the House, on the night of Tuesday 30 July 1991: 13. Urgency-the Honourable Paul East moved, that urgency be accorded the introduction and passing of the Social Welfare Reform Bill, the Finance (Revenue) Bill, the Finance Bill(No 2) and the Health Reform Bill(and any bills into which those bills may be divided), and the introduction of Government bills.45 Thus, the omnibus bills inveighed against in National's 1990 Electoral Reform Policy began to spew forth onto the floor of the House in such form and number that the 1991 Budget made the constitutional aberrations in Labour's two 1990 Finance Bills seem mild in contrast. The first milestone was the Social Welfare Reform Bill which validated the cross-matching of information between the Inland Revenue Department and the Department of Social Welfare. It also proposed information and identity cards for the use of all community groups with different income and beneficiary status. These procedures defined

44

Mr Rex Mason MP referred to this matter in chapter II. He noted that extra policy matters had been "tacked" onto finance bills ensuring scant scrutiny under urgency. He noted that before 1914 this practice had not occurred in the New Zealand Parliament. 45 Journal No 91.20. House of Representatives, Wellington. p. 9.

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those who needed to pay for public health services at various levels or receive free medical attention. The bill was then split into five, all separate Acts finally becoming law on Thursday 1 August 1991. Next was the Finance(Revenue) Bill. The usual practice is to put through, under all-night urgency, the usual tax increases signalled in the Budget statement. However, this was split into four separate Acts and included other taxation measures. These became law on Wednesday 31 July 1991, all without any select committee consideration. The Health Reform Bill came next and it abolished the democratically elected area health boards. There was no prior discussion, and as for all these bills, no opportunity for public submissions. The Bill also introduced a set of direct patient charges for hospital treatment at various beneficiary levels. This produced two Acts made law on Friday 2 August 1991. The blockbuster omnibus was the Finance Bill(No 2) which contained amendments to 22 existing Acts. The Government divided it into twenty four pieces of legislation. Seventeen of these were passed into law between 8 August and 27 September.

8.7. The Scale Of The 1991 "Budget" Exercise THE 1991 BUDGET is a difficult item to handle well in the context of this National's 'Decent Society' starts to appear.

thesis, concerned as it is with practices and procedures. Nevertheless some attempt is made here to give any reader some appreciation of the immense structural changes to New Zealand's public administration set in train during the period 30 July to 7 August 1991. The eight page flow-chart (Figure 8.5) will aid comprehension of the scope, rapidity and the time-scale of the changes brought in. It is not thought necessary to extend this discussion using the same detail employed when Finance Bills Nos. 2 and 4 of 1990 were dealt with in Chapter 7. The only difference in this instance is that the use of urgency is the same in principle, but a more extensive application is seen. A second step is to bring in a brief discussion concerning only three of the public departmental areas affected by this Budget, namely health, social welfare and housing. The message of the scale of enterprises involved and annual inputs is seen through an examination of the 1991 Annual Estimates of Expenditure. The sum for the Department of Health is $3,916,233,000 and that for the Department of Social Welfare is $10,200,623,000. The Housing Corporation, a statutory body, has a gross income of about $700,000,000 and administers about 70,000 rental units. This provides some appreciation of the total public investment involved.46 But these figures, incomplete as they are, at least give some understanding of how the New Zealand House can allow a Government to push through its new policies and at the same time be forced to give little consideration to the huge, rapid changes to be imposed upon immense public enterprises and the related New Zealand communities they service. It must be stressed that use has already been made of the words "set in train" above. For in passing some of this legislation, the House was only doing just that, legitimating a carte blanche for the Government to move ahead without any clear guidelines. In the case of health, and concomitant to the abolition of the democratically elected boards, there were new government appointees to be chosen for new sets of boards. This extended to appointments at additional regional levels, as well as to 46

Figures provided by Mr Petrus Simons of Integrated Economic Services from the Annual Estimates of Expenditure. Note that these give no measure of the extensive investment in capital facilities by these agencies.

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Outstanding Problems Of Parliamentary Procedure totally new bureaucratic centres to provide direction. The House also received no tabled forward estimates of the costs of these new-level structures nor the costs of the change process. Also no information was tabled on how the changes were to be monitored so that costs could be contained.47 Page 8 of the Flow Chart shows National's Hon Paul East, Leader of the House and his opponent Rt Hon Jonathan Hunt, Shadow Leader ending the debate. In their remarks there seems little evidence of sorrow for the manner in which this process had been conducted, or even some small element of shame showing that they must really do better next time. Instead, they come over as members of teams in a sport that might have lost relevance for many of its usual paying spectators but still, in the context of that sport, are only left with a feeling of relevance for each other. Put more simply, this interchange could confirm the impression that Messrs East and Hunt shared the same political philosophy.

Figure 8.5. Flowchart of 1991 New Zealand Budget Process. pp 8

47

Note that the House of Representatives has no automatic

procedure to immediately change Standing Orders to include new agencies such as these created and turned into statutory bodies from departmental structures previously monitored under Appropriation Act procedures.

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Figure 8.6. Flowchart of 1991 New Zealand Budget Process. pp 8 154


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Figure 8.7. Flowchart of 1991 New Zealand Budget Process. pp 8

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Figure 8.8. Flowchart of 1991 New Zealand Budget Process. pp 8

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Figure 8.9. Flowchart of 1991 New Zealand Budget Process. pp 8

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Figure 8.10. Flowchart of 1991 New Zealand Budget Process. pp 8

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Figure 8.11. Flowchart of 1991 New Zealand Budget Process. pp 8

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Figure 8.12. Flowchart of 1991 New Zealand Budget Process. pp 8

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8.8. External Comment On The 1991 Budget THERE IS no place in this thesis for comment on the hundreds of divisions taken during this 105 hours day and night urgency session. Neither would it serve any purpose to quote extensively from the press coverage noting exhausted and rudely awakened Members responding to the succession of quorum calls as the Government pushed to use its majority in the House.48The term "The Mother of All Budgets" has gone into popular jargon. Wellington's Dominion newspaper of 31 July had banner headlines saying, Critics abound.

"Harsh Medicine", and its editorial of 2 August defined its view of the Health changes with the title, "A Leap in the Dark". Mr B.H.C.Tyler, the Controller and Auditor-General, also spoke out about this extraordinary Budget urgency session. A section of his report said, I would be remiss in my wider responsibility to the public if I did not point out the adverse effect on public administration and financial management of according urgency to much of this legislation. Good public administration is based upon sound policy and, when required, a clear statutory base. Without such a base, the best efforts of administration could be to no avail. The effect of legislation prepared in haste, often without adequate consultation, and passed in urgency, is all too often inefficiency and confusion. Such legislation can also lead to the unsound application of public funds and the need for remedial amending legislation. 49 However, there was no parliamentary response to this strong Report. Today in New Zealand, an Officer such as Mr Tyler has little real influence. The House and its Members have long since lost any incentive to challenge the Executive over such matters. As previously stated they have even lost the power of selecting such Officers as those who, nominally are their direct servants. Accountability is at such a low level that even such a strong comment received little attention. But it would surely be a blast from the New Zealand Herald that described this 1991 Budget in the terms needed. They stretched to the imagery of the Prague Spring for "jackboot" language suitable for this Budget exercise. 50They said it was only a few years past when the main architects of the 1991 Budget, Miss Richardson and Messrs Bolger, Birch and East, were railing strongly against Labour's arrogant attitude to the parliamentary process. Their forgetting this caused the Herald to quote, in an italicised subheading, from the dissident Czech writer Milan Kundera:

Doublespeak exposed.

48 The 49

quorum for the House is fifteen Members. B.H.C. Tyler, Controller and Auditor-General, The Audit of the Crown and Government Departments, Year Ending 30 June 1991, Parliamentary Paper B1 [Pt II], House of Representatives, Wellington. p. 16. 50 Andrew Stone, "With the jackboot on the other foot", New Zealand Herald, Saturday, August 10, 1991.

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The fight of the individual against tyranny is the same as that of memory against forgetfulness. Both Mr Bolger and Miss Richardson had used the word "jackboot" to define Labour's past behaviour. She was described as one who had complained of Labour's "procedural arrogance" in the past whereas now, as Minister of Finance, she had herself become "the mother of a few policy problems in the last fortnight". Mr Birch, now number three in the Cabinet, had said, when in Opposition that "legislation is bulldozed through Parliament by the Government's majority. Government back-benchers are cannon fodder, voting fodder". Mr East, now the Leader of the House and Attorney General today, was caught last year, saying "A National Government...will give Parliament the respect it deserves". Later the Herald said "The Government's spinetingling first Budget put its promise to the test. The outcome was the smashing of parliamentary records and the ceaseless ringing of division bells that made the Chamber seem like a gym(nasium) full of boxing bouts...The futility of pressure cooker lawmaking was best revealed when the Minister of Health, Mr Upton, stood confused in the Chamber wondering which lobby to head for. He turned to a Labour Member for directions: "Am I supposed to be there"? 51 Even Government members were critical of the speed with which the legislation was being hustled through the House. "I'm ff-f-flaming tired", the Government Te Atatu MP, Mr Brian Neeson, said on his way to the debating chamber. "This is crazy, you can quote that, its crazy. I'm whacked. Everyone's whacked". Government MP for East Coast Bays, Mr Murray McCully, said, "This is a stupid process and its the Government's fault". He also said that "Budget urgency should be reserved for only fiscal measures but officials used it to try and push through other measures and ministers have erred by letting them get away with it". 52 The press report continued: Parliament took urgency last Tuesday, ostensibly to pass legislation required to put into effect measures announced in the budget. The debate has continued since from 9 a.m. until midnight every day, except Sunday, and with one all-night session which went from 7.30 p.m. until 8 a.m. without a break. Much of the material now being debated has nothing to do with the budget.53 Such a situation provides a good example of how the New Zealand House of Representatives is used by the Executive, and its official advisers. However, as previously discussed, financial and budgetary management has slowly fallen into laxer ways since 1914. In the research for this thesis only Mr Rex Mason was found to have made complaint, that of 1952, over the misuse of urgency and the tacking-on to Finance Bills of other bills of a non-budgetary nature. But over the period studied, Labour with its 1990 Finance Bills Nos 2 and 4, and National with its 1991 Budget both breached what few conventions remained in House budgetary and financial procedures. This enables any Government to ramrod through, without normally accepted community and committee consideration, wide legislative changes covering such areas, in this instance, as health and welfare policy, plus local authority and power distribution technical restructuring. 51 Ibid. 52

New Zealand

Press Association, "Marathon debate hits 'new depths' ", New Zealand Herald, August 7. 1991. 53 Ibid.

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But it is easy to suggest that the New Zealand House of Representatives, in allowing the Executive such unilateralist procedures, acted in some original manner different from norms studiously maintained by other legislatures world-wide. This is not so. In this context, a good example to study is that The Legislature suborned.

as detailed by David A Stockman, United States President Ronald Reagan's first Budget Director. He employed a strategy that was part of the "Reagan Revolution", involving as it did the ramrodding of that first Budget through the U.S. Congress. As he said: My fixation on the exacting math of the program implied a stunningly radical theory of governance. The constitutional prerogatives of the legislative branch would have to be, in effect, suspended. Enacting the Reagan Administration's economic program meant rubber stamp approval, nothing less. The world's so-called greatest deliberative body would have to be reduced to the status of a ministerial arm of the White House. 54 As Stockman tells it, this is what happened, with the previously accepted constitutional conventions swept aside. The Congress was, for a while definitely made a 'ministerial arm of the White House'. Another related insight into this period was provided when Mr Stockman gave a series of interviews to explain the background to these policies of the Reagan period. When written up, part of the resultant article said: Yet he was conceding what the liberal Keynesian critics had argued from the outset the supply-side theory was not a new economic theory at all but only new language and argument to conceal a hoary old Republican doctrine: give the tax cuts to the top brackets, the wealthiest individuals and largest enterprises, and let the good effects "trickle down" through the economy to reach everyone else. Yes, Stockman conceded, when one stripped away the new rhetoric emphasising across-the-board [tax]cuts, the supply-side theory was really new clothes for the unpopular doctrine of the old Republican orthodoxy. "It's kind of hard to sell 'trickle-down,' " he explained, "so the supply-side formula was the only way to get a tax policy that was really 'trickle-down'. Supply-side is 'trickle-down' theory".55 Another commentator said: The forthright nature of the interview provoked a certain stir: members of the administration were disturbed by the candour; some critics seized happily on the admission; and Mr Stockman was said, although it was later denied, to have been taken to task rather severely by his President. 56 54

David A Stockman, The Triumph of Politics, The Crisis in American Government and how it Affects the World, The Bodley Head, New York. 1981. p. 170. Also see Patterson and his remarks on US Congress. Footnote No. 54, Chapter I. 55 William Greider, "The Education of David Stockman", The Atlantic, Volume 248, No. 6. 1981. p. 46-47.

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However, before there is speculation that this is the model that Labour, in 1990, and National in 1991, copied, it must be stated that that is for others to engage in. But with Stockman using the term 'fiscal responsibility', and having a strategy he named as the 'Bipartisan Coalition for Fiscal Responsibility', and with the present use of this term in New Zealand, such speculation may be worthwhile. 57 Fiscally Ir-responsible?

8.9. Lack Of Publicity For Reform Exercises ONE ASPECT of executive dominance is that it surely occurs because the review Occult procedures ensure low awareness.

processes in New Zealand are far removed from the public consciousness. Sir Basil Arthur, original Chairman of the 1985 Standing Orders Committee, was written to suggesting that certain "opinion leader" groups could be asked to give submissions to his Committee. He replied: Your suggested list of those from whom submissions should be sought is interesting. All are free to make submissions if they wish, and the opportunity has been reasonably well publicised. The Committee would not wish to put pressure on anybody to present evidence.58 The fact is that reviews of Standing Orders are not well publicised. Advertisements, if used, are usually placed in most main newspapers; but these are small single-column inserts hidden in the "Public Notices". In Australia, for instance, when the Canberra Senate conducts inquiries its committees will even go as far as to put full details of planned inquiries into academic journals in order to alert academics specialising in legislatures. Barker says: the general C19th style of all public commissions and parliamentary committees of publishing their terms of reference or topics of inquiry and then waiting for interested groups and persons to submit written evidence, instead of adopting a more modern social science-oriented strategy of investigation and discovery, is a continuing weakness, although there are various examples of such committees avoiding this criticism by adopting a more positive approach to their task.59 Many of the Standing Orders exercises studied were not advertised in the media. There is no set procedure ensuring that, when the time comes for changing the rules of the House, publicity is used to attract submissions. Furthermore, the process of reforming the rules of the House has no permanent status itself. The Standing Orders Committee is only an ad hoc committee. The Standing Orders themselves 56

John Kenneth

Galbraith, The Culture of Contentment, Penguin Books. pp. 107-108. 57 Stockman, p. 58. 58 Letter from the Speaker Hon Sir Basil Arthur, Bt., 1 February 1985. 59 Barker, op. cit. pp. 222-3.

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make no mention of this Committee or any procedure committee. This is in stark contrast to the Standing Orders of the abolished Legislative Council. In such circumstances the process is open to manipulation and free interpretation by the Executive as has been seen when successive prime ministers introduced the debates on their draft Standing Orders. Thus there are difficulties when new MPs appear on the legislative scene who wish to democratise and open up to the public gaze the procedures of Parliament. As Sir Guy Powles said, It will be interesting to see how Geoffrey Palmer can maintain his stand and his support from members of his Party on this issue[of reform of parliament] now that he is a leading member of the Executive, whose powers he has proposed to curtail.60 One study looked at the role of backbenchers vis-Ă -vis the Executive and asked "How much power can those at the lower social level in our own parliamentary system really exert, even to alleviate their own claimed deficiencies in work-style"? 61 Against a dominant Executive, present circumstances will inhibit back bench MPs making reform of parliament a subject occupying a wider place in the public consciousness.

8.10. Public Service Power Over Select Committees ONE COMMENT on the New Zealand parliamentary scene also notes the activity of The power of the bureaucrat.

"those public servants in the departments of state that in our strange system service Parliament to a much greater degree than they account to it".62This was a reference to the high degree to which public servants provide expert and administrative advice for parliamentary committees, as opposed to giving evidence before them. As far as one can ascertain this arrangement has not been formalised, just accepted as custom over many years. Labour's 1984 election manifesto did promise to provide extra resources for select committees saying, they would "provide for Select Committees to have advice, independent of Government, available to them...The Committees will be provided with adequate research staff, on secondment from the Public Service. Staff will be answerable to, and controlled by, the Committee".63 However, in 1987 the Business Committee of the House produced guidelines which included, inter alia, a codification of the place of public servants in relation to select committees. In discussing the handling of bills it said,

60

Correspondence from Sir Guy Powles, 8 February 1985. Emphasis in original. Sir Guy is a lawyer, prominent past public servant and New Zealand's first Ombudsman. His report on the Security Service advocated a U.S. Congressional committee approach to monitor proceedings. 61 Tom McRae, "A study in attitudes of backbenchers to the parliamentary system", PUBLIC SECTOR, Vol 6, No 1/2, New Zealand Institute of Public Administration, Wellington. July 1983. p. 22. 62 McRae, "Backbenchers:a study on attitudes", p. 14. 63 "Open Government Policy", G Palmer, Spokesperson, 1984 Policy Document, New Zealand Labour Party, Wellington. p. 63. paras. 3f and 4. Emphasis added.

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Departmental officials are requested to provide comment on submissions and recommendations for change at the committee's direction. They may also be requested to provide their views on a bill and/or its implications. Here the material provided can be considered as advice to the committee rather than evidence and should, therefore, be heard in private. The departmental officials appear as advisers rather than witnesses.64 And again, in handling "Material Provided by Departmental Officials" the Business Committee said, Sometimes it is not appropriate either for all or part of the material provided by departmental officials to be heard in public. In such instances, the advice from departmental officials may be heard in closed session as part of the consideration stage....In the consideration stage on public bills, departmental comment on submissions is received along with any other advice requested of the departmental officials.65 By this one can see that departmental officials have been given a privileged position. Not only are they active in drafting bills before their submission to Parliament, but they can strongly influence the outcomes from the deliberations of committees handling those bills. For instance, when the 1985 Parliamentary Service Bill was being considered, Dr Mervyn Probine, Chairman of the State Services Commission, provided advisory papers for the select committee considering the bill.66 But the State Services Commission planned, under its provisions, to become the major employer of staff in Parliament and surely had a conflict of interest. Also, during hearings on the 1989 Reserve Bank Amendment Bill it was observed that the select Reserve Bank firepower in action.

committee handling this legislation had four officials from the Reserve Bank in attendance as well as the Bank's own special consultant, Professor C.A.E. Goodhart, brought out from the London School of Economics. On the day noted, members of the committee conferred regularly with these five officials. 67 Moreover, one of those giving a submission to the Bill later said, the views expressed in submissions by the Manufacturers' Federation and in our own submissions to the Select committee on the conduct and the consequences of New Zealand monetary policy in the post-1984 period were not accepted. The Reserve Bank did assess them[for the committee],

64

John Terris, Chairman, Business Committee, Guidelines for Chairmen of Select Committees, New Zealand House of Representatives, 1987. p.8. 65 Ibid., p. 23. 66 See letters ref. no. SO/1985/20, 7 August 1985 and SO/1985/21, 12 August 1985 from Dr Probine in select committee archives. Also Mr K.F. Arnold, Senior Committee Clerk said that Dr M Probine, Mr D Bradshaw and Mr J Roseveare from the State Services Commission serviced the select committee. Letters 5 March 1987 and 10 March 1987. 67 Personal research, 22 August 1989. The committee members were J.N. Sutton 1941-, Labour, Waitaki 1984-90, Minister 1989-90, Hon. 1989-. Chairman. P.R. Burdon, 1939-, National, Fendalton 1981-, Minister 1990-, Hon. 1990-. P.F. Dunne 1954-, Labour. Ohariu 1984-, Hon. 1990. Ruth Richardson 1950-, National, Selwyn 1981-, Minister 1990-, Hon. 1990- and E. Tennet 1952- Labour, Island Bay 1987-.

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and called in a prominent UK monetary economist, Professor C.A.E. Goodhart of the London School of Economics, to buttress its position to the Select Committee. Professor Goodhart, who was an economic adviser at the Bank of England from 1963 until 1987, was obviously persuasive. The Bill was passed. It is fitting to note that Professor Goodhart played a formative role in the design of UK monetary policy while at the Bank of England and is a well known advocate of the type of monetary policy that the Reserve Bank has chosen to practise.68 In an interview, Professor David Sheppard expressed concern about the select committees of the New Zealand House of Representatives, comparing them with Westminster's committees, saying, Only one source found with a comparative input.

I am very impressed with the way Westminster's select committees bring in experts, some obviously on a volitional basis....This ensures that Parliament keeps on top of the bureaucracy, helps ensure that policies are better researched before introduction....We need this sort of contestable approach. But will it be possible while the political parties refuse to give Parliament a higher degree of constitutional "separateness" as well as a fair level of resources such as staff and recording facilities to its committees.69 Mr Terris, Chairman of Committees of the House, was asked about the role of public servants working at select committees. However,he saw no conflict between their role as acting as guardians of ministerial policies while being very influential in the select committee process. He said, "The valuable contribution made by departments will continue, in the spirit of co-operation which has characterised select committee work in the past".70 These examples show how public servants can be very influential in giving Departmental views.

advice to select committees. The State Services Commission, the Treasury, the Department of Justice, the Ministries of Environment, Education, External Relations and Trade, the Reserve Bank and Audit Office were all asked certain questions about their relationships with Parliament and its select committees.71 They replied that they had not researched how their contemporary departments overseas interacted with legislatures, had no special section co-ordinating their interaction with Parliament and its select commit68 Sheppard and Whitwell, p. 1. 69 Interview for Tom McRae, "Backbenchers need to 70 Letter from John Terris, Chairman of Committees, 71

find a voice", The Dominion, Wellington. February 1991. Parliament Buildings, Wellington. 12 November 1985. Letters were received from State Services Commission, 29 August 1991, Treasury, 19 August 1991, Justice, 20 November 1991, Environment, 21 April 1992, Education, 24 March 1992, External Relations and Trade, 3 April 1992, Reserve Bank, 17 September 1991, Audit, 14 November 1991.

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tees, and did not charge select committees for these services. These were a cost borne by them. However, External Relations and Trade appeared to carry out a valuable service in servicing visiting parliamentary delegations. But why they carry out a function normally co-ordinated by other Parliaments is open to question. The Audit Office was the only one which had actively researched the procedures of their overseas counterparts when dealing with legislatures. These departments, apart from the Audit Office, seemed to feel no need to be aware of how, in a general sense, a legislature operates. They are active operators inside the New Zealand House and its committees, even during reforms. An Assistant Commissioner of the State Services Commission was asked about the role of public servants interacting with Parliament. He said, "A public servant's role is to give service to a Minister of his(sic) department. Discussion on the role of the Legislature is not a subject for public servants, as that institution is not a government department".72 Yet their main purpose, Prime role of state servants.

while servicing select committees, is continually to remind committee members that the policies formulated by their ministers, and themselves, must have prior importance. Thus their influence is considerable. Yet both Mr Lange and Mr Palmer had spoken in general terms about the need to better control the bureaucracy. Bendix says, Under a system of legal domination the day-to-day exercise of authority is in the hands of the governmental bureaucracy and is subject to the rule of law only where the enactment of laws and the supervision of their implementation is controlled by political leaders...Every bureaucracy will conceal its knowledge and operation unless it is forced to disclose them, and it will, if need be, simulate the existence of hostile interests to justify such concealment. Clearly, such practices subvert the rule of law, because an administration that cannot be inspected and controlled tends to become a law unto itself. 73 Weber lauds the legislative inquiry process.

But he goes on to show that Max Weber considered that this state of affairs could be avoided through the proper use of a legislature. Weber admitted that, by comparison with the expertise and organisational know-how of officials the politicians are ignorant dilettantes. Parliamentary control of the administration can be effective only where the right of parliamentary inquiry and the possibility of cross-examination before commissions of inquiry exist. Weber believed that no more than occasional use need to be made of such powers in order to make officials accountable.74 Professor Martin J채nicke agrees with Weber with regards to the skills and political awareness of offi72 McRae, 73

"Backbenchers:a study in attitudes". Evidence from Mr R.A. Kelly. p. 22. Reinhard Bendix, An Intellectual Portrait, Heinemann, London,

1960. pp. 444-445. 74 Bendix, p. 448.

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Outstanding Problems Of Parliamentary Procedure cials relative to politicians. He certainly stresses the difference between "politics" and "administration". But he sees dangers in the "separation between the machinery of state and the institutions in the political arena which create legitimation". When there is a crisis of legitimation "it is quite fascinating to observe the extent to which the government machines of the Western industrialized countries have remained unaffected by the crises of state legitimation experienced by those countries". He also avers that when such events occur it is the politicians who suffer the often full weight of public disenchantment and become the scapegoats for events over which they are not entirely to blame. He says: Governments have been thrown out and replaced. Large-scale unemployment, government indebtedness, mistakes in energy planning, disasters in housing policy, environmental mishaps and unpopular decisions about armaments have all brought 'politics' into dire straits. In several countries the party system has got well and truly out of kilter. Ministers have been sacked. But the bureaucrats who did all the preparatory work, whose signatures got the minister into hot water, have survived each and every 'change of government'. No doubt about it, politics and administration are indeed two different things! 75 Another view expanded upon the role of the bureaucracy in its relationship with the House of Representatives: We depended too long upon the Colonial Office for lots of the big strategic decisions, particularly in international relations....There is a powerful tendency to train people for the bureaucracy instead of developing a critical view of it. What we have ended up with is very much a colonial Parliament. These always facilitate the work of the bureaucracy. The tradition of independent inquiry is absent. We do not seem to have the independence of, say, the Japanese, who can digest outside ideas and adapt them for their own use.76 But nothing found in the research for this thesis has uncovered any possibility of change for the better being applied to this situation which besets the New Zealand House of Representatives. Also, it should be realised that the "Guidelines" produced by the Business select committee was not properly approved by any process involving debate, or even a pro formaMotion, in the House. The Problem Of The Parliamentary Service Commission THIS SECTION examines how the new Parliamentary Services Commission, installed 75

Martin J채nicke, State Failure: The Impotence of Politics in Industrial Society, English Translation, Polity Press, Cambridge, UK. 1990. pp. 25-26. Also see Table 2, page 26. This compares the factors of unequal power in the state. J채nicke lists Politics and politicians as coming from a diffuse electoral base and having amateurism, the need for public action and legitimation as well as a short tenure. Adminstratorscome from a narrow specific base, possess professionalism, can operate in a behind-the-scenes fashion, have no need for legitimation and may have a job for life. 76 Tom McRae, "Backbenchers need to find a voice", The Dominion, February 26, 1991. Interview, inter alia, with Dr John Lepper of Integrated Economic Services.

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Outstanding Problems Of Parliamentary Procedure No independence for the House.

under the Lange-Palmer reforms, is audited for "economy and efficiency". It also shows how Parliament has not been given the independence promised by Labour, and discussed in Chapter V. The 1990 National Government Cabinet has carried out two efficiency exercises that dealt with the operations of Parliament including the Office of the Clerk of the House. On 4 December 1990, the New Zealand Cabinet Expenditure Control Committee initiated a review on the operations of the Parliamentary Service and the Office of the Clerk of the House. This was conducted by a Treasury serviced team comprised of Mr Ian McLean, a retired National MP, Hon Stan Rodger, a retired Labour Minister of the Crown and Mr T.M. Berthold, a retired Treasury official. This team was jointly appointed by the Speaker, the Parliamentary Service Commission, and the Minister of Internal Affairs. The Review Team delivered a lengthy report to Hon Doug Kidd, Chairman of the Cabinet Committee. 77They dealt with the management and expenditure of all the departments of Parliament. This exercise illustrates the power of the New Zealand Executive Cabinet imposes its writ.

over its Parliament. One small detail shows the length to which this power and influence can run. They criticised the use made by the Clerk of the House of staff for select committees. These had needed more staff owing to increased numbers of bills handled. The team said: 2.42.....the increased resources were also seen as a step towards increasing the effectiveness and status of Select Committees, vis-Ă -vis the Executive arm of Government 2.43 The Review Team considers that has not been accomplished and questions whether the average of one and a half staff members allocated to each Select Committee is warranted. It proposes therefore that the Clerk of the House review the staff resources he assigns to the Select Committees and report to the Speaker, who may wish to consult the Parliamentary Service Commission.78 This exercise was justified by Mr Kidd, the responsible Minister, in a letter, namely, The administration of Parliament is quite separate from the Crown but the financial provision for the operation of Parliament is provided by Government through the budget process. It is therefore quite proper that

The House loses control.

when Government is reviewing all departments and agencies vote expenditure that it should also consider the vote of the Parliamentary Services Commission. These reviews are being conducted by the Government Expenditure Control Committee which Mr Kidd presently 77

Report to the Hon Doug Kidd, Chairman of the Cabinet Control Committee, REVIEW OF THE PARLIAMENTARY SERVICE, OFFICE OF THE CLERK AND MINISTERIAL SERVICES BRANCH OF THE DEPARTMENT OF INTERNAL AFFAIRS, by T M Berthold, Ian McLean and S J Rodger, Cabinet Office, Wellington. 14 February 1991. pp. 42. 78 Review Team Report, p. 10.

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Outstanding Problems Of Parliamentary Procedure chairs.79 This letter gives a clear opinion that "executive writ" runs anywhere money allocated by Parliament was used. But it is not Government that supplies money through the budget process. This is provided by the House granting Supply to allow the operation of a range of departments and agencies and the carrying out of other responsibilities. Most of these come under direct executive control. But the House and its associated administration are not, or should not be, executive responsibilities. Therefore, a Cabinet directed, Treasury serviced team has no automatic right to inquire into the operation of the House and its services. Moreover, the House is an institution which has as one of its responsibilities that of calling the executive to account. It rather turns constitutional conventions on their head when an executive team is allowed to suggest change to an agency entrusted with examining that same executive. And it is contrary to what both Mr Lange and Mr Palmer espoused before coming to power, that Parliament would be granted the sort of independence gained by overseas Parliaments.

The Executive again follows where Charles I passed?

In 1991 another Cabinet directed study impinged upon the functions of Parliament in the manner that the McLean-Rodger Report did. This was the Review of State Sector Reforms headed by Mr Basil Logan and reporting on 29 November 1991. 80This team was set up to review progress after reforms put through following the State Sector Act 1988 and the Public Finance Act 1989. What is notable of its review activities is that, in examining the operations of "state" organisations, it also felt quite free to examine certain of the operations of Parliament. Its "Chapter Three-Accountability to Parliament", certainly produced worthwhile recommendations such as more support and staff for select committees, a suggested review of the conventions governing the appearance of state servants before select committees and a strong recommendation for a review of the status of the Audit Office and its work. But once again the Review Team was an executive-directed one recruited solely from top executive agencies. Where it dealt with Parliament it did not show any use of, or at least acknowledgement of Parliament's staff, particularly from the Office of the Clerk. Also, while public money may have been spent to good result, from a viewing of its recommendations over Parliament, a reformed and more independent House would surely be able to do its own reviews, suitably audited. The Executive State did this for itself in the wider scope of the Logan Report. However, this Report was not subjected to any subsequent parliamentary review or public audit of its findings. Examination of these two studies shows that both the New Zealand Speaker and the Parliamentary Service Commission formally defer to Cabinet. It also illustrates clearly how the New Zealand House of Representatives and its Members have given away much direct control over their domain. It has apparently delegated to the Clerk all powers over staffing for his Office. It has allowed Cabinet direct control over all expenditure, which includes major maintenance of and additions to its buildings. Despite the changes brought in at 1962 and 1985, New Zealand Governments still have no need to consider any checks and balances when they deal with Parliament, the House and its committee operations. Westminster reviews of its processes provide, yet again, a comparison with what has happened in New Zealand. The Westminster House of Commons recently reviewed its "management and decision-taking responsibilities for services to the House". The five person review team was lead by Sir Robin Ibbs KBE, an outside consultant directly employed by the House of Commons Commission. One member was from the National Audit Office, the others being House of Commons staff. A thirty page Report was 79

Letter from the Office of the Associate Minister of Finance, signed by L R Gibson, Senior Private Secretary of Hon Doug Kidd, Associate Minister of Finance. 19 April 1991. 80 Mr Basil Logan, Review of State Sector Reforms, Steering Group, Review of State Sector Reforms, 29 November 1991. pp. 140. Cabinet Committee on State Services. Steering Group members were, as listed, Mr Basil Logan(convenor) former Chief Executive of IBM New Zealand. Ms Susan Glazebrook, partner, Simpson, Grierson, Butler, White. Dr Judith Aitken, Chief Executive, Ministry of Women's Affairs. Mr David Oughton, Chief Executive of the Department of Justice. Dr Ian Ball, Treasury. Mr Simon Murdoch, Acting Chief Executive of the Department of the Prime Minister and Cabinet. Mr Rob Laking, State Services Commission. Ms Keriata, State Services Commission, Secretary.

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Outstanding Problems Of Parliamentary Procedure tabled in the House by the Speaker.81 Its main structural recommendation involved the Select Committee on House of Commons (Services). It proposed that the present five sub-Committees of the Services Committee be replaced by four free-standing public select committees covering catering; accommodation and works; library, publications and information technology; and administration. It said that "these select committees should represent Member's interests as consumers in determining the provision of services to the House".82 Westminster maintains its privileges.

This shows how the House of Commons Commission is now so much more independent than its counterpart in Wellington. But its performance is also monitored by these four "public" Select Committees reporting to the House, and, Although the Leader of the House clearly has a major say, on behalf of the Government, when the Commission is considering the House's estimates, especially for new services(and on such matters the Commission would not approve additional spending without a resolution of the House), the Treasury have no formal control over this aspect of the House's expenditure. Nor is this expenditure subject to cash limits. This is a far cry from the day when Treasury approval had to be secured for the appointment of an extra part-time cleaner. This control by the House of its own administrative expenditure has proved important in respect of the staffing and operational expenses of select committees, including overseas travel, and the development of research services in the Library.83 Also Sir Clifford Boulton, Clerk of the House of Commons said: If there were a fundamental disagreement between the Commission and the Treasury this would have to be resolved on the floor of the House when the estimates were voted. But, as was the case with Member's salaries, the Government's view does not necessarily prevail in such circumstances.84 This is the regime so admired by Mr Palmer on his Grand Tour of the Palace of Westminster. In turn he said it was offensive for the New Zealand system to allow executive domination of Parliament, and, The Government and the Treasury should not make the judgements about the resources required to run Parliament. Parliament is supposed to be scrutinising the Executive, not the other way round.85 But Hon W F Birch, Minister of State Services from 1990, defined the 81

House of Commons Commission, House of Commons Services, Report to the House of Commons Commission by a team led by Sir Robin Ibbs, 27 November 1990, HC38, HMSO. A copy of this extensive Report was kindly supplied by Sir Clifford Boulton, Clerk of the House. Please note that this Team had Market and Opinion Research International(MORI) "conduct a survey of all Members to find out their views of the way that services in the House are managed". p. 14. The Review, including the survey, cost 61,800. This new committee structure has now been set up. 82 Study Team Report, p. 12. 83 Griffith, Ryle and Wheeler-Booth, p. 160. 84 Letter from Sir Clifford Boulton KBE, Clerk of the House of Commons, Westminster, 14 May 1991. 85 Palmer, 1 December 1983, p. 28.

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Outstanding Problems Of Parliamentary Procedure The Executive justifies its stand.

realpolitik of Wellington and confirmed the role of the State Services Commission vis-Ă -vis Parliament when he said, In terms of Section 39 of the Parliamentary Service Act 1985, as amended by the State Sector Act 1988, the negotiation of collectively bargained conditions of employment for the Parliamentary Service Act is undertaken by the State Services Commission, in consultation with the General Manager of the Parliamentary Service. The role of the State Services Commission is, in this respect, the same as if the Parliamentary Service were a department of the Public Service.86 The lack of independence in the New Zealand House of Representatives is further highlighted when the situation at other legislatures is examined. Ottawa has a permanent management committee in its Select Committee on House Management. Its' duties run, inter alia as follows: (i) the review of and report on, to the Speaker as well as the Board of Internal Economy[their equivalent to New Zealand's Parliamentary Service Commission], the administration of the House and the provisions of services and facilities to Members.... (ii) the review of and report on the effectiveness, management and operation, together with the operational and expenditure plans of all operations which are under the joint administration and control of the two Houses and other matters as the Committee deems fit (iii) the review of and report on the Standing Orders, procedure and practice in the House and its committees...87 The Canberra Senate also has a similar structure directly operated by Members. Its Standing Orders talk of four management select committees, one for Appropriation and Staffing, another for the Library, the third for the House charged with overseeing the provision of facilities for both houses and the last for Publications. The last three committees also act as joint committees with similar committees for the lower house.88 Research has found one Australian comment on the the new New Zealand Parliamentary Service Commission. In 1992, the New South Wales Premier, the Hon. Nick Greiner initiated an inquiry into the feasibility of installing a management commission for their State Parliament. A Report was brought forward by the Hon. Tim Moore, Leader of the House and Mr Roger Wilkins from the Cabinet Office. They had studied the operation of Commissions at Ottawa and Westminster. One of the responses to this 86

Letter from Hon W F Birch, Minister of State Services, 20 November 1991. The quoted legislation was put through during Labour's term of office. 87 Votes and Proceedings, Second Session, 34th Parliament, House of Commons, Ottawa. 11 April 1991. p. 2925. 88 Publications Committee, Standing Orders and other orders of the Senate, Parliament House, Canberra. Issued February 1990. pp. 16-18.

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Outstanding Problems Of Parliamentary Procedure Report was from the Hon. Max Willis, President of the New South Wales Legislative Council. He said, inter alia, It is important, however, that in effecting change in these directions, we do not exchange one tyranny for another(which is what many New Zealand Members of Parliament claim has happened under their Parliamentary Commission), and also that any changes we do make are, in reality, for the better.89 Two important points come out of this New South Wales study. This is that first, this study was an official one, commissioned by an official authority. Further more, the study team of Messrs Moore and Wilkins made a personal visit to other legislatures to see for themselves what might be suitable for use in New South Wales. Even the cautionary note injected by the Hon. Max Willis was derived from first-hand experience of the legislature in New Zealand. The method behind such depth of study, and the resultant discourse, compares well with the past, solely party-dominated moves to so-called "reform" that have occurred in Wellington. These reform moves have been based, at times, on very inaccurate information on what transpires at overseas legislatures. As this thesis shows, there have even been occasions when servants of the House have produced wellfounded comparative research, only to have it ignored. Members of the New Zealand House of Representatives, and those who expect, even in part, representation from some of their deliberations, need to be alerted to such a process as conducted by the New South Wales Parliament. With the freer, more open, comparative approach as occurred in Australia, surely Samuel Patterson would approve.

8.11. Lack Of Fair And Consistent Process THERE HAS been previous comment on how the procedures of the House of Need for urgent review of the inner process-- but how, and by whom? Representatives did not match up to those in other legislatures. Matters discussed included the lack of a system of full verbatim recording and subsequent publishing of all proceedings. It has also been noticed that there is a propensity for all New Zealand Governments to overuse the urgency provisions. Such a procedure allows them to rush legislation through and escape possible in-depth inquiry, as to the possible implications of, and the medium to long-term costs involved, in the new policies. However, even within the present New Zealand system there are strange inconsistencies. For example, when most select committees report to the House their findings on a Bill after hearing submissions, all those who have made such submissions can at least have their names recorded in the tabled Report. But at other times, no names at all will be included. This happened in the Report to the House of the Inquiry into the White Paper on the Bill of Rights in July 1987. In this instance, there were many submissions. But the New Zealand system can at times still list the names of all submittants, even if there are

89

The Hon. Max Willis, M.L.C. President of the Legislative Council, Response to the Report, Managing the Parliament, April 1992. p.2. See also The Hon. Tim Moore MP and Mr Roger Wilkins, Managing the Parliament, NSW Cabinet Office, Sydney. March 1992. pp. 31.

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Outstanding Problems Of Parliamentary Procedure

100 or more. The outcome would seem to depend upon the circumstances of the time and the personalities involved. On other occasions there need be no separate published Report for each bill handled by a select committee. One such example was noted in the Annual Report of the Select Committee for Planning and Development for 1986-87. This Committee did not issue separate public reports for each of six bills it considered in that period. The Annual Report only included short statements, some only four lines, concerning each bill. One such statement, naturally directed to the House and signed by the Chairman of the Committee, Mr K L Shirley, and quoting the date of tabling, ran as follows: I am directed to report that the Planning and Development Committee has carefully considered the Environment Bill and recommends that it be allowed to proceed with the amendments shown in the attached copy. 90Now this bill was a very important piece of legislation, part of the wide changes to environmental legislation put in place by the 1984 Lange-Palmer Labour administration. This Committee also handled the Conservation Bill and the Public Works Amendment Bill. The latter bill drastically reduced the powers of the Ministry of Works and Development, leading to its eventual demise; the other two bills, in effect, replaced this Ministry by the new Ministry for the Environment and the Department of Conservation. Naturally, such pieces of legislation attracted much public interest. Minimal reporting. There were many written and oral submissions. But the simple three or four-line statements found in this Annual Report give no hint of this wide community interest; neither did the copy of this Report in the bound Journals include any direct and written reference to "the attached" copies as mentioned. Also there were no lists of the names of the many who gave submissions and fronted up to the select committee. Wellington parliamentary jargon describes these reports so tabled in the House, with no immediately published document, as pro forma reports. Naturally, other select committee reports are properly printed, are then tabled, and later offered for sale. This type of report is classed as substantial. However, there are occasions when a select committee can extend itself and provide in some Report, detail normally not found. One such instance occurred when the Select Committee for Communications and Road Safety gave its Interim Report when covering certain aspects of Civil Aviation administration. Their Report ran to 242 pages, yet commendably, 127 of them were devoted to a verbatim transcript of the interrogation of certain witnesses. 91 Detailed transcript!

But, in the New Zealand context, such provision of detail is rather extraordinary. The Committee did not spell out why this was done, excellent as it may seem, when it is not the usual practice. Also, inquiries have failed to find any formal set of instructions, properly approved, that direct committees of the House to report to that body in a standard, technically laid-down and consistent form. Once again, this shows the lack of any set of properly motivated management committees for the New Zealand House of Representatives.

90

Annual Report for the Select Committee for Planning and Development, 1986-87. AJHR, Vol. XI. 1987. pp. 5. Printed under the Authority of the New Zealand Government by V R Ward, Government Printer. 91 Interim Report of the Select Committee for Communications and Road Safety, Inquiry into the Contractual Arrangements for the Continuation of the Calibration Flight Unit: the Checking of Aviation Navigation Aids, Second Session, Forty-Third Parliament, Robert Anderson, Chairman. AJHR, I.2A, pp. 242. Published by the Order of the New Zealand House of Representatives. 1992.

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Press Gallery ff Luckily, the research for this thesis has been able to draw upon many press articles. These have been extremely valuable in providing some human content and dynamic to the parliamentary life examined, parlous as is the general quality of the level of reporting by the House and its committees. Many press articles are listed in the Bibliography but space has only allowed direct use of only a few. But the role of the New Zealand Parliamentary Press Gallery needs to have wider discussion, operating under difficult conditions, as they do. For instance, there was one incident discovered that related to the general Strange procedure. (Attack on Press Galleryreporting of the proceedings and activity of the House of Representatives. In 1985, in its Report to the House, the then Standing Orders Committee took the unusual step of launching a strong and detailed attack, needing almost two pages, over the performance of the Wellington Press Gallery. The first notice of this was when their Report was tabled in the House; there had not been any prior public examination of official representatives of the Gallery. 92The Committee said that the Gallery "as a whole is content to coast along, giving a very much less than adequate report on the work of Parliament. It continued: A love-hate relationship?

The reporting of debates in the House is concentrated far too much on dramatic incidents, with little attention being debated and arguments adduced. Press statements and speech notes are used as source material without analysis or balance. The reporting of select committees is even more inadequate. Many are not reported at all and there is a tendency to rely on written submissions only. This committee was given a clear example of this inadequacy in relation to its own proceedings. Very little attention was paid by the media themselves. There was practically no Press attendance during the examination of witnesses. One newspaper even declined the committee's request to appear in support of its submission. The committee further complained that there is not one newspaper prepared to accept "the role of a paper of record on proceedings of Parliament".93 Certain points come out of such statements. One is the obvious question as to why did not the Standing Orders Committee first have a public examination of representatives of the Press Gallery before deliberating, naturally in secret, in order to put together such a general attack on the Gallery and its members? Also when the Report was debated in the House several allusions were made on the quality and performance of the Gallery, using parliamentary privilege; one Member made special mention of the editor who was not prepared to come to the hearings and be examined over aspects of his written sub92

When giving a submission to the same Standing Orders Committee, one was made aware of a strong, general feeling against the Parliamentary Press Gallery. However, with no Journal of Record there is no official record of this incident. See Bibliography, Tom McRae, Submission given 17 August 1984. 93 Report of the Select Committee of Standing Orders, Dr. The Hon. G.A. Wall, Chairman. I.14, AJHR. 1984. p. 11.

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mission. Sir Robert Muldoon: Sir Robert leaves his mark.

The editor of one of our daily papers saw fit to make written submissions to the committee, but, when the committee decided it would like to have him along so that he could be questioned on his submissions, he refused to come. Needless to say, his submissions were given the attention they apparently deserved. 94 But surely all select committees have power of subpoena, enabling them to insist on the appearance of witnesses. By first failing to use such powers over those they later describe as in some way as recalcitrant, surely raises the question that such a committee is not properly using its granted powers. There may have been good personal reasons for the Gallery members not wanting to witness the committee's proceedings, or for the refusal of the named editor to appear. Such a committee is granted powers to inquire freely, and as a result is protected under parliamentary privilege enabling a free expression of its views. But there seems to be no awareness that such powers and privileges carry with them a balancing obligation to conduct parliamentary proceedings in such a manner as to be fair to those about whom comments are put later into public reports. The secret world of New Zealand committees.

The New Zealand select committees produce no journals of record that could show how and why such comments were put together, or who voted on them. Neither do they even provide, as previously stated, a transcript of proceedings that is subsequently published. Such a procedure would signal the presence of an ambience in which natural justice to those being examined by committees was the natural order of the day. But when an attack such as this occurs, particularly when those attacked are not first asked for reasons for their alleged failings, the related committee brings itself into disrepute, misuses the powers and privileges granted, and possibly just asks for the sort of newspaper reports over which it thinks it may have cause for complaint. 95 On occasion, journalists and writers of newspaper articles do attract the attention of parliamentary authorities, when it is claimed, that breaches of parliamentary privilege have taken place. In New Zealand, one instance of this happened in 1982 concerning an article in the Sunday Times, where the paper and its writer were found to have breached parliamentary privilege. 96 However, such an instance can provide an insight into the working of the Privileges Committee of the New Zealand House of Representatives, particularly when its members are allowed to operate free of the need to produce a journal of record, later to be published. After the proceedings, the paper's editor said that during questioning, one of the committee members asserted that his paper obviously did not feel very well disposed towards politicians. Humour over the edge?

It was claimed, by a member of the Committee, that evidence for this came from the fact that the Sunday Times ran a well-known strip cartoon named "The Politician". 97 This cartoon strip, by David Fletcher, 94 NZPD, Vol 464, p. 5602. 95 See The Dominion. "MPs criticise news coverage", 17 July 1985. Evening 96 See Report of the Committee on Privilege, I.6, AJHR, Vol VII, 1982. 97

Personal comment from Mr R.C Fox, Editor of the Sunday Times. 1982.

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Post, "MPs criticise press gallery", 17 July 1985.


Outstanding Problems Of Parliamentary Procedure certainly does take a humorous look at the life of its MP characters, and is still run in newspapers today. But this comment from an MP in turn does show how parliamentary life can become to be seen as an end in itself, not, even in part, a public operation where granted privileges must be balanced by some degree of obligation on the part of those MPs to those they are meant at times to serve. It can be easy to be critical of the state of the internal process of the House of Representatives without looking at the cultural context and practice as occurring in the wider community. While it is oft repeated that any Parliament is the highest law in the land, the wider, accepted practice of that land, its community, and professional practitioners, cannot but tend to have an affect upon what is accepted inside the legislature of that land. So, in looking at the internal process of the House, it is at the same time fair to at least briefly discuss what occurs outside when committees are brought together for inquiries? There are two kinds of New Zealand Committees of Inquiry as controlled by The conduct of the Inquiry Process.

the Executive. One is the "ministerial" inquiry and the other is the "official" inquiry such as Royal Commissions. The former kind of inquiry has no set of regulations governing the procedures needed. In fact, the ministerially-appointed commissioner(s) can freely lay down their own procedures. Such a process was observed during an attempt to obtain information about the proceedings of the 1984 Aotea Square Riot Inquiry. A comparison was being attempted between the procedures of this inquiry and that of the 1981 Inquiry by Lord Scarman into the riots at Brixton, England. Both events were thought to have some similarity, both being involved with a riot in a public place, mainly by disadvantaged youth. However, a letter was received from the National Archives concerning the Inquiry into Aotea. The Archives held some of the proceedings and evidence; these had been embargoed for twenty years, "so they are not available for researchers". This compares ill with the procedures of Scarman, where there was a properly constituted Commission in operation, under the U.K.Police Act 1964, with the Report being tabled and debated. In the case of Aotea, there has been no follow up, whereas Scarman's Report has undergone continuing study and public discussion. 98 Further inquiries were made regarding the process surrounding properly constituted Commissions of Inquiry, such as Royal Commissions, under the Commissions of Inquiry Act. One reply said, inter alia: The preservation of evidence and proceedings is a matter that is determined by each Commission. In general, most documents are preserved with the originals being deposited with National Archives, and copies going to the General Assembly Library.99 Some portions of the evidence may be embargoed at the discretion of the Commission concerned. 100 A further inquiry was made on this question of the process of inquiry

98

The Rt Hon. The Lord Scarman, O.B.E., The Brixton Disorders, 10-12 April 1981. Report of an Inquiry, Presented to Parliament by the Secretary of State for the Home Department, November 1981. Cmnd 8427. pp. 168. Mr Peter Mahon QC, Aotea Square Riot Report, Presented to the Government, 24 December 1984. pp. 48. See letter from the National Archives, 25 March 1986, signed by Sherrah Francis, Archivist. 99 Note that the term "General Assembly" no longer is used. This previously applied to the institutional presence of the Governor-General, together with the Legislative Council and the House of Representatives. After the abolition of the Legislative Council this term was still used. But the term in use now is "Parliamentary Library", implying the joint presence of the Governor-General [The Executive] and the remaining single Chamber, the House of the Representatives. In Westminster and Ottawa, those "Commons" naturally have their own libraries, separate from the Executive. 100 See letter from J. Saunders-Francis, for the Secretary for Internal Affairs. 18 June 1986.

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which said, inter alia: (General Assembly The brief answer to your inquiry is that there are no regulations governing the procedure of commissions of inquiry. Such procedural provisions as exist are contained in the Act itself. However, the procedure of commissions of inquiry is subject to the rules of natural justice imposed by common law. Subject to those constraints, Commissions of Inquiry can govern their own procedure. This flexibility is important to the fact finding process.101 However, care must be taken not to be seen to be generalising over the quality of the various types of Inquiry carried out in New Zealand. This thesis has certainly commended the work of several Royal Commissions. Also, there has been excellent work done by many Ministerial Inquiries. But there is surely a need for some continuity to guarantee a follow-through from what can at times be inquiries that have expended large amounts of public funds, as well as drawing wide-ranging and numerous submissions. If there were properly constituted "inquiry" committees in the House of Representatives, as overseas, reports from these various inquiries, including those "ministerial" inquiries, could be passed to them, as a matter of course. As it is, the Royal Commissions noted here were only tabled in the House, and not even debated. Ministerial inquiries are finally passed to the appropriate Minister, where they can stay, or then remain under the guardianship of his or her department, often part of the problem being inquired about. The House of Representatives could be a useful force ensuring continuity in such matters, but the political, academic, professional or community will to re-arrange this process seems absent in New Zealand. It could be postulated that there is even a need in New Zealand for some A new legal society?

new legal society, properly incorporated, taking upon itself duties involved with public interest and human rights issues, including that of the inner process and procedural law of Parliament. Maybe the New Zealand Law Society is trapped within the confines of its Law Practitioners Act, which does not deal with public interest issues. There does not seem to be any formal structure through which to action the wide range of related issues that many concerned New Zealand lawyers raise. As this thesis shows, there is surely a need to draw the New Zealand legal profession into the wider consideration of, and social action over, public interest issues, among which is parliamentary reform. The same could be said of the New Zealand accountancy profession. Such a new model body could be actioned after the study of those overseas law and accountancy bodies noted by this thesis. The Canadian Tax Foundation, previously mentioned is a body formed by the union of Canadian accountancy and law professions. As has been noted in United Kingdom, there exists several prestigious law bodies, as well as the Consultative Committee of Accountancy Bodies and the Chartered Institute of Public Finance and Accountancy. These would be bodies worth studying, and determining the reasons for their interest in the inner procedural process of their legislatures. Also, there is a need for regularising, better formalising, the relationship between the Members of the 101

See letter from D. Oughton, Secretary of Justice. 13 April 1987.

Also refer to the Commissions of Inquiry Act 1908, and updates, and P.J. O'Dea, Royal Commissions and Commissions of Inquiry, A.R. Shearer, Government Printer, Wellington. 1974.

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House of Representatives and the Parliamentary Press Gallery. This prevails at other legislatures, despite the common, world-wide propensity for legislators and journalists to snipe publicly at each other. A new look needed.

The media, and the general public would also be greatly aided if there was present a modern and total transcription and publishing service as at overseas legislatures. But this will depend on some new look at the overall management systems of the House and its committees. There needs to be an urgent study of overseas legislative institutions. The most suitable of what procedures are there could be selected for the New Zealand House, and its committees. Among examples worth studying would be those that have aided the research for this thesis, such as the Education Office at Canberra, the Table Research Branch at Ottawa and the Overseas Office at Westminster. But, if the mores of this community are automatically against such overseas expeditions, it is very unlikely that some of the principles behind such legislative management structures will be introduced, let alone studied.

8.12. Conclusion SO ONE CAN see that, despite the 1984 rhetoric of Lange and Palmer, Plus a change...? and the countervailing assurances of the new 1990 Bolger Administration, Westminster-type checks and balances found in other legislatures are yet to be adopted. In the New Zealand House, most management functions, normally public and under the select committee control of Members in other parliaments, are under the direct control of the Parliamentary Service Commission. But this is dominated by the executive, as well as being chaired by New Zealand's "political" Speaker, and also having direct inputs from the State Services Commission, an executive department. Parliament is not yet the direct employer of its own staff; this is still the responsibility of this executive department. The House of Representatives and its Members have not gained the independence at the level gained by other representative bodies, and their Members. Both National and Labour have presented election Manifestoes that promised in the most glowing language that, if given power, they would usher in a more democratic and technically proficient rule in Parliament. And with these two political parties, together drawing majority support from the electorate, it will need some power or interest not yet socially defined to change this situation.

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Chapter 9. The Reforms In Retrospect: Conclusion THE PURPOSE of this chapter is to highlight aspects of the process by which Final tactics. change in the New Zealand House of Representative has occurred over the period examined. Discussion will also cover the anomalies inhibiting the New Zealand House of Representatives moving to a more democratic, "policy responsive" place in the society in which it is an important institution.1Finally, options for future change are canvassed.

9.1. Executive Dominance AT THE start of this research it immediately became clear that the Prime The Executive, and its advisors, fully dominant.

Minister of the time(Sidney Holland) was able to dominate the proceedings of the 1951 Standing Orders exercise. As Prime Minister, naturally he was able to have all the other Members of the House defer to him by virtue of the Office he occupied. Moreover, the Standing Orders Committee, as selected, had a government majority. Also, apart from him, its membership included ministers and party whips. This would tend to inhibit any search, either here or overseas, for new methods and procedures leading to a higher level of parliamentary accountability on the part of any government, its ministers and their officials. Also, over time, the numbers of the New Zealand Executive have increased proportionally with respect to the numbers in the Legislature. (See Figure 9.1)

Figure 9.1. Executive versus the Legislature. 1854-1994

1

For "policy responsiveness" see Heinz Eulau and Paul.D Karps, "The Puzzle of Representation, Specifying Components of Responsiveness", Legislative Studies Quarterly, Vol 2, No 3 (1977), Comparative Legislative Research Centre, University of Iowa, Iowa City. p. 242.

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All the Standing Orders Committees examined, concerned with parliamentary reform, had this imbalance in favour of the Executive. Nowhere in the documents studied was there evidence of any awareness that those Members whose only role was that of "Member of the House" should be the only ones having a proprietary right to lay down the rules of the House. Members of the Executive certainly participate in the workings of the House but the "separation of powers" doctrine should inhibit them being a part of the process constructing the rules that call them to account. The instances of overseas Parliaments where this exemplar is maintained have no credence in the New Zealand House.

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Only one complaint was found in Hansard registering disquiet about the executive imbalance present in a Standing Orders Committee. This was by Mr Richard Mayson in the 1974 reform exercise. There were also many suggestions made over the period studied for improving the approach to the changing of Standing Orders; some were simple, commonsense ideas, but more than once excellent overseas examples were quoted, which could have had their place in the House procedures. Mr Daniel Riddiford especially pointed out there was no reason why the House could not come up to the level reached by others. But these ideas only came out in the discussion in the House, during the final consideration of the draft Standing Orders. This pattern indicates that the present House procedures do not allow Standing Orders Committees to draw fully upon the ideas that Members might have about reforming the way they go about their business. To start with, there seems to have been no positive attempt to give an opportunity to all Members to contribute their ideas on reform. Note has been taken of the numbers of Members, academics and others from the wider community, who contributed to the 1978 Westminster review and the 1985 Ottawa review. Also, when the team under Sir Robin Ibbs reviewed the management procedures of Westminster(See Chapter VII), one part of this review included a full and detailed questionnaire of Members as to what were their views on the management of their institution. The views of Members there were considered necessary for the continuing progress of their institution. In contrast, the opinions of Members in the New Zealand House of Representatives are not fully canvassed, particularly on the issue of the reform of general legislative procedures. New Zealand Members not fully canvassed. The Executive is dominant on the Standing Orders Committee. The various skills and interests of backbench Members are seldom used to the full. As Stephen Levine has written "The prospects for parliamentary reform are meagre.... There is little motivation for an entrenched Executive to seek to devolve powers to the Legislative Authority". 2 Thus the New Zealand Executive can easily dominate the House, its proceedings and internal management systems. Naturally, this has powerful implications for the democratic conduct of the political process.

9.2. Speaker Partisanship SPEAKER PARTISANSHIP in the New Zealand House of Representatives is a problem New Zealand's "political" Speaker.

related to the presence of a dominant Executive. In 1951 a strong Executive in the form of Prime Minister Holland greatly reduced the status of the Speaker. He removed the Speaker's control over the whole of the Parliamentary Precincts. In 1951 Speaker Oram protested over this but received no support from Members. None seemed concerned over this infringement of the rights of their principal Officer. Before the abolition of the Legislative Council there was a superior organisation to that finally adopted for the remaining single lower house. There were permanent committees ready at all times to consider the Standing Orders as well as general management of the Joint Library, all the Precincts and buildings, and the arrangements of the normal range of perquisites necessary for Members. There were also joint Speaker's conferences which gave each Speaker a status now not present. Mr Holland's Government greatly reduced the status of the Speaker, as well as reducing these select committees to only ad hoc status. And as noted, the status of the Office of the Speaker also has been reduced, by the agreement of

2

Stephen Levine, The New Zealand Political System, George Allen and Unwin, Auckland. 1979. p. 6.

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both National and Labour, when the control of drawing up the order of Members speaking in the House was given to a new Whip's Committee. Today, the Speaker of the House of Representatives is the nominee of the majority party. In Westminster, a previous Minister like Selwyn Lloyd can become Speaker, albeit with certain resistance from Members, expressed in the vote for Mr Lloyd's confirmation. But here a Speaker can become a Minister without any doubts expressed by Members or community groups. One who did, Sir Roy Jack, even said that being made Speaker was just a spoil of office. But here, the Speaker can circulate in the meetings of the Caucus of his party. And New Zealand Speakers now even can chair select committees. This is a glaring departure from accepted Commonwealth constitutional principles, especially when the New Zealand Speaker chairs that select committee which makes and reviews the rules over which the chair must adjudicate, the Standing Orders Committee. Also, as this thesis has noted, the New Zealand House of Representatives has no accepted procedure, unlike other Commonwealth legislatures, to allow Members to make official complaints over the conduct of the Speaker. The Clerk of the House, Mr D.G. McGee, even has suggested that it is time to raise the status of the Speaker. He speaks of the need for a moral leadership to balance the political leadership provided by the Government. "The special character of the Speakership would be demonstrated vividly by an incumbent remaining in office, so long as he or she was an elected member of Parliament, regardless of changes of Government".3 But the Clerk has also been downgraded. The 1982 Coad Report noted the Legislature Act was handled inside Parliament. But the use of this has now fallen by the way.4

9.3. The Power Of The Party Whips THE EXECUTIVE also derives a certain dominance owing to the power the House The Parties dominate.

has surrendered to the Joint Whips Committee. This has now the power to arrange the lists of those due to speak in the House. The arrangement came into force in the 1972 review and took from the Speaker the right to deal with this matter. It also inhibits, in some degree, the Speaker from building up staff around him or her, geared to solely serve the House. By contrast it allows some sort of administrative resource inside the House for those who serve the parties and not the House.5And as the majority party is linked to this committee through the government whips it again adds to the influence and domination of the Executive.

3

D.G. McGee, Clerk of the House, A Memorandum addressed to the Speaker, Hon Robin Gray, PARLIAMENTARY REFORM, pp. 9. 20 July 1992. Sent to all Members of Parliament by the Speaker, 28 July 1992. Inter alia Mr McGee commented critically on the use of telephones and reading of newspapers in the House. However, the system of parliamentary management that allows one who is ostensibly a servant to openly so criticise those he serves must be questioned. 4 Coad Report, p. 4. 5 Note that the extensive government caucus committee network linked to Cabinet and the select committees is totally uncosted.

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9.4. The Power Of The Public Service FROM WHAT Shonfield and Birch say in Chapter I it is clear that the public An imbalance of opportunity for the bureaucracy. (civil) service need not be a neutral observer of the political scene and of Parliament. They show that public servants can be prime generators of policy formation. Palmer says, "The public servants are likely, in my experience, to have more power in policy-making than rank-and-file politicians within the party". 6Lepper says, "In some respects an independent bureaucracy with a tradition of critical inquiry was never put in place" This approach in its training is a fault of much of the university scene which "reflects this, particularly law and accountancy". 7 Another finding has been that public service advice further enhances their legislative roles. Successive reforms have not cured this problem. Public servants will continue to proffer advice to select committees in the secret, uncosted manner as at present. That there needs to be an improvement in the operation and conduct of select committees and the House there is no doubt. Palmer discusses the development of select committee reports and the interaction with the government caucus committees, saying "The whole thing [the committee process] is prearranged behind closed doors in a fashion the public would find shocking if they knew about it".8 Public servants are actively working in this area. They certainly have power and influence over the workings of the New Zealand House and its committees. But until there is some initiative encouraging the more open study of Parliament leading to different, more democratic procedural norms, they must be seen as an active, largely unmonitored sub-set of an Executive dominant over Parliament. J채nicke also bears out much of that said by Birch, Palmer and Shonfield. He says that "bureaucracy is omnipresent in politics for somewhat the same reasons as industry is omnipresent in the economy". He acknowledges the work done by Max Weber in this context but says, "the process of bureaucratization is seen as a historically unavoidable necessity. But from today's perspective the question increasingly arises how much this process owed to the logic of the facts and to what extent it was conditioned by the logic of power". 9 He also shows how this presence of the permanent bureaucracy in the modern context highlights the need to question one aspect of governance of the state. He is concerned over its "legitimation function". He says, This is a task not for the machinery of state but for the custodians of the national will, in other words the persons and institutions in parliament and government who have the power of decision. These 'decision-makers' decide very little, but they carry the responsibility for nearly everything. It is the politicians who have to bear the responsibility for unemployment and to justify it, even though it was private enterprise that made the wrong investment decisions. It is 'politicians' who have to take responsibility for the failure of 'their' bureaucracy and defend it, although they are scarcely in a position to evaluate the details of such a complex organisation 6

Geoffrey Palmer, Compensation for Incapacity, A Study of Law and Social Change in New Zealand and Australia, Oxford University Press, Wellington, 1980, p. 207. 7 Lepper. op cit. 8 Palmer, G.W.R., New Zealand's Constitution in Crisis:Reforming our Political System, John McIndoe, Dunedin. p. 115. 9 J채nicke, p. 11

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and, unlike career civil servants, have only a brief tenure. When controllers and 'decision-makers' do no more that rubber-stamp decisions taken by others, so that the political function of crystallizing the national will degenerates into a process of legitimation, politics becomes increasingly a scapegoat function. This is perhaps the major dilemma of our constitutional institutions. 10 J채nicke's term 'persons and institutions' recall that used by Goodhart, namely, 'persons and bodies'. But nothing in this research has shown there to be, in the New Zealand context, any new approaches to first recognise the problems of the constitutional state and its bureaucratic machinery similar to that discussed by these two authorities, and then try to deal with them.

9.5. Financial Management And Control OF ALL THE occasions studied, the 1962 reforms need special mention for this Modern overseas procedures advocated-but? could be classed as a year of lost opportunity. 1962 brought a range of outside pressures to reform parliamentary procedures related to financial management. Aitken, McCarthy and Tunzelmann all stressed the need for improvements in parliamentary procedures. This call was backed up by the contributions from Victoria University and the Controller and Auditor-General. Notable was the general interest in overseas practices, not at such a high level since. These were thought either worthy of copying or even just studying. Aitken's contribution was notable for its innovative research, extending to topical Canadian studies on financial and budgeting management. 11McCarthy also brought together valuable British work. The new Public Expenditure Committee was a measure of the achievements of that year. However, this work and interest was not well co-ordinated or critically researched. Crucial errors were detected in the application of basic research carried out at Westminster and used to put together the Public Expenditure Committee. There was a failure to recognise the need for a new, statutory Failure of research.

independence for the Controller and Auditor-General. Also noted was the failure of the State Services Commission to apply the findings of and maintain the impetus given by the McCarthy Commission. In this area, as others appertaining to Parliament, there seems no mechanism to keep alive the sense of innovation coming from such reforms and ensure continuity in their application. New practices always need monitoring to ensure smooth running or the need for occasional redirection. But the New Zealand House has no parliamentary management resource, as do others, to ensure this and keep alive the spirit of reform. Once again, the presence of a dominant, as well as naturally busy, Executive on the Standing Orders Committee must be a hindrance to engendering continuity of reform and a search for routes for innovation. But the desire for improvements seems absent when there is free use of Omnibus bills, urgency, Supplementary Order Papers and retrospective legislation particularly that with economic and financial policy implications. Also, annual Budgets which often include a raft of hurriedly

10 J채nicke, 11

p. 8. See Lambert Report. See Chapter I, Footnote 13

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Economic constitution needed.

considered bills based upon "new policies" under urgency and having no select committee or White Paper consideration, are not conducive to good, democratic government. What is possibly needed is the "economic constitution" suggested by Brian Easton, to curtail the power of a dominant Executive. He says that Geoffrey Palmer's "coverage of economic power is unsatisfactory". He argues a case for greater accountability, particularly through improved parliamentary procedures and says "bridling the government's economic power will lead to a better economic performance. A modern economy in a modern democracy requires a widespread understanding of the economic process. Economic unilateralism has not worked in the past in New Zealand, and will not in the future".12 This philosophy, as advocated, has certainly influenced improvements in budgetary and financial control systems in other legislatures, as this research has shown. But this will not be at all possible in New Zealand while political parties such as National and Labour use the type of annual budget process they do. This, one must repeat, allows the covert and hurried insertion of "new policies" into the legislative programme, benefiting only those who have monopoly inputs before and after this process. Over the years other legislatures have built on the message coming out of social contract theory, and drawn from examples such as the 1215 Magna Carta. The hurried, and executive dominated procedures, as seen in the present New Zealand budgetary and financial process, compare ill with that section from the 1215 Magna Carta covering taxation procedure which said that "in all letters of summons [for taxation purposes] the cause of summons shall be specified', naturally within the context of the forty days notice also laid down. 13 The present procedures used add nothing to the reputation of the New Zealand Parliament as an institution. They also make the representative process one to be viewed cynically by many peripheral community groups and individual citizens.

9.6. The Reform Process Faulted MEMBERS OF THE New Zealand House of Representatives seem not to realise the An awakening needed for the backbenchers. degree to which the process of their institution has changed for the worse since installed last century. Today, there are significant gaps in the recording and publishing of proceedings where this was once done for all stages. Members need actively to take charge of the management of their institution in the manner common overseas. This would need the power of the Parliamentary Service Commission to be reduced and at the same time be balanced by several continuing, permanent management select committees on the overseas model. There also needs to be direct control by Members over the production as well as the storing and archiving of parliamentary documents. This has been delegated to the Clerk of the House. However, past Clerks were either not given the resources or regular reviews to see if standards, whatever they might have been, were maintained. This needs to become one of the direct responsibilities of Members operat-

12

Easton, Brian, Unbridled Economic Power: An Economist Looks at

the Constitution, Working Paper No. 85/41. Presented at the Canterbury branch of the NZ Institute of Public Administration, and the Canterbury Economist Society., Monday, 9 September 1985. 13 Taswell-Langmead, p. 101.

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ing in new management committees with clear, public terms of reference. Open select committees with clear management guidelines could better ensure there is no repetition of stored parliamentary material degenerating into the atrocious condition quoted in the noted National Archives report. But for all this, and much more, to happen, the control over Parliament must be taken from the dominant Executive. Whether this will come within the present "First Past the Post" election system is debatable. New Zealand has two dominant political parties, National and Labour, that talk grandly of reform before gaining office. But, as has been shown, when gaining power they do not move significantly towards making the processes of Parliament more democratic. The promises in the Manifestoes can easily be broken and forgotten. Maybe proportional representation will bring about an improvement in the procedures of Parliament. But the new Alliance grouping of third political parties does not seem to be part of any new policy community either deeply committed to reform or widely knowledgeable of the various parliamentary processes needing change. Also, this new political grouping does not seem to be advocating any research overseas for ideas with which to reform the New Zealand legislature.

9.7. Conclusion IT IS EASY to say that the problems of the New Zealand House of Representatives The end of the journey. are centred upon one question, that of a faulty system for changing the rules, the Standing Orders. But a Parliament, however important it is, is only one institution in a set of institutions and structures involved with the governing process. In a highly centralised unitary State such as New Zealand, it is easy for a legislature, under a dominant Executive, to fall into the trap of only legislating and not concerning itself with the conduct of the governing process. At least it could do this through a much better, resourced system of inquiry into the normal as well as the aberrant aspects of public administration. It can be forgotten that the Westminster system, in its centralised Canuck wisdom. concentration of powers, has many roles. Mr Alistair Fraser, then Clerk of the Ottawa House of Commons, reminded the 1977 Westminster Procedure Committee of this when he said, "In our terms this House, Westminster, is a Federal, Provincial and Municipal Parliament, all at the same time".14 The New Zealand House needs to have some awareness of this. Its place in the representative process should ensure, that at the very least, its inquiry systems are capable of continually scanning the results of government policies operating in these three areas discussed by Fraser. But nothing in this study should be taken to imply that procedures in other Can 'colonies' work out their own democratic solutions?

legislatures should merely be copied without critical evaluation in order to assess their suitability for New Zealand's particular constitutional needs. This approach was advocated by Dr Philip Norton in the 14

Mr Alistair Fraser before the Westminster House of Commons Select Committee on Procedure, Chairman, Sir Thomas Williams, First Report from the Select Committee on Procedure, Session 1977-78, HC 588, Examination of Witnesses, 31 January 1977. p. 104.

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Canadian context. In 1985 the Ottawa McGrath Procedure Committee travelled to Westminster to research views for reforming their House's procedures. In a discussion on motions of confidence at Westminster Norton said that "Erskine May does not make reference to confidence and so on". His message for the Canadian MPs interrogating him was that it was for Canada to work out their own methods working from within their own environment.15 Between academics and legislators in the overseas polities cited here there is some dialogue and shared interest over the problems of legislative institutions. However, this does not exist in New Zealand today. A wide policy community with an interest in the processes of Parliament is absent. Mention has been made of the New Zealand law and accountancy professions. Their overseas contemporaries do make submissions and regularly express an interest in the inner procedural law of their Parliaments. Why these two important professions in New Zealand are not active must remain unanswered here. This question is all the more puzzling given that, from the evidence of this research, New Zealand lawyers(e.g. Aikman, McCarthy, Powles and Woodhouse) Past fine achievements

have been deeply knowledgeable and aware of the realities involved in the use and abuse of public power. Progress in parliamentary accountability will not make much headway unless there develops a wider policy community prepared to devote resources to this task. As has been shown, New Zealand education and religious bodies also express no interest in these matters, which is not the case with their contemporaries overseas. Also, there is the problem of a legislature developing a collective mind-set, placing it apart from the citizenry. As Constant said long ago, Assemblies, however, sectional their composition, are already far too inclined to develop a corporate spirit which isolates them from the nation. Living in a capital city, away from the section of the population that nominated them, the representatives lose touch with the customs, the needs, the way of life of the department they represent.16 Niskanen has also examined this problem, rightfully seeing legislatures as just another form of bureaucracy. He says that "one or more 'watch-dog committees' without a restricted charter to which legislators are randomly assigned could exercise a review in parallel with the review by the [normally appointed] specialised committee on either a random basis or in response to the request of the entire legislature...for these watch-dog committees to be effective, however, they must be in a position to pose credible alternatives to those recommended by the traditional review committees for consideration by the entire legislature". 17 However, the New Zealand House of Representatives has not yet gained the power to examine its own processes. Such examinations are carried out by Cabinet and its agencies, as has been shown. To develop such a critical approach to the workings of a legislature the skills and knowledge needed will have to be developed somewhere within the policy community. Too often, new entrants to the existing institution have been taught only to work and Need for Critical Analysis.

operate inside it. They have not developed any critical approach to the institution and its place in society. Until a greater interest in the legislature is developed, and a legislative policy community committed to democratic change, this institutional socialization will go unrecognised, let alone be challenged by 15

Evidence from Dr Philip Norton before the 1985 Special Committee on the Reform of the House of Commons, Chairman Hon. James A McGrath, P.C., M.P. Issue No 13, pp. 12 & 24, 21 May 1985, House of Commons, Ottawa. 16 Constant, op. cit., p. 206 17 Niskanen, W.A. Bureaucracy:Servant or Master, Hobart Paperback, Institute of Economic Affairs, London, 1973. p. 61.

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critical reviews from outside the dominant executive. Finally, the source of the undoubted problems of the New Zealand House of Does the problem have cultural roots?

Representatives stems from wider, possibly cultural, roots which are outside the scope of this study. This thesis contains analysis of the views drawn from a wide range of influential callings such as law, accountancy, the church and education, all providing essential contributions and supposed substance to what helps make up the New Zealand culture. But they, sadly and significantly, have no developed interest in reforming the inner process of their country's representative chamber. This collection of cultural forces comes from within what one observer, Michael Novak, has called the moral-cultural system. He divides society into three systems, the other two being the political system and the economic and commercial system. They provide, or should provide, an essential interlocking balance. "Each of the three systems needs the other".18 Novak also poses a warning of what could happen through the resulting neglect of the role of this moral-cultural system "which is the sine qua non of the political system and the economic system". In particular he sees crucial damage stemming from a That 'New Class' again!

"new class" which can develop from a base within the moral-cultural system. "[They] may attempt to dominate both the state and the economy" instead of promoting that moral balance between society's other two systems. 19 This approach has a direct link with the previous analysis quoted from Mulgan and Bulpitt, dealing with the influence of central elites and their feeling of comfort with the philosophy of monetarism. No clear reason for this collective indifference from within the New Zealand moral-cultural system has been found. This indifference is the more puzzling for several reasons. One, there is clear evidence of a wide range of research literature covering parliamentary accountability which is freely available from New Zealand university and other libraries. Second, this literature is contained within work done by all the callings, law, accountancy, et alpreviously mentioned. Every one of these callings in New Zealand have been queried about their possible interest in parliamentary accountability. But almost without exception, the literature referred to in this thesis and made use of from New Zealand research sources to examine critically the subject of parliamentary accountability comes only from overseas sources. At this stage, is it possible to attempt to qualify further the cultural reasons for the indifference given in New Zealand towards the study of parliamentary accountability? In the New Zealand community, is there an undue deference to the State and its accountability in the House of Representatives? What are the reasons for this apparent indifference to developing some vigilance to direct towards these authority structures and any associated questions of containing those who wield public power? Is this situation at all similar to that postulated by Professor Allan Bloom, who says: Freedom of mind requires not only, or not even especially, the absence of A 'Chicago School' with a difference?

18 Michael 19

Novak, The Spirit of Democratic Capitalism, Simon and Shuster, New York. 1982. p. 121. Novak. pp. 185-6.

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legal constraints but the presence of alternative thoughts. The most successful tyranny is not one that uses force to ensure uniformity but the one that removes the awareness of other possibilities, that makes it inconceivable that other ways are viable, that removes the sense that there is an outside.20 This statement might not have the supposed cultural relevance to the New Zealand situation. But native New Zealand literature, in discussing central authority structures in this context, is quite bereft of such analysis dealing with alternatives. Parliamentary accountability, as a subject, is not taught at any New Zealand university; a second-order problem thus arises, with no publishing house printing any works on this subject. Any of the present literature has not been found to suggest some new context for containing, and particularly by the improved use of parliamentary accountability, those who, from time to time, are given charge of the State. Another approach might be to ask if New Zealand is, as it were, caught in some sort of pre-Reformation time-warp, a community where the New Learning A need to re-cycle the New Learning?

has as yet not penetrated? 21 Can those "professional" persons previously surveyed and discussed, particularly from the law and the church, be seen to be mirroring in some way the behaviour of those from an earlier age who fought against the unchaining of the Bible, and the use of the vernacular in the liturgy. Such radical moves were to allow the common people to arrange their own direct communication with God and the State? Such 'pre-Reformation' analysis may be seen as excessive. However, from the research for this thesis, many of those in callings such as law, accountancy, education and the church, as well as certain of their professional associations, did not care to take up the central question put to them. As the discussion has shown, this involved the puzzle over these persons and bodies in New Zealand not taking an active interest, equal to that of their contemporaries overseas, in the internal process and law of a legislature. Such a process, if put into play, could not but lead to the improvement of the accountability of the Executive. In turn, this would facilitate Pre-Reformation analysis.

ordinary citizens' ability to both better interact with the processes of the legislature and also, if so desired, allow them to join the quest to further directly work to improve the accountability of the Executive and its advisors. After all, it is these common people, the citizens, who pay for these systems. Thus it is felt that a case could be made that there is some similarity in the situation here in New Zealand, and that prevailing in pre-Reformation times. In both cases, the possible influence of powerful hierarchies stand between the ordinary person's ability to first study the ruling systems and, if so prompted, to take individual action to put their own interpretation of how such systems might operate. In both cases, a specialised language of communication is noted. The pre-Reformation elites used Latin to converse and with which to mark their uniqueness from the common people. Today, is it the language of money, as enshrined in monetarism, that is one cementing factor for the governing elites? And the inhib20 Allan 21

Bloom, The Closing of the American Mind, Simon and Shuster, New York. 1987. p. 249. See 'New Learning' in Thomas M. Lindsay, A History of the Reformation, Second Edition. T. & T. Clark, Edinburgh. 1909. Volume I. pp. 22, 76 and 159.

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ition of individual action can stem from the collective powers of elites taking up favoured positions in a community, denying others access to information and education which would lead to wider expressions of free will. The object of the Reformation's New Learning was to try and free people from such constraints. Certain radical thinkers such as Dean John Colet, one of the Oxford Reformers of that day, saw the Bible "as a personal and not a dogmatic revelation...Luther, Calvin and Colet, whatever else separates them, have this one deeply important thought in common". 22 This was at the beginning of an advocacy justifying allowing common people to arrive at their own interpretation of the world and its various systems, political as well as theological. These new thinkers, Colet among them, also saw the need to query the inheritance of Roman Law that lay upon the thinking of the day, affecting as it did both the Church and the institutions of the State. Their criticism of the progenitors of this legal tradition, said: They had a lawyer's craving for exact definitions. They had the lawyer's idea that the primary duty laid upon them was to enforce obedience to authority, whether that authority expressed itself in external institutions or in the precise definitions of the correct ways of thinking about spiritual truths.... they had also inspired the theologians of the Medieval church with the conception of an intellectual imperialism, where a system of Christian thought, expressed with legal precision, could bind into a comprehensive unity the active intelligence of mankind. Dogmas thus expressed can become the instrument of a tyranny much more penetrating than that of an institution, and so Colet found. 23 Whether New Zealand is in a pre-Reformation stage, or even in a new counter-Reformation one, is a most important question. This needs to be considered, as should the subject of the relationship between the elitist dogmas prevalent pre-Reformation, and those surrounding the mystique of monetarism as presently impinging upon the New Zealand community. However, if the elites in their hierarchies do nothing to stimulate or even allow debate upon this subject, and others, the question around this puzzle of lack of interest in the "ways and means" of the New Zealand legislature must remain unsolved. However, there can still be an exceptional statement. Such an example comes from a well respected past New Zealand Court of Appeal Judge. His statement, already drawn upon, contains a pivotal repetition of the central The 1215 Magna Carta, not any other! place the 1215 Magna Carta has in English legal-constitutional traditions. He uses the words of Professor Helen Cam, who reminds us of "the age-long association of the document with resistance to undue authority ". She also states "In the light of seven and a half centuries of English history Magna Carta is no archaic curiosity".24 It is these exceptions that surely remind us that there has to be a greater awareness of the need for policy communities devoted to exploring the place of the public institutions that rule and regulate the lives of citizens and private organisations. 25It is easy to 22 Lindsay, 23 Lindsay, 24

p. 165. p. 168. Woodhouse. p. 10. From Professor Helen Cam, "Magna Carta--Event or Document?", Selden Society Lecture, 750th Anniversary of Magna Carta, 1965.

193


The Reforms In Retrospect: Conclusion

appear unduly critical of community groups, professions and their members who may be unaware of the implications of studying, or not, the reform of parliamentary accountability mechanisms in a manner similar to their contemporaries overseas. Professor J.K.Galbraith warns of the need for research at times to "be analytical, not adjuratory, detached and not, as far as possible, politically motivated". It might be seen that some of the consequences of certain social actions researched "may be unfortunate..... but the people responsible cannot be condemned; a whole community cannot usefully be blamed or excoriated". 26 But Parliament with its House of Representatives is the central institution where those who are the State could be called to account. And it is here that any new synthesis of accountability and accompanying critical analysis must have its beginning, in contrast to individuals being employed by the State, or remaining deferential to it. But if the required degree of awareness is not evidenced in the community, the Executive-of-the-day will continue to dominate and use the State, those "persons and bodies" so described by Woodhouse, to continue that domination. Finally, J채nicke stresses the need for 'thoroughgoing innovations in society' to overcome what he sees as 'institutional sclerosis'. Moreover, he says The parliamentary system is old, and it has often undergone institutional development during the course of its long history. One such reordering has now been overdue for decades. 27 Whether New Zealand can move in this direction must await events and the possible pressure from the community.

25 See Popper, Chapter I, Footnote 12. 26 J.K. Galbraith, The Culture of Contentment, 27

Penguin Books, Harmondsworth, England. 1992. pp. 10-11.

J채nicke, p. 30.

194


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Letters from Australia. Mr L.M. Barlin, Clerk of the House of Representatives, Canberra, ACT. 11. February 1992.. Mr A R Browning, Clerk of the House, House of Representatives, Canberra, ACT. 9 April 1989.. Professor James Crawford, Faculty of Law, University of Sydney, Sydney, NSW. 23 January 1991.. Mr B.A. Cutting, Assistant Secretary, Resource Management Improvement Branch, 6 August 1992.. Professor G de Q Walker, T C Beirne School of Law, Brisbane, Queensland. 5 February 1991.. Mr Robert Diamond, Acting Clerk-Assistant (Committees), House of Representatives, Canberra, ACT. 25 May 1988.. Mr Harry Evans, Clerk of the Senate, Canberra, ACT.* 28 August 1990.. Mr David Hamer, Melbourne, Victoria.* 20 February 1992.. Miss Anne Lynch, Clerk-Assistant (Committees), Canberra, ACT.* 29 March 1987.. Mr John McMillan, Senior Lecturer, Faculty of Law, Australian National University, Canberra, ACT. 25 January 1991.. Dr G Skene, Parliamentary Library, Canberra, ACT. 21 October 1985.. Mr Alan Cumming Thom, Australasian Study of Parliament Group, Canberra, ACT. 3 April 1991.. Mr Don Thomas, for the Australian Government Solicitor, Canberra, ACT. 16 April 1991.. Mr I M L Turnbull, First Parliamentary Counsel, Canberra, ACT. 30 March 1987.. Miss Catherine Wilson, Electorate Secretary for Senator John Black. 27 July 1989.. Mr Alan Woodward, Clerk of the Parliament, House of Representatives, Brisbane, Queensland. 30 January 1991..

Letters from Canada. Mr I.D. Clark, for the Secretary of the Treasury Board. 23 July 1992.. Mlle Marie Carriere, Executive Assistant to the Chairman, Economic Council of Canada. 14 April 1989.. Mr Richard Clair for Hon Kim Campbell, Minister of Justice. 30 July 1991.. Professor W F Dawson, Professor of Politics, University of Western Ontario, London. 11 March 1991.. Professor C E S Franks, Professor of Politics, Queens University, Kingston, Ontario. 27 March 1991.. Professor James Gillies, Professor of Public Policy, University of York, North York, Ontario. 30 January 1991.. 222


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Mr Mark B Hill, Office of the Auditor-General, Ottawa. 3 January 1991.. The Hon Ray Hnatyshyn, Minister of Justice. 26 November 1986.. Mr Desmond Kimmitt, Office of the Auditor-General, Ottawa. 28 March 1989.. Dr C B Koester, Clerk of the House, House of Commons, Ottawa. 1979-87.* 17 October 1986.. Mr Robert Marleau, Clerk of the House, House of Commons, Ottawa, 1987-.* 8 April 1991.. The Hon Donald Mazankowski, Minister of Finance. 23 March 1992.. Mr J.R. Mitchell, Assistant Secretary of the Cabinet, Machinery of Government, Privy Council Office, Ottawa. 4 August 1992.. Miss Audrey O'Brien, Principal Clerk, Table Research Branch, House of Commons, Ottawa.* 14 October 1987.. Miss Patricia Pilon, Treasury Board, Ottawa. 21 October 1985.. Mr Ben Ward, Department of Finance, Ottawa. 21 October 1985.. The Hon Michael Wilson, Minister of Finance.* 13 April 1988.. Miss Judy Wood for the Rt Hon John M Turner, Leader of the Opposition. 14 July 1989..

Letters from the United Kingdom. Sir Clifford Boulton, KCB, The Clerk of the House of Commons.* 13 March 1984.. Sir Kenneth Bradshaw, KCB, The Clerk of the House of Commons.* 3 December 1990.. Dr Jim Bulpitt, University of Warwick. 2 April 1992.. Mr M H Collon, Law Commission of England. 4 July 1990.. Mr K.J. Hart, Lord Chancellor's Department, London. 9 April 1991.. Mr John Larnich, for the Clerk of the Privy Council, London.* 6 January 1992.. Major Sir Victor Le Fanu, The Serjeant at Arms, House of Commons, Westminster. 23 July 1984.. Dr Ann Robinson, University College, Cardiff, Wales.* 6 December 1988.. Mr Robert Rogers, The Clerk of the Defence Committee, House of Commons. 24 September 1987.. Mr Michael Ryle, The Clerk of Committees, House of Commons. 3 February 1989.. Mr Roger(R.B.) Sands, The Clerk of the Overseas Office, House of Commons.* 3 October 1991.. Mr N P Walker, Assistant Clerk, House of Commons. 25 June 1991..

Political Speeches & Manifestoes. Douglas, R O. "Does New Zealand Have An Economic Future?", Trade and Industry Spokesman, New Zealand Labour Party, 10 January 1982.. 223


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Lange, D. Open Government:The Labour Plan for Democracy in Government, Wellington, Policy Council, New Zealand Labour Party, 1984. . Lange, D. Speech to the annual conference of the New Zealand Worker's Union, Eva Street, Wellington, 18 April 1983. . McCully, Murray. Improving New Zealand's Democracy, (see Flier No 31 p. 2 and Policy No 26 p. 5, NZ National Party, PO Box 1155, Wellington, 11 September 1990. . N Z Labour Party. Machinery of Government, Policy Council, Manuscripts and Archives No. 89-005. Alexander Turnbull Library, 1977.. N Z Labour Party. Policy Document for the 1984 Election, Wellington, 1984.. N Z National Party. General Election Policy, Wellington, 1960.. N Z National Party. National's Economic Vision:General Election Policy, Wellington, 1990.. N Z National Party. Creating a Decent Society:Election Policy, Wellington, 1990.. N Z National Party. General Election Policy, Wellington, 1960.. Palmer, G. The Labour Party Policy on Freedom of Information, Policy Speech, New Zealand Labour Party, 6 December 1980.. Palmer, G. The Labour Party Policy on Human Rights and Civil Liberties, Policy Speech, New Zealand Labour Party, 14 March 1981.. Palmer, G. The Labour Party Policy on Reform of Parliament and Electoral Law, Policy Speech, New Zealand Labour Party, 13 May 1981.. Palmer, G, Open Government and Economic Management, Policy Speech, New Zealand Labour Party, 29 June 1981. . Palmer, G, A Recipe to Change New Zealand's System of Government---Adopt a Bill of Rights and Reform Parliament, Policy Speech to the Annual General Meeting of the Wellington Branch of the International Commission of Jurists, New Zealand Labour Party, 3 August 1981.. Mulgan Richard The Fourth Labour Government - Watershed or Anomaly?, Address to the Medico-Legal Society, 10 September 1991.. Richardson, Ruth The Reform of Parliament, Address to the Council of Civil Liberties, 19 April 1980, Wellington. . Wybrow, J. Open Government: the Labour Plan for Democracy in Government, 1972 Policy Council Manifesto, New Zealand Labour Party, Wellington. .

Taped Interviews The Role of Backbenchers. Members of the New Zealand House of Representatives interviewed in 1982 on the role of backbenchers. (Cf Tom McRae, "Study in Attitudes of Backbenchers to the Parliamentary System", Public Sector, Vol 6, No 1/2, July 1983.). Mr John Banks MP, National, Whangarei. .

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The Role of Treasury. Interviews with opinion leaders, MPs and others on the role of Treasury June 1987-February 1988.. Mr Michael Cox MP.. The Hon Trevor de Cleene MP. . Mr Ken Douglas, President, NZ Federation of Labour. . Mr Terry FitzGerald, Vice President, NZ Employer's Federation.. The Hon George Gair MP. . Mr Wally Gardner, Executive Director, NZ Manufacturers Federation.. Mr Peter Harris, Economist, NZ Public Service Association.. Mr Colin Hicks, President, NZ Public Service Association.. Mr Don Hunn, Chairman, State Services Commission.. Mr Dan Lewis, Chamber of Commerce. . Mr Ian McLean MP. . Mr Ivan Kwok, Solicitor, The Treasury. . 225


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Mr Rob McLagan, Executive Director, Federated Farmers.. Mr Barry Purdue, Executive Director, NZ Retailer's Federation.. Dr John Lepper, Chief Economist, Bank of New Zealand.. Dr Graham Scott, Secretary of The Treasury.. Professor David Sheppard, Money and Finance, Victoria University.. Professor Whata Winiata, Department of Accountancy, Victoria University.

226


Aikman, Prof. Colin, vi, , 190 Aitken, Dr. J. E., 46, 62, 172, 187, 187 Algie, R.M.*, 16, 38, 48, 50, 50, 51, 51, 52, 52, 52, 52, 52, 53, 58, 59, 59, 60, 61, 61, 72, 72 Allen, A.E.*, 84, 84 Allen, George, 2, 3, 184 Alley, Dr. Rod, 84 al-Wahab, Ibrahim, 75, 75, 75 Anderson, Robert*, 176 Anderton, J.P.(Jim)*, 148, 148 Arthur, Basil*, 100, 100, 100, 165, 165

Campbell, F.E., 49 Carr, Clyde*, 29, 29 Carter, D.G.*, 71, 71, 71 Caygill, David*, 92, 113, 114, 122, 131, 131 Chapman, J.T., 137, 137 Chubb, Basil, 27, 27 Clark, Helen*, 113 Clark, Prof. Margaret, vi Close, Katherine, vi Coad, N.S., , 106, 106, 106, 185, 185 Colet, Dean John, v, 193, 193, 193, 193 Collins, Simon, 72 Connelly, Mick*, vii, 78, 82, 82, 83, 86 Constant, Benjamin, 13, 13, 190, 190 Cooper, Albert, 136 Cox, Michael*, 100 Cracknell, V.F.*, 78, 78 Cubey, Mark, v Cullen, Dr Michael*, 100, 119

B

D

Bailey, R.L.*, 86, 86 Ball, Ian, 172 Barclay, B.G.*, 86, 86 Barker, Anthony, 7, 7, 165, 165 Bassett, Dr Michael*, 17, 17, 17, 17, 17, 17 Beetham, B.*, 89, 89, 89 Bendix, Reinhard, 169, 169, 169 Berlin, John, v Berthold, Tom, 171, 171 Biddington, Warren, 129 Bishop, T.O.*, 16 Blackstone, William, vii Blake, Lord, 8 Bloom, Prof. Allan, 191, 192 Bodkin, William*, 24, 24, 38 Bolger, Eamon, 65 Bolger, J.B.(Jim)*, 148, 148, 162, 163, 181 Boston, J., 107, 148, 148 Boulton, Sir Clifford, vi, 173, 173, 173 Bourinot, Sir J., 36, 36 Bradshaw, Sir Kenneth, vi, 105, 105, 167 Bright, John, 15 Brookes, Peter, vi Brosnahan, C.A., 106 Bulpitt, Jim, 110, 110, 110, 111, 111, 146, 148, 148, 191 Burdon, Philip*, 118, 118, 119, 119, 167 Burke, Edmund, 108 Burleigh, Lord, vii Burnett, Kirsty, vi Burns, A.D., 47, 65 Burns, Robert, 72, 72, 72

Davenport, E.H., 81 Davey, Trevor*, 86, 86 Davies, Sandra, 110 Davis, Archbishop Brian, 138 Dawson, W.F., 36 de Cleene, Trevor*, 108 Deloitte,Ross and Tomatsu, 130, 130 Dixon, Keith, 137 Dollimore, Neil, 49, 49, 49, 65, 67, 67, 67, 67, 67, 68, 68, 68, 70, 78 du Cann, Edward, 144, 147 Dunbar, David, vi Dunne, Peter*, 167 Durham, P., 3

Name Index Symbols A

C Calvin, John, 193 Cam, Prof. Helen, 193, 193

E East, Paul*, 80, 88, 88, 100, 151, 153, 153, 162, 163, 163 Easton, Brian, , 188, 188 Edwards, Eileen, vi Edwards, J.G.*, 48, 48 Einzig, Paul, 66, 66 Elizabeth I,, 4 Elworthy, Peter, 118 Emett, Robyn, vi English, Bill*, 170 Eulau, Heinz, 182 Evans, Harold, v, 92, 92, 92, 93 Evans, Harry, vi, 132, 132

F Falloon, John*, 125, 126, 126, 128, 129, 129, 129 Faulkner, A.J.*, 86 Fay, Michael, 147 Finlay, A.M.*, 78, 84, 85, 85, 86, 86 Fisher, Douglas, 138

227


Name Index

FitzGerald, James Edward, 28, 107, 107, 109 Fletcher, David, 178 Flook, C., 148 Ford, Robert, 72 Francis, Sherrah, 49, 179, 179 Fraser, Alistair, 29, 189, 189, 189 Fraser, Peter*, 29, 29 Freear, Suzanne, vi

G Gair, George*, 84, 84, 85, 86 Galbraith, Prof. J.K., v, 165, 194, 194 Gandar, G.*, 86, 86 Garnier, Tony, 103, 104, 104, 104, 104, 104 Garrett, John, 144, 144 George I,, v, 5, 5 Gibson, L.R., 172 Gibson, Neville, vii Gilberd, Bishop Bruce, 138 Gladstone, William, 27, 27, 98, 98 Glazebrook, Susan, 172 Goodhart, A.L., 3, 3, 187 Graham, Doug*, 122, 145 Grant, Jeff*, vii Gray, Sir Robin*, 24, 185 Greenwood, Marie, 138 Greider, William, 164 Gresham, Peter*, 7 Grey, James Grattan, 21, 21, 21, 21, 22, 22, 22, 22, 22 Griffith, J.A.G., 7, 8, 54, 97, 105, 105, 173

H Hackett, Fred*, 55, 55, 55, 58, 59 Hagenah, Evelyn, 138 Hale, Sir Matthew, vii Hall, T.D.H., 36 Hall, T D H, 36, 36 Hall, Terry, 148 Hampden, John, 5, 5 Hanan, Ralph*, 74, 74, 75, 75, 75, 75, 78, 79, 83 Harker, Geoffrey*, 18, 18, 18, 18, 18, 19, 19, 24, 28, 30, 33, 51, 51, 60, 61 Harris, Mary, vi Harrison, J.R.*, 65, 65, 66, 66, 66, 67, 68, 84, 86, 87, 89, 89, 89 Harrison, R.J., 65, 65 Hart, K.J., 136 Hearn, Shona, 138 Herft, Bishop Roger, 138 Hetzner, C., 97, 97 Holland, Harry*, 13, 16 Holland, Sidney*, 15, 16, 16, 16, 16, 16, 16, 17, 17, 17, 17, 17, 17, 17, 18, 22, 22, 22, 23, 24, 24, 29, 29, 29, 29, 29, 30, 30, 32, 32, 33, 33, 33, 33, 34, 34, 34, 35, 36, 36, 37, 37, 37, 38, 39, 39, 39, 41, 41, 41, 41, 42, 50, 50, 91, 182, 184, 184 Holmes, Sir Frank, 91, 92, 146, 146

Holyoake,Keith*, 13, 24, 30, 43, 43, 47, 47, 50, 50, 50, 50, 50, 51, 51, 51, 51, 51, 52, 52, 52, 52, 52, 53, 53, 53, 54, 54, 54, 54, 55, 55, 55, 55, 55, 55, 56, 56, 56, 56, 57, 57, 57, 57, 57, 58, 58, 58, 58, 58, 59, 59, 59, 59, 59, 59, 60, 61, 61, 62, 62, 68, 69, 69, 69, 70, 70, 70, 71, 71, 71, 78, 78, 78, 79, 81, 83, 84, 84, 86 Howard, Mabel*, 56 Hunn, Donald, vii, 145, 146 Hunt, J.L.*, 79, 84, 85, 85, 86, 86, 87, 88, 100, 108, 114, 114, 114, 119, 119, 122, 123, 126, 126, 126, 127, 128, 153, 153

J Jack, Sir Roy*, 24, 25, 51, 51, 51, 59, 59, 78, 78, 79, 84, 84, 185 Jackson, Professor Keith, 15, 16, 16, 16, 16, 16, 16, 16, 16, 17, 18, 18, 22, 23, 24, 24, 24, 97, 97 James, Colin, 190 James I,, 4, 4 J채nicke, Prof. Martin, v, 169, 170, 186, 186, 187, 187, 194, 194 J채nicke, Prof. MartinMartin, John, 170 Jeffries, Bill*, 128 Jennings, Ivor, 66 Jones-Kemp, Linda, vi

K Karps, Paul D., 182 Keating, Michael, 145 Kelly, R.A., 169 Kidd, Doug*, 171, 171, 171, 171, 172 Kilroy, Simon, 107, 109 King, Peter, 75 Kirk, Norman*, 23, 78, 83, 84, 86, 86, 86, 86, 110 Knapp, Gary*, 100 Koester, Dr C.B., vi, 100 Kundera, Milan, 162 Kwok, Ivan, 146

L Lake, Harry*, 41, 41, 71 Laking, Rob, 172 Lambert, Neville, 138 Lang, Henry, 92, 147, 148 Lange, David*, 89, 92, 92, 94, 94, 94, 94, 94, 95, 95, 95, 95, 95, 95, 96, 96, 96, 99, 99, 102, 105, 109, 109, 110, 110, 110, , , 111, 169, 171, 172, 176, 181 Lapwood, H.R.*, 86, 86 Lenthall, William, Speaker, 4, 4, 4 Lepper, Dr. John, 170, 186, 186 Levine, Charles H., 26, 26 Levine, Dr Stephen, 2, 184, 184 Lijphart, Arend, 2, 2, 2, 24 Lindsay, Thomas. M., 192, 193, 193 Lipson, Prof. Leslie, 26, 26, 27, 27, 27, 27, 35, 35,

228


Name Index

35, 36, 97 Littlejohn, C.J., 105 Lloyd, Selwyn, 4, 4, 4, 4, 4, 6, 6, 6, 8, 8, 185, 185 Logan, Basil, 172, 172, 172, 172 Lowe, Derek, vii Luther, Martin, 193 Luxton, J.L.*, 89, 89, 89 Lynch, Anne, vi

92, 92, 100, 110, 178 Mulgan, Richard, 110, 110, 146, 148, 191 Munro, Rob*, vii, 100, 108, 109 Munro, Sir Leslie*, 80, 80, 82, 83, 93 Murdoch, Simon, 172 Murphy, W.E., 65

N

M Macfarlane, R*, 51, 51 Mackay, John, 22 Macken, Deirdre, vi Mackenzie, K.R., 5, 5, 6, 6 Mahon, Peter, 179 Marleau, Robert, vi, 132, 133 Marshall, Jack*, 25, 48, 48, 51, 51, 78, 84, 84, 86 Martin, John, 107, Mary, Queen of Scots, 4 Mascarenhas, Dr R.C., vi Mason, Rex*, 29, 29, 29, 29, 29, 30, 30, 30, 30, 30, 30, 31, 31, 31, 31, 31, 31, 32, 32, 32, 33, 33, 33, 33, 33, 33, 34, 34, 35, 41, 41, 41, 41, 48, 48, 51, 51, 55, 55, 56, 59, 60, 112, 128, 151, 163 Matheson, Ian, vi Matthewson, Clive*, 130, 130 Maxwell, Ralph*, 54 May, Erskine, 25, 36, 36, 52, 52, 52, 52, 52, 52, 52, 52, 54, 190 May, Henry*, 51, 51, 52, 52, 57, 78, 84 Mayson, Richard*, 86, 86, 86, 184 McAlpine, John*, 59, 59 McCarthy, Sir Thaddeus, vi, 46, 47, 47, 62, 72, 72, 72, 73, 73, 73, 73, 73, 73, 73, 73, 74, 74, 74, 76, 110, 138, 144, 144, 144, 144, 144, 146, 146, 146, 147, 187, 187, 187, 190 McCombs, Terence*, 29, 29 McCully, Murray*, 149, 150, 163 McGee, David, vi, 21, 21, 21, 25, 25, 76, 132, 132, 133, 185, 185, 185 McGrath, J.A., 100, 100, , 135, 136, 138, 138, 190, 190 McKeen, Robert*, 29, 29 McKinnon, Don*, 100 McLay, J.*, 100 McLean, Ian*, 171, , 171, 172 McLeay, Dr Elizabeth, vi McMillan, Ethel, 56 McRae, Tom, 100, 102, 103, 108, 108, 108, 146, 146, 147, 166, 166, 168, 169, 170, 177 Mentiplay, Cedric, 90 Michener, Roland, 79 Mitchell, J.R., vi Monro, Sir David, Speaker*, 25, 25, 25 Montesquieu, Charles, vii Moohan, Mick*, 57, 57, 58 Moore, Tim, 174, 175, 175 Muldoon, R.D.*, 78, 86, 86, 87, 87, 90, 90, 91, 91,

Nash, Walter*, 17, 18, 29, 30, 30, 30, 30, 51, 59, 59, 59, 59, 60, 60, 61, 71 Neeson, Brian*, 163 Neil, Alan*, 49 Neilson, Peter*, 107, 114, 114, 115, 115, 115, 117, 117, 118, 118, 118, 118, 118, 118, 119, 123, 123, 124, 124, 124, 124, 125 Niskanen, Prof. W.A., 190, 190 Nordmeyer, Arnold*, 51, 51, 52, 52, 52, 52, 52, 52, 53 Normanton, E.L., 28, 28 Norton, Philip, 97, 97, 189, 190, 190 Novak, Michael, 191, 191, 191, 191 Noy, Sir William, 5, 5

O O'Brien, Gerald, vii O'Regan. Katherine, vii Ogier, Bill, vi Onslow, The Hon. Arthur. Speaker, 6, 6, 6, 51, 78 Oram, Matthew*, 15, 15, 15, 18, 18, 19, 24, 29, 33, 33, 33, 34, 34, 35, 42, 184 Ormsby, D.L., vii, 65 Ouellet, AndrĂŠ, 100 Oughton, David, 172, 180

P Pallot, Dr June, 107, 107, 110 Palmer, Geoffrey*, 88, 88, 88, 91, 92, 92, 92, 94, 94, 94, 94, 94, 94, 96, 96, 96, 96, 96, 96, 96, 97, 97, 97, 97, 98, 98, 98, 98, 98, 98, 98, 99, 99, 99, 100, 100, 100, 100, 101, 101, 101, 102, 102, 102, 103, 103, 103, 104, 105, 108, 109, 109, 110, 111, 144, 166, 166, 169, 171, 172, 173, 173, 176, 181, 186, 186, 186, 186, 186, 188 Pateman, Professor Carole, v, 13, 13, 111, 111, 111 Paton, G.W., 3 Patterson, Kathryn, vii Patterson, Prof. Samuel, v, 13, 13, 13, 164, 175 Paul, E.V., 23 Perry, T.W., 39 Phelips, Sir Edward, Speaker, 4, 4, 4 Pilgrim, Colleen, 138 Popper, Karl, 3, 3, 194 Potter, Judith, 136 Powles, Sir Guy, vi, 92, 166, 166, 190 Prebble, Richard*, 87, 87, 88, 92, 100 Price, R., 65

229


Name Index

Pring, David, 98, 98, 144 Pringle, Michael, vi Probine, Dr. Mervyn, 167, 167, 167 Pym, John, 5, 5 Pyne, Lindsay, 147

Sutton, Jim*, 107, 108, 108, 167

T Talboys, B.*, 87 Taylor, John, 138 Tennet, Elizabeth*, 167 Terris, John*, 100, 167, 168, 168 Thomson, D.C.*, 87, 87, 87 Tizard, R.*, 87 Todd, Alpheus, 25, 25, 25 Tombleson, EsmĂŠ*, vii, 56 Trow, Prof. Don, 137, 137, 137 Turnbull, I.M.L., 87 Turner, Sir Alexander, 92 Tyler, B.H.C., vii, 107, 107, 107, 107, 107, 107, 108, 108, 108, 162, 162, 162

R Rata, Matiu*, 83, 83 Ratana, I.M.*, 56 Reid, Prof. Gordon, 27, 63, 81, 81, 81, 81, 81 Richardson, Ruth*, 108, 136, 150, 162, 163, 167 Richardson, Sir Ivor, 1, 137 Richwhite, C.M., 39 Riddiford, Daniel*, 78, 78, 85, 86, 184 Robb, Alan J., 137 Roberts, Prof. J.L., 65 Robertson, Lois, 138 Robinson, A.D., vi, 63, 65, 65, 84 Robinson, Dr Ann, 143 Rodger, Stan*, 100, 110, 171, , 171, 172 Rogers, Robert, vi, 100 Roseveare, J., 167 Ross, Frances, 51 Rowling, Bill*, 86, 86, 87 Ryle, Michael, vi, 7, 8, 54, 97, 105, 105, 173

U Upton, Simon*, 163

V Vogel, Julius*, 39 von Tunzelmann, A.F., 46

W

S Salt, Ailsa, vi Samuel, Oliver*, 36 Sands, Roger(R.B.), vi, 133, 133 Savage, Michael J.*, 16, 16, 16 Scarman, Lord Leslie George, 179, 179, 179, 179 Scherer, Peter, vii Scott, Dr Graham, vii, 145, 145 Scott, Tom, 89 Scott, William*, 51, 51, 55, 55, 56, 56, 57, 57, 57, 60, 60, 60, 60, 61, 67 Shand, David, 84, 145 Shand, Nedra, vi Shand, T.P.*, 72, 72 Shaw, Sir Charles, 6 Sheppard, Prof. David, 144, 147, 147, 148, 168, 168 Shirley, K.L*, 176 Shonfield, Andrew, 8, 32, 32, 32, 186, 186 Simons, Petrus, 152 Simpson, Tony, 172 Skinner, Clarry*, 51, 51 Smith, S.W.*, 41, 41 Spooner, G.A., 71, 71 Stafford, E.W.*, 25, 25, 25 Stephens, Rev. Barbara, 138 Stevas, Norman St. John, 109 Stevenson, Rona*, 79, 79, 79 Stockman, David A., v, 164, 164, 164, 164, 164, 164, 164, 165, 165 Stone, Andrew, 162 Strateman, Catherine, 81

Walker, N.P, 64, 64 Wall, Sir Gerry*, 86, 86, 103, 177 Wallace,J.H., 87 Wallace, J.H., 1 Walpole, Sir Robert, 5, 5, 5, 5, 5, 5, 6 Walsh, Pat, 109, 110 Walsh, Peter, 145 Ward, V.R., 1, 176 Waring, Marilyn*, 88, 88, 88, 89, 89, 97 Watt, Hugh*, 78, 80, 80, 84, 86, 86 Webb, Sir Clifton*, 24, 30, 30, 30, 31, 31, 31, 31, 32, 32, 32 Weber, Max, , 169, 169, 169, 169, 169, 186 Weinstock, Arnold, 143 Wheare, K.C., 24, 24, 24 Whitehead, Stan*, 86, 86, 87, 87 Whitwell, Dr Jan, 144, 148, 168 Wilde, F.H.*, 100, 125 Wilkins, Roger, 174, 175, 175 Williams, Cardinal Thomas, 138 Williams, J.H.*, 86 Williams, Sir Thomas, 136, 189 Willis, Max, 175, 175, 175 Wilson, Alison, vi Wilson, Michael H., 144, 144 Wilson, Noel, vi Wilson, Stuart, v Winkler, Phyllis, v Wolin, Sheldon S., 3, 3 Wood, Prof. Anthony, 23, 23, 112, 113, 113 Woodhouse, Sir Owen, vi, 3, 3, 3, 3, 3, 3, 6, 6, 190, 193, 194

230


Name Index

Wybrow, J, 86

Y Yeatman, Prof. Anna, v, 146, 146, 147

231


Glossary of titles and terms Symbols "Colonial Parliament", 170

A Act of Settlement, 1701, 4 Anti-Communism, 17 Anti-Unionism, 17 Aotea Square Riot Report, 179 Auditor-General, 47, 162 Auditor-General downgraded, 106 Australian capital works planning, 145

B Beaglehole Lecture, Sixth, 3 Bill of Rights, 1689, 6 Board of Internal Economy, Canada, 25 Brixton disorders, 1981, 179 Budgetary and Financial Control ff, 139

C Canadian Bar Association, 144 Canadian Budgetary process, 136 Canadian Chamber of Commerce, 144, 144 Canadian Institute of Chartered Accountants, 144 Canadian operational plans, 144 Canadian Tax Foundation, 180 Clerk downgraded, 104 CoadCoad, N.S. Report, 105 Commissioners, U.K. Commons, 25 Commissions of Inquiry, 180 Comparative analysis, 13 Conference Board of Canada, 144 Constitution, views on, 8 Council of the Law Society of England, 136 Council of the Law Society of Scotland, 136 Crown, attempt at definition, 7

F Failure of research, 187 Fast-track electricity reform, 130 Fast-tracking of bills, 112 Fast-tracking process, 128 Finance Bill 1952, non-financial clauses, 38 Finance Bills, Nos. 2 and 4, 1990ff, 113 Financial management, 187 Financial managementff, 26 Financial procedures reformed, 1962, 65 Fiscal Responsibility, 165

G General Assembly, 179 Grand Remonstrance, 5

H Hansard reporting difficulty, 88 House of Commons Commission, 103

I Ibbs Report, Westminster, 173 IMF legislation introducedff, 70 Intellectual imperialism, 193

J Japanese independence, 170

K Keynesian critics, 164

L

D

Lack of economic debate, 130 Lack of fair, consistent processff, 175 Lack of written recordsff, 21 Lambert Report, Canada, 3 Law Reform Committee of the Bar Council, 136 Legislative Council, 16 Legislative Council, better managerial systems, 36 Letters from NZ groups, 138 Liberal language, 8 Lobbyists, 32 Logan Report, 1991, 172

delay, 32 Destruction of files, 65

M

E Economic constitution, EastonEaston, Brian, 188 Electricity restructuring, 118 Elitism, 110 Estimates Committee, UK, 63 Executive Branch, rise in numbers, 23 Executive dominance, 182 Executive dominanceff, 22, 51

Magna Carta,1215, 193 Magna Carta, 1215, 3, 6, 188 Management change to Parliament, 102 Managerialism, 109, 146 Managerialism, Boston's views, 148 Managing the Parliament, NSW, 175 Max Planck Centre, 138 McGrathMcGrath, J.A. Committee, Can., 135 McLeanMcLean, Ian*-RodgerRodger, Stan* Re232


Glossary of titles and terms

port, 1991, 171 Ministerial responsibility, 5, 8 Ministerial Warrants, 11 Monetarism, philosophy of, 109, 191 Monetarism as a philospohy, 110 Moral-cultural system, 191 moral force monetarism, 148 moral-force monetarism, 150 Mother of Parliaments, 15 Mutiny Act, 1689, 4

Public Expenditure Committee(PEC), 63 Public Safety Conservation Act, 17

R Reagan Revolution, 163 Republican doctrine, 164 Retrospective legislation, 148 Retrospective monetary policy, 148 Roman lawyers, 193 Royal Commission, Electoral Reform, 1 Royal Commission, Financial Management and Accountability, Canada, 3 Royal Commission, Social Policy, 1 Royal Commission, State Services, 1962, 46 Royal Commission, State Services, 1962ff, 72

N National's 1990 reformsff, 149 National's 1991 Mother of All Budgetsff, 150 National's Decent Society, 148 National's Enterprise State, 148 Natural justice, 7 New Learning recycled?, 192 New Zealand Council of Civil Liberties, 17 No publicity for reform exercises, 165 NZ accountancy bodiesff, 137 N Z House Guidelines, 167 NZ law bodiesff, 136

S

O Oaths of Allegiance, N Z, 9 Official Secrets Act, U.K., 17 Ombudsman, 45 Ombudsmanff, 74 Omnibus bills, 113 Opposition committee chairs, 69 Ottawa Press Gallery, 144 Overseas comment on 'fast-tracking' bills, 132

P Parliamentary accountability, no NZ literature, 192 Parliamentary accountability, not taught, 192 Parliamentary Service Commission, problems withff, 170 Participation, 13 Party whips, power of, 185 Peripheralisation, 110 Petition of Right, 5 Plowden Report, 144 Police Offenses Amendment Bill, 1951, 17 Policy communities, 25 Policy responsiveness, 182 Power of the bureaucratff, 166 Powers of elites, 193 Pre-Reformation analysis, 192 Press commentff, 162 Privy Council, Canada, 4 Probity of records, 21 Provisional Collection of Taxes Act 1913, UK, 81 Public Accounts Committee(PAC), U.K., 27 Public capital estate planning, 144

Select Committee on Constitutional Reform, 1952, 16 Ship Money, 5 Social contract theory, 188 Speaker, position of, 24 Speaker, role offf, 4 Speaker's powers reduced, 34 Speaker partisanship, 184 Standing Orders Committee, 1951, 15 Standing Orders exercise, 1962ff, 43 Standing Orders exercise, 1968ff, 78 Standing Orders exercise, 1972ff, 84 Standing Orders exercise, 1974ff, 86 Standing Orders exercise, 1979, 87 Standing Orders exercise, 1985ff, 94 State, definition of, 3 state failure, 170 State Services Commission, 146 Supplementary Order Papers, 113 Supply, 11 Supply and Ways and Means Comittees abolished, 80 Supply-side theory, 164

T Tacking-on of bills, 112 Tasman Pulp and Paper scheme, 39 Teleological promiscuity, 147 Treasury's role, lack of definition, 146 Trickle-down theory, 164 Tyranny, 13

U UK accountancy body, 136 U K Chartered Institute of Public Finance and Accountancy, 137, 180 U K Consultative Committee of Accountancy Bodies, 137, 180 United States Congress, 13

233


Glossary of titles and terms

V Voting splits, 1892-1911, 35

W Waterfront dispute, 1951, 17 Ways and Means, 11 Ways and Means procedures, 81 WeberWeber, Max, on inquiry process, 169 Westminster model, 13 Westminster model ff, 2 Westminster procedures, 147 Whitehall language, 8

234


A Parliament in Crisis