Chapter 16 Debate
Following the proposing of the question on a motion, the issue is usually, but not invariably, thrown open for general debate. There are many types of motion which are not debatable at all and which even the mover of the motion cannot speak to. The House has decided that decisions on certain procedural questions must be made at once, without any debate. But each question proposed to the House is inherently debatable unless this right has expressly been taken away by the Standing Orders.
Debate arises after question proposed
Where the right of debate has not been prohibited, the one member who is unable to speak to the motion after the question on it has been proposed is the mover of the motion. The mover’s time to speak is now over. A speech in support of a motion by the mover can be made only before the Speaker proposes the question. On sitting down, the mover’s speaking rights are terminated and, the question having been proposed, the other members of the House now have the opportunity to speak to it.
In general, each member may speak only once to a question before the House.
The main exception to this is in committee where members may speak more than once, but there are other exceptions which are noted as appropriate. A new question or questions may arise during the course of a debate by the moving of an amendment or amendments, and members have a right to speak once to each such new question, even though they may have already spoken to the original or main question.
Members may also speak again in debate to correct a misrepresentation of their speech by a subsequent speaker.
(See Chapter 19.)
Restrictions on the length of debate
All debates in the House are subject to some time restraint. Time limits on speeches have been a part of parliamentary procedure since 1894. Before that, individual members were unrestricted in the length of time they could address the House – the record length of speech being that of Mr W L Rees, who spoke for some 24 hours in 1876 in a debate on whether the members of the Government were disqualified from membership of the House. The adoption of time limits at the end of the nineteenth century obviated for some time the necessity to adopt the more draconian procedures that the United Kingdom House of Commons was then forced to countenance in the face of obstruction by Irish members. But the House of Representatives with its highly developed system of restrictions on the length of debates now has a more formidable array of weapons available against deliberate time-wasting or obstruction than do most other legislatures. The restrictions that are employed are of two general types: those which impose time limits – whether on the length of a member’s speech in a particular debate or the length of the whole debate – and those which limit the number of speeches that can be made in a particular debate. Usually these restrictions are employed concurrently.
Time limiting individual speeches was the original type of time restriction adopted in 1894. Appendix A of the Standing Orders sets out a comprehensive list of individual speaking times on particular debates.
In addition, the Business Committee has power to determine the speaking times of individual members on an item of business.
The committee may use this power in respect of a particular debate to be held in the House or in respect of all debates of a particular class. In both the forty-sixth and forty-seventh Parliaments, for example, it decided to vary the speaking times on the debate on the introduction of all Members’ bills to accommodate the general time limits to the particular party alignments of those Parliaments.
There is a general rule that each member is entitled to speak for 10 minutes except where expressly provided to the contrary. But Appendix A does expressly provide for the time to speak in so many instances that falling back on this rule is the exception. To determine how long a member may speak to the question before the House, it is necessary to consider the type of debate involved. The shortest period allowed for an individual speech is five minutes (two minutes are permitted for a Minister to reply to comments on a ministerial statement), while the longest allowed an ordinary member is 15 minutes. The Minister of Finance in delivering the Budget and the Prime Minister in making the Prime Minister’s statement are not limited in time at all, and extended times are prescribed for party leaders in other debates. The time limit of a speech on an amendment is the same as that on the original motion. Time taken up in interpreting a member’s speech (whether the interpretation is rendered by the member or the official interpreter) is not counted against the time for the member to speak.
The Speaker (in committee, the chairperson) is responsible for drawing the attention of members to when their permitted speaking time is up. This is done by a short ring on an electric bell, the Speaker’s chair and the Clerk’s seat at the Table being equipped with timing devices for the purpose. In general, the warning bell is sounded five minutes before the end of a 15-, 20- or 30-minute speech and two minutes before the end of a 10-minute speech. No warning bell is given in respect of a five-minute speech unless this is specifically requested. Other arrangements than these may be made if the member speaking or the whips desire them and the presiding officer agrees.
Time limits and points of order
As all individual speeches are limited in some way, members are jealous to protect their time from being eaten into by points of order (which are not speeches to a question and do not have a time limit of their own
). In general, a member has no right to claim an allowance for time lost in dealing with a point of order, but most Speakers do allow members extra time for such interruptions by not counting the time taken up on a point of order as part of the member’s speech.
This is especially the case where the point of order is decided in favour of the member speaking. However, where points of order are raised because the member speaking is transgressing against the rules of the House, the Speaker might not be particularly generous in allowing extra speaking time in compensation.
A certain amount of flexibility is essential for the Speaker in this matter. On the one hand, if extra time were not allowed, a member’s opponents could deny the member any speaking time at all by a constant series of spurious points of order. On the other hand, a member who persists in speaking irrelevantly or using unparliamentary language cannot expect any concessions for time lost as a result of any disorder which ensues.
In committee, with its generally shorter speaking times, the practice has been for the clock to be stopped when a point of order is raised. The chairperson will subsequently decide whether the time occupied in determining the point of order is to be deducted from the speech. On the other hand, when the chairperson intervenes to point out that the member speaking is not being relevant, the clock is not stopped and the member loses that time.
Time limits on the whole debate
There are a number of debates which have time limits imposed on them by specifying the number of hours that the debate may last. The Business Committee has power to vary these.
The debates subject to these time limits include the Address in Reply debate, the debate on the Prime Minister’s statement and most financial debates, such as the Budget debate.
Where a debate is subject to a time limit, this time is taken to include any time expended on points of order arising during the course of debate, at least where those points of order arise directly out of that debate. So no extra time is added to the whole debate for time spent on points of order (time may be added to individual speeches made within the debate in accordance with the principles discussed above). Similarly, any time spent interpreting members’ speeches is regarded as part of the debate and counts against the total time allowed for it.
When the time allowed for a debate expires, the member speaking is immediately interrupted. There is no provision for an extension of the debate to permit that member’s speech to be concluded.
Indeed, other members who might have expected to get the opportunity to speak may miss out altogether if a significant portion of debating time has been expended on points of order. In the case of the Budget debate, where there is provision for the Minister to speak in reply to the debate, the debate is interrupted 10 minutes before it is due to conclude and the Minister is given the opportunity to speak in reply.
Restrictions on the number of speakers
In respect of most debates, except those subject to the overall time limits discussed above, there are restrictions on the number of speeches that may be made in the debate. This is the case, for example, with debates on the various stages of bills. Generally 12 speeches are allowed for each debate, although on the first reading of Members’, private or local bills only seven speeches are permitted.
In such debates, even if a member does not use all of the individual speaking time available to the member, no extra speeches are allowed. This contrasts with debates that are subject to a simple time limit where time saved by individual members in speaking may permit more members to participate in the debate.
There are 120 members of the House. One, the Speaker, presides and does not take part in the debate. Another, the mover, has concluded his or her speech when the debate is thrown open to other members. There are, therefore, 118 potential candidates for the privilege of speaking to the question before the House. In most cases the real number of potential speakers is likely to be much lower than this, because not all members will be present or will wish to take part in every debate. Only on the Address in Reply, Prime Minister’s statement and Budget debates will significant numbers of members of the House participate in a debate. Even so, priorities of speaking in debate must be resolved. This is largely the job of the Business Committee and party whips within the framework of the House’s rules on the order of calling members in debate.
Obtaining the call
When a member wishes to speak to a question, that member must rise and call to the Speaker. Once the Speaker has recognised the member by name the member has the floor and may proceed to speak.
If there is more than one member seeking the call, the Speaker exercises a discretion as to which of those members is selected to speak, and the member selected is then entitled to speak.
Such a rule of Speaker’s discretion could continue to operate in a completely arbitrary fashion, with each member trying to “catch the Speaker’s eye” but being entirely ignorant of what criteria (if any) the Speaker employed when making the decision as to who will be next to speak. In fact, the Standing Orders, Speakers’ rulings and practices devised by the Business Committee have laid down ground rules for the exercise of this discretion of calling members to speak. Members are thus able to predict, fairly accurately, how the Speaker will exercise the discretion to call members in any particular instance.
Allocation of calls
Until the development of a multi-party environment with the change to the electoral system, New Zealand had had a two-party system in the House for some 60 years. In these circumstances the principle applied by Speakers in allocating calls to speak in debate was that contributions to a debate alternated between the two sides of the House.
Vestiges of this principle are still applied in deciding on the allocation of calls, but in a Parliament with a number of different parties represented it is obviously no longer sufficient on its own as a criterion for the Speaker. Furthermore, the strength of party organisation in the House has led to a greater recognition of the party representative nature of a member’s contribution to debate and the consequent need to recognise this explicitly in the rules. As a result, a new set of criteria to guide the Speaker in allocating calls was adopted in 1995 and set out in the Standing Orders.
The Speaker takes account of these criteria, but ultimately it is the Speaker’s decision as to whom to call to speak in any particular instance. If, for instance, the call is given to a member by the Speaker in misapplication of those criteria, it cannot be taken away (although the member may, in these circumstances, voluntarily surrender it).
On the other hand, if a member who has been called does not have speaking rights at all because he or she has already spoken in the debate, the call is invalidly given and the Speaker will terminate the member’s speech on becoming aware of this fact.
Factors guiding the Speaker
In addition to the vestigial influence of the principle of calls alternating between the two sides of a question, there are four other factors that the Standing Orders require the Speaker to take into account in deciding whom to call to speak.
If possible, a member of each party should be able to speak in each debate
It is desirable that at least one member of each party should (if they wish) be able to participate in each debate that is held. But, as recognised by the Standing Order, this will not always be possible. On the first reading of Members’, private and local bills only six members can speak. In many other debates only 12 members can do so. Small parties and independent members cannot expect to be represented in every debate. An independent member, in particular, is regarded as 1/120th of the House and this will guide the Speaker in determining when to give the call to an independent, though that member’s expertise and particular interest in the subject under debate will also weigh in the balance.
Overall participation in a debate should be approximately proportional to party membership in the House
Party proportionality in participation in each debate is also desirable. But again only very approximate effect can be given to this criterion, especially given the desire to be as inclusive as possible in respect of party participation in a debate.
Priority should be given to party spokespersons in order of size of party membership in the House
The leading spokesperson for each party should be called as early as possible in each debate. This guides the order in which parties are given an opportunity to participate in debates in the House.
The seniority of members and the interests and expertise of individual members who wish to speak
The seniority of members and their interests and expertise come into play in the longer debates such as the Budget and the Address in Reply debates and in debates on conscience issues which are not being conducted along party lines. In the latter, the Speaker exercises a more obvious discretion as to whom to call. But generally it is a matter for each party to determine who represents it in any particular debate.
Allied with the factors guiding the Speaker in deciding how to exercise the discretion to call members in a debate, is likely to be a set of arrangements between the parties as to the sequence in which party members will be called. Indeed, if such arrangements do not exist, the Speaker may suggest that they be devised so that members understand reasonably accurately when they will be called upon to speak. Consequently, lists determining the order in which parties will be called to speak on the various stages of bills are prepared under the Speaker’s direction. These differ depending upon the party make up of each Parliament. They are adapted if party numbers change within the term of a Parliament. The Business Committee too has the power to determine how the time for debate on an item of business is to be allocated among the parties represented in the House.
It does this consistently with the Wednesday general debate by approving a roster for several weeks ahead setting out a sequential allocation of the speaking slots to be given to each party in each debate. Parties may exchange these slots among themselves as is convenient to them.
Apart from lists prepared by the Speaker and formal determinations by the Business Committee, the party whips will often draw up speaking lists for longer debates. The Speaker will invariably follow these in giving the call. These pre-arrangements of speaking slots are seen as being a more efficient use of members’ time than competing for a call in the Chamber at random. But the fact that a member is not on a party’s speaking list does not deprive that member of the right to seek the call. On the other hand, the fact that almost all debates in the House are subject to some limitation rules means that not all members can speak on every occasion that they wish to. In this regard the Speaker will endeavour to see that each member gets a fair opportunity to speak while, at the same time, being fair to other members.
An individual speaking time (whether in a debate subject to an overall time limit or a debate for which there are a limited number of calls) may be shared between two members of the same party or between two members of different parties if both parties agree.
A party or the parties which wish to utilise this right inform the Speaker in advance and the Speaker in calling the first of the two members to speak in turn informs the House that the call is to be shared. Where members have shared a call in this way each is regarded as having spoken in the debate and cannot speak again.
Leave has been given for a member to complete the interrupted speech of another member who, because of illness, was not able to complete it herself.
The member completing the speech was not regarded as having spoken in the debate.
Speaking in the committee of the whole House
The criteria for the allocation of speeches in the House apply also to speeches in the committee of the whole House. But, in committee, members can speak more than once to the same question and debates are not subject to the overall restrictions in length that apply in the House.
Manner of speaking
Physical arrangements for speaking
Members are allocated individual seats in the Chamber. While they are expected to address the House from those allocated positions, there is no rule requiring this and members may speak from another seat within the seating allocated to their party that is unoccupied at the time
or even come to the Table for the purpose.
The Minister or member in charge of a bill in committee, for instance, always speaks from a position at the Table immediately on the chairperson’s right. Other members frequently speak from a position closer to the presiding officer’s chair than their own seat, especially in committee.
Members must stand to speak in debate. But the Speaker may permit a member to speak from a sitting position if that member cannot conveniently stand by reason of sickness or infirmity.
Forms of address
In debate a member addresses the Speaker, and the House only indirectly through the Speaker.
Members do not address each other directly. The origins of this practice are obscure, but it does, to some extent, assist in restraining quarrels or personal recriminations in the House by figuratively interposing the Speaker between members. Members may not address each other directly in the second person.
According to the rules of the House, references to “you” are taken to be directed at the Speaker and will be ruled out of order, for it is not in order to involve the Speaker in the debate.
It was formerly a rule that members could not refer to each other by their names but this rule was abolished when half of the House came to be elected from party lists and so had no electorates by which they could be referred.
Consequently, members can now refer to each other by name (or by electorate or position held if preferred). But this does not authorise total familiarity. A full name, title or position should be used, not just a member’s given or Christian name.
Nicknames are not permitted as a form of address,
nor may members assign a title to a member’s name.
Debate in the House is a discussion among the members of the House present in the Chamber.
Unlike in select committees, where non-members of the House take part in the proceedings, only members take part in debates. For this reason members may not address remarks to,
or refer to the presence of,
persons in the gallery nor address persons outside the House.
The latter include persons listening to the radio broadcast of parliamentary debates. Members must address the Chair, not the “listener”.
English and Māori
Members may speak in English or in Māori.
Most contributions to debate are made in English, but to an increasing extent Māori is being used both in the Chamber and in committees, especially at the Māori Affairs Committee. The use of Māori in the Chamber is not by any means new. The first speech in Māori was made (through an interpreter) in 1868
and many Māori members spoke in Māori in the nineteenth and early twentieth centuries. The practice then was for the member to give his own interpretation or for an interpreter authorised by the Speaker to interpret the speech standing alongside the member for this purpose. As Māori was not at that time an official language, no extra speaking time was allowed to the member for the time spent interpreting a speech.
Māori was given official recognition in the House in 1985 and members have the right to use either language and are not obliged to give an interpretation of their remarks.
However, as not all members have competence in Māori an interpretation of speeches in Māori is provided. In many cases the member speaking Māori will provide this himself or herself, being entitled to speak for the extra time that this entails.
In these circumstances, no second interpretation of the speech is given by the official interpreter.
Members who do give an interpretation of their speeches must be careful to do so accurately, otherwise they may be accused of deliberately misleading the House.
A member who gave an inaccurate interpretation of his remarks has cleared this up by way of a personal statement.
Otherwise an interpretation is given under the control of the Speaker. It can be given by anyone in whom the Speaker has confidence – even another member.
But for the purpose of providing official interpretations interpreters are engaged by the Office of the Clerk. The official interpretation is given from a position immediately to the left of the Speaker after the member has finished speaking or pauses in the course of a speech.
An interpretation is not a polished version of what a member has said. It will always be somewhat rough and ready.
Given the different origins of the Māori and English languages there will always be differences over how to render one language into the other.
The object of the interpretation is to enable members to have a reasonable, but not necessarily total, understanding of what is said. If the member speaking does not agree with the interpretation he or she is at liberty to give the member’s own interpretation or clear up a misunderstanding on a point of order, but that member cannot control the interpretation that is given by the official interpreter. Such control is exercised by the Speaker on behalf of the House. Members often pause at relatively short intervals to allow the interpreter to give an interpretation but that is entirely over to them. If they speak for longer periods without a pause, the interpretation takes on more of the form of a summary of what they have said.
It is not considered necessary to interpret from English into Māori.
The interpretation in the House is the oral rendering of words used in debate in Māori into English.
The interpreter is not a translator providing an English version of documents written in Māori that may be relevant to the debate.
Translation is a different process and takes place off the floor of the House when a speech given in Māori is translated into English for inclusion in Hansard.
The interpreter, as a member of the staff of the Office of the Clerk, cannot be brought into the debate or appealed to to give assurances to the House about the accuracy of translations of documents presented to the House by Ministers or other members
any more than could any other official be appealed to in the course of a debate about a matter in issue between members.
Only English and Māori have the status of official languages in the House, but other languages are used from time to time. This is particularly common in a member’s maiden speech when Polynesian, Chinese, Dutch and other languages with a particular cultural or familial significance to the new member may be used. In these circumstances the members concerned provide their own interpretation and translation of the language that they have spoken.
Special arrangements have been made to employ sign language interpreters in the Chamber when a debate of particular significance to the deaf and hearing-affected community has been held.
Occasionally, members employ foreign phrases in a speech. These may be French or Latin phrases that have not been fully absorbed into English. These are permitted in the course of debate and are treated in Hansard as terms of art, being published without any translation.
Contents of speeches
In this section the rules which govern what a member may say, rather than how the member may say it, are examined.
Subject to these rules, how members use the call that has been given to them is a matter for them. They have absolute freedom of speech in debate and must exercise their own judgment as to how they use it. For instance, there is no rule that members must observe privacy principles,
though in practice members will often take care not to reveal personal details where this is inappropriate.
The overriding principle as to what may be said is that all debate must be relevant to the question before the House.
Nevertheless, the particular rules detailed below – unparliamentary language, issues before the courts, and so on – are instances of material which is out of order despite the fact that it may be relevant and, therefore, on the face of it suitable for inclusion in a speech. In these cases, even though it is relevant, the particular reference is not permitted on other grounds of parliamentary policy.
What is relevant depends exclusively on the question before the House and whether the argument being advanced would make the House more likely or less likely to accede to it. In a few debates – notably the Address in Reply and Budget debates – the concept of what is relevant is virtually boundless. In these debates members may introduce almost anything without fear of being ruled irrelevant. With other debates the field is much narrower. At each stage of the passage of legislation, the concept of relevancy changes as the purpose of the House’s consideration of the legislation changes. The question of relevancy is further considered as each different type of debate is looked at elsewhere in this work.
If a member persists in advancing irrelevant arguments the Speaker may, after publicly warning the member, terminate the speech.
The Speaker may also terminate the speech of a member who persists in repeating arguments which, though relevant, have been advanced earlier in the member’s own speech or by other members in the debate.
This is known as “tedious repetition”. An argument becomes tediously repetitive only if the Speaker serves notice that its repetition will be regarded as being so. In the absence of such a warning from the Speaker, the fact that other members find a member’s speech tedious is immaterial.
Members are not entitled to anticipate discussion of general business or an order of the day until that business or order is properly reached.
In administering the rule against anticipating discussion, the Speaker must have regard to the likelihood of the business or order actually coming before the House for debate within a reasonable time.
If it is not likely to come on for debate in the near future, the Speaker may permit references to it. Applying this discretion, the Speaker has permitted references to a select committee report on an alleged Budget leak, the debate on which had been adjourned and set down for resumption on a future day, after the Prime Minister was reported as saying that he did not intend to provide government time for the debate to be resumed. The Speaker concluded from this statement that there was no likelihood that the House would debate the matter again within a reasonable time, if at all, and, therefore, permitted members to refer to it although it was technically anticipating discussion.
Members are permitted to use quotations to illustrate or support points that they wish to make in the course of their speeches. Formerly a restrictive view of quotations was taken. Members were expected to give their own views on the measure under debate and the quotation of outside comment on the matter under discussion was prohibited. This is no longer the practice. Quotations are permitted provided that they are relevant to the subject of debate and are themselves inherently in order. Quotations must be as free from unparliamentary language as a member’s own words;
indeed, effectively a member makes a quotation his or her own by incorporating it into the member’s speech. So no improper reflections on another member can be made by means of a quotation from a letter or a newspaper.
Members are under no obligation to disclose the source of a quotation used in debate
except when they quote from Hansard. In the latter case they must give the volume and page numbers from which they are quoting.
Similarly, members cannot be required to quote accurately or fully (although they must beware of deliberately misleading the House). Members naturally choose that portion of an article which best serves their argument and they are not obliged to read other portions which might not be so favourable, even in the face of the urgings of their opponents in the House.
Official documents quoted
If a Minister, in the course of a speech, quotes from an official document, any member can require the Minister to lay that document on the Table.
The Minister is then obliged to table the document unless it is of a confidential nature. (See Chapter 38.) There is no obligation on members who are not Ministers to table a document from which they have quoted.
References to the Sovereign or the Governor-General
Members must not use the names of the Sovereign or the Governor-General disrespectfully in debate or for the purpose of influencing the House in its deliberations.
This rule does not strictly apply to a Governor-General designate, such references being a question of taste. References to the Sovereign’s representatives in her other realms are not excluded from debate, so references to actions of the Governor-General of Australia at the time of that country’s constitutional crisis in 1975 did not contravene the rule.
References to proceedings of a committee
References to the confidential proceedings of a committee are prohibited until those proceedings are reported to the House.
Effectively, this (at least temporarily) prevents references to what takes place at a select committee during consideration and deliberation and during the hearing of private or secret evidence. (Committees of the whole House conduct all of their business in public.) But this rule does not prevent a member referring to a bill or other business just because it happens to be before a select committee. It is information given to the committee in confidence and discussions at the committee among the members themselves behind closed doors that may not be referred to. The committee’s public proceedings can be referred to if they are relevant to the matter before the House. Once the committee has reported, all of its proceedings (except secret evidence) can be referred to.
As well as the more technical rules already described, the House’s debates are regulated in respect of matters which might otherwise be regarded as suitable to be left to the taste or discretion of individual members. Expressions used in debate may be ruled to be “unparliamentary” and be required by the Speaker to be withdrawn. The rules against unparliamentary language are designed to prevent personal invective and insults, and while they do not totally eliminate such exchanges, they do restrain members and provide a framework within which members’ speeches can be judged and controlled. Members have absolute privilege in the law of defamation for words uttered by them in debate. No legal redress is possible to persons, whether other members or persons outside the House, who are defamed during a parliamentary debate, regardless of the motive of the member who made the statement. While a form of response is now possible, it behoves members to use this privilege of free speech responsibly, and one control mechanism which operates is the prohibition on the use of unparliamentary language. (See Chapter 39 for responses.)
Offensive or disorderly words
Members are not permitted to use any offensive words against the House.
In addition, the Speaker is required to intervene whenever any offensive or disorderly words are used in the Chamber, whether by the member speaking in the debate, or by another member by way of interjection or other comment.
In respect of comments which a member may make to a neighbour, it does not matter that it was not intended that the Chair (or another member, if another member objects and brings it to the Chair’s attention) should hear what was said. If it is heard, it is within the jurisdiction of the Speaker, and if it is offensive or disorderly it must be withdrawn.
What is offensive or disorderly? There are some specific types of references which the Standing Orders hold to be unparliamentary – personal reflections and imputations of improper motives. These might equally be regarded as being offensive or disorderly; indeed, it may be very difficult to determine under which precise provision of the Standing Orders an expression is being ruled out of order.
Whether a particular phrase is offensive or disorderly depends upon the context in which it is used, and an expression acceptable in one context may be unacceptable in another.
A list of expressions ruled out of order each year is printed in the index to Hansard, as is a list of those expressions which have been challenged but allowed by the Chair to stand. Most such expressions will be found to be references to other members or parties. These may have been ruled to be unparliamentary because they could lead to disorder in the House, or because they are offensive in themselves, or because they are personal reflections.
In determining whether an expression is disorderly or offensive, Speakers take account of the state of the House at the time it is uttered. The Chair does not like to be constantly intervening in a debate any more than a referee likes to be continually whistling up a football match. If the advantage rule can be applied to both pursuits, it will be. However, where there is a real chance that disorder will arise if a statement is allowed to pass, the Speaker will take action.
The Standing Orders specifically prohibit imputations of improper motives against a member, offensive references to a member’s private affairs and all personal reflections.
Imputations of improper motives cover allegations of any form of corruption. Members have a duty to expose anything in the nature of bribery or corruption on the part of other members, but they must not do this by making veiled suggestions in the course of debate.
Such allegations must be brought forward by giving notice of motion charging the member unequivocally with impropriety. Everything must be out in the open in the same way as must criticism of a judge, if such charges are to be bandied about in the House.
References to a member’s private affairs are not automatically out of order. They are debarred only if they are strongly undesirable, insulting or offensive.
However, in judging whether something is offensive, the Chair will be guided to some extent by the reactions of the member to whom the remark is directed.
If that member does not object to it, it will generally be allowed to pass. Often, of course, personal references may be irrelevant to the question before the House, but, if relevant, reference may be made to a member’s occupation or profession,
age or marital status,
provided this is not done in an insulting or injurious way. The Speaker generally prefers to discourage such references, however, as they tend to reduce the standard of debate, and repeated references could provoke retaliation and lead to disorder in the House.
It is a well-established rule that members should not question the conduct or character of another member’s spouse, partner or family member except where a member introduces his or her own spouse’s, partner’s or family member’s conduct into the debate.
But if a spouse, partner or family member holds a political, commercial or public position separate from the relationship to a member, they may be referred to in debate. In these circumstances members must distinguish between quoting the spouse, partner or family member because of a position they hold and quoting them in the capacity of their personal relationship to the member.
In each case in which a personal reflection is made the Speaker will rule it out of order if the member against whom it is directed objects. Otherwise, it would be ruled out of order only if it was offensive on the face of it.
An accusation of racism, for example, falls into this latter category and will invariably be ruled out of order if used to describe a member or party.
Accusations of lying
It is a clear personal reflection to accuse another member of lying or of attempting deliberately to mislead the House.
Accusing a member of lying (whether the accusation relates to a lie alleged to have been told inside or outside the House) is a mode of expression that has been consistently ruled out of order.
If an accusation that a member had deliberately misled the House was correct, the member would have committed a contempt, and a member who believes that another member has misled or tried to mislead the House should raise this as a matter of privilege. That a member must not accuse another of lying does not mean that the correctness of that other’s statements may not be questioned and it is in order to accuse a member of having misled the country.
But, while a member is at liberty to criticise another member, a member cannot (in debate) accuse another member of having made a statement (on any occasion) knowing it to be incorrect or untrue or impute a deliberate untruth to another member.
References to the absence of a member
It is a convention of the House that members do not refer to the absence of other members from the Chamber (whether at that time or on a previous occasion).
This is not an absolute rule and can be overridden if the fact of absence is of sufficient importance to warrant reference to it.
This can occur if there is something intrinsic to the absence that makes it necessary to refer to it. But this does not mean that any member has the right to override the convention as a matter of choice. It is for the Speaker to decide whether such a reference is justified. It is not a breach of the convention to refer to the fact that a member did not speak in a particular debate
or to urge a member to take part in the debate currently under way.
The convention also applies to references to the absence of members from a meeting of a select committee,
but a reference to the fact that a member was not a member of a particular committee and so did not attend its hearings is permissible.
References to parties
The examples discussed above have been mainly of unparliamentary expressions directed at individual members, but many unparliamentary expressions are directed at groups of members – the Government or parties. It was ruled many years ago that as the Government consists of members of Parliament, a term cannot be applied to the Government which cannot be applied to members individually.
The Government was the first group within the House to have this principle extended to it, for it was the first group to coalesce within the House, but the principle extends equally to other groups or parties. Thus, allegations of corruption on the part of the Government or a party and offensive terms applied to a party are just as disorderly as allegations against or an offensive term applied to an individual member.
Allegations must be brought forward, if at all, in a formal motion.
A type of allegation to which parties are particularly prone – although such an allegation against one member raises the same issues – is an allegation of outside domination by an influential group in the country such as farmers, trade unions or the brewing industry. In carrying out their parliamentary duties, members must be free to act in the best interests of the country as a whole, and suggestions of domination or direction from outside are unacceptable,
though, of course, members receive advice and are lobbied by sectional interests outside the House and, no doubt, take this into account in forming their opinions. A fine line has been drawn between suggestions that a party has been influenced in the policy it is pursuing by an outside body, which is in order, and a suggestion that it is being dictated to by that body, which is not in order.
The term “pressure” is right on this line; any stronger term than this is regarded as insulting to members of the party at which it is directed, and is not permitted.
References to persons outside the House
In general, there is nothing to prevent a member commenting in severe terms on the conduct of persons outside the House, though this may be done only if it is relevant to the debate before the House.
Indeed, it is the purpose of the absolute privilege of members to permit them to speak out freely where this is necessary in the public interest. Members have been exhorted to use this privilege responsibly with regard to persons who are unable to defend themselves in the Chamber or to vindicate their honour in a court of law, but largely this is left to the good sense of members themselves. However, if a reference to a person outside the House is regarded as so insulting by a section of the House that, were it to stand unchallenged, it might provoke disorder, that would be a ground for requiring it to be withdrawn.
Persons who claim to be adversely affected by a reference to them in the House may apply to the Speaker to have a response put before the House. (See Chapter 39.)
Withdrawal of unparliamentary language
If the Speaker considers an expression to be unparliamentary, the usual course of action is to direct the member to withdraw it. If the expression has been grossly insulting towards another member or if the member who has been ordered to withdraw is contumacious, the Speaker may also require that the member apologise to the House for the conduct. When ordered to withdraw a statement, a member must withdraw the expression without qualification or reservation.
If the member adds any words while withdrawing, the withdrawal is qualified and does not satisfy the Speaker’s requirement.
Similarly, if a member is required to apologise, unless required to apologise in a certain way (for example, to refer to the injured member), the apology must be made without qualification.
When the Speaker has ordered a member to withdraw certain words and this has been done to the Speaker’s satisfaction, those words are said to cease to exist and cannot be further alluded to by that member or by members speaking subsequently in the debate.
But because words have been withdrawn does not mean that they are expunged from the record. As they have actually been uttered they may be reported by the news media, for example. The words cease to exist for the purposes of debate in the House only, which continues with its business without further reference to them.
If the Speaker considers that a member’s conduct during a debate has been grossly disorderly and that the mere withdrawal and apology for an expression which has been used would not adequately reflect the gravity of the transgression, there are further disciplinary powers, such as ordering the member to leave the Chamber or naming the member, which may be invoked. (See Chapter 11.)
Matters concerning the administration of justice
The relationship between the House of Representatives and the judiciary is of the highest constitutional significance. It should be, and in general is, marked by mutual respect and restraint. Running through the concomitant practices of the judiciary and the legislature is the principle that what is under adjudication or discussion before one should not be discussed or adjudicated on by the other.
This does not mean that the same subject might not arise for resolution in a legal and in a political context. This may occur. But neither branch of government should thereby be led into reflecting on or criticising the actions of the other. They should respect their respective spheres.
On their part, the courts will not permit any challenge to be made to what is said or done within the House in performance of its legislative functions and protection of its established privileges.
Nor is it considered appropriate for courts to issue gratuitous criticisms of parliamentary proceedings.
On the House’s part, it has adopted a number of rules designed to maintain respect for the judiciary and to avoid members causing prejudice to any judicial proceedings that may be pending. Apart from these specific rules, members are required to exercise their privilege of free speech in Parliament responsibly and to respect the position of the judiciary in the judiciary’s sphere of action, just as they would expect the judiciary to respect the privileges of Parliament.
Unbecoming references to judges
Members are not permitted to use unbecoming words against any member of the judiciary.
This rule applies to the judge’s conduct in presiding in court or when heading a Royal Commission or a Commission of Inquiry.
A succession of Speakers have held that members must not reflect on or speak disrespectfully of a judge.
This might occur, for example, by linking a particular court with the Government of the day – a clear case of questioning its impartiality – and this is not allowed to pass without intervention from the Chair.
A distinction must be drawn between disagreement with, and criticism of, a judgment delivered by a court on the one hand, and allegations directed at the judge that he or she has been consciously unfair or unjust on the other.
The House is the proper forum in which to consider the implications of a legal decision, and criticism may be made of the effects of a finding. There may also be criticism of a court system.
This is not only allowed; it is the duty of members, if they consider the public weal requires amendments to the judicial system, to advocate such changes. It is incumbent on the Speaker and members, however, to uphold the dignity of the judiciary and not to attack judges themselves.
Having said that, it is still the case that in exceptional circumstances the House does have a high constitutional duty to perform that would involve the criticism of a judge. To preserve the independence of the judiciary it is provided by law that a judge of the High Court (which includes all judges of the Supreme Court and the Court of Appeal) can be removed from office only by the Sovereign or the Governor-General, acting on an address from the House of Representatives.
In the exceptional case of such an address being moved in the House (and none ever has), the conduct of the judge concerned would be a relevant object of criticism. But if specific charges of such a nature as would call into question a judge’s fitness to hold office are to be made in the House, they must be brought forward in a motion which can then be debated in the normal way.
Such charges cannot be made in the course of debate on another matter.
The Standing Orders prohibit reference in any debate to any matters awaiting or under adjudication in a court from the time the case has been set down for trial or otherwise brought before the court, if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case.
This rule is commonly referred to as the “sub judice rule” and it also applies to such references in any motion or in any question to a Minister.
The purpose of the rule has been described as being to safeguard the interests of fundamental justice,
so that, for example, popular prejudice against a defendant is not excited through parliamentary statements. In the case of judge only and appellate proceedings it is extremely doubtful if any prejudice could arise from discussion of a case, whether in the House or elsewhere.
But there is another, and perhaps in a practical sense, more important strand to the rule. This is the implicit acknowledgment by the legislature that the proper forum in which to resolve legal disputes is the courts and that the legislature, above all other institutions, should take extreme care not to undermine confidence in the judicial resolution of disputes by intruding its views in individual cases. After all, if it is not satisfied with the outcome of the courts’ resolution of a particular legal issue, Parliament always has the option of changing the law. In the sub judice rule the House applies more rigorous inhibitory standards to itself than is the case with news media reporting of judicial proceedings. This is not anomalous given the constitutional relationship between the House and the courts; the House and the news media are not in the same situation.
It is paralleled by the greater latitude that the news media has to criticise the House as compared to the courts.
Scope of the sub judice rule
The House’s sub judice rule takes effect in criminal cases from the moment a charge is made and in other cases from the time proceedings are initiated by filing the appropriate document in the registry or office of the court.
The restraint ceases when the verdict and sentence are announced or when judgment is given.
(It also ceases if the Attorney-General directs that summary proceedings be stayed, for in that circumstance there is no matter awaiting adjudication by a court.
) If notice of appeal is given, the restraint reapplies from the time of the notice until the appeal has been decided.
Preliminary inquiries by the police following a complaint being made to them cannot be excluded from comment if a legal action has not been instituted, but as soon as legal proceedings are commenced the rule applies.
Individual members cannot waive the application of the rule to legal proceedings in which they are involved.
The sub judice rule applies only to matters before a court of record. Originally, a court of record was a court which maintained a record of its own proceedings. But the essential distinction between a court of record and other courts not of record came to be that a court of record possessed an inherent power to punish for contempt. In New Zealand the legislation which creates a court usually deals expressly with the question of whether the court is to be a court of record.
The following courts having jurisdiction in New Zealand are declared to be courts of record—
•Court of Appeal
•Courts Martial Appeal Court
•Māori Appellate Court
•Māori Land Court
•District Courts (which include the Family Courts and Youth Courts)
Reference to matters which are the subject of inquiry by a Royal Commission or a Commission of Inquiry is not out of order, as it is not a reference to a matter before a court of record.
Similarly, an inquiry by an Ombudsman is not within the scope of the rule.
Administrative tribunals set up under legislation to adjudicate on statutory rights created by the legislation are not courts of law at all.
Their proceedings do not fall within the scope of the sub judice rule.
Application of the sub judice rule
The House has not adopted a rule which leaves itself completely unable to intervene whenever a matter goes before a court, and the right – indeed the public duty – of the House to intervene in certain circumstances is recognised by the Standing Orders. The House expressly reserves to itself the right to legislate on any matter.
Notwithstanding the sub judice rule, a bill dealing expressly with litigation before a court may be introduced and proceeded with. The House’s right to legislate on any matter is paramount.
Further, the sub judice rule is subject to the discretion of the Speaker.
This discretion is applied in the context of the purpose of the rule. The rule operates to ensure that nothing said in debate prejudices the decision of any court. It has been emphasised, for example, that it would be wrong to apply the sub judice rule to a generality of cases in such a way as to inhibit members in discussing penalties for offences. The House is not debarred from discussing possible or desirable penalties for drink or drug offences or any other type of offence merely because some cases involving such offences are currently before a court. To apply the Standing Order so generally would be to stultify debate in the House.
The law in general may be discussed, but not its application to a particular case that is before the court.
Where a Minister made a statement to the House of Commons about a finding that the Minister was in contempt of court,
the Speaker exercised his discretion to permit members to question the Minister on the statement, notwithstanding that notice of appeal against the finding had been lodged and the sub judice rule still applied.
The sub judice rule is applied differently too depending upon the stage at which the matter under adjudication has reached. Thus all references to a criminal case are invariably excluded up to the point at which the verdict is reached. However, where only sentence is outstanding, while the rule continues to apply, there may be a less exclusionary approach. References to the case that do not obviously impinge on sentencing (such as, for example, the performance of other agencies involved with the convicted person or the victim) may be permitted in the interval between verdict and sentence.
There has been an increasing recognition in New Zealand, and in other Commonwealth legislatures with a similar rule, that judges are not so faint-hearted that any obscure remarks made in Parliament would cause them immediately to alter the judgment they would otherwise deliver in the case before them. Such a view would be grossly insulting to the judiciary. There is, nevertheless, a greater danger that remarks made in the House and widely reported could influence the minds of jurors engaged on a case. In administering the rule, Speakers have tried to adopt a realistic and worldly attitude by not excluding all discussion on matters of public interest merely because a court is seised of the matter, while maintaining the underlying purpose of the rule to avoid any real danger of prejudice to persons before a court and to maintain the separation of powers between the legislature and the judicature.
Other references to judges and judicial proceedings
Other questions affecting the relationship of the House and the judiciary do arise from time to time outside the categories of unbecoming references and the sub judice rule.
A particular instance is where judicial proceedings on a matter have concluded but the court has made an order for the suppression of the name of a party involved. Members have absolute privilege in the House for statements they make and cannot be held liable outside the House for a breach of such an order. But freedom of speech in Parliament is not a licence to flout the laws of the country. Members have been enjoined by the Speaker to treat their privilege of freedom of speech with the utmost respect and to use it only in the public interest. If a court has made a suppression of names order, this must be presumed to have been made for a good reason and should be observed by members unless the public interest impels them to act otherwise.
Ultimately, a member abusing the privilege of free speech in Parliament could be punished by the House itself if the abuse was serious enough for the House to treat it as a contempt. Further, documents tabled in the House will not (unless ordered by the House to be published) be distributed by the House authorities in contravention of an order of the court.
Judges do appear before select committees from time to time to give evidence on matters with which they have a particular concern. In these circumstances there is no rule or convention which prevents members referring to the fact that a judge did appear before a committee.
Strictly speaking, a member is entitled to be heard in silence.
A speech can be interrupted only by a point of order or a matter of privilege.
However, in practice, other members do not always sit listening to the member speaking in mute respect; they interject comments or questions of their own into the debate. This has become a well-established custom of the House, but interjectors do not have the floor, and the type and frequency of their interjections must be kept within bounds.
As an interjection is an attempt to contribute material to the debate, it is subject to all the rules that have already been discussed for the contents of members’ speeches. An interjection must be relevant to the issue being debated. An irrelevant comment made by way of interjection is disorderly and does not justify a reply from the member who is speaking.
The reason for permitting interjections at all is to enable members to elicit further information or to test the arguments being used by the member speaking. Interjections do not allow a member who does not have the floor to address arguments for or against the measure under discussion. Members can do this when called on to speak in their own right.
The Speaker will, therefore, often intervene if a member interjecting is tending to monopolise the time of the member speaking by putting forward arguments adverse to that member’s views.
It has been said from the Chair that interjections must be “rare, reasonable and courteous” (although for “courteous”, “witty” is tending to be substituted as a desideratum). A continuous series of interjections or a running commentary on a member’s speech is out of order.
An interjection by way of contradiction is out of order,
as is a question to a member speaking to which that member takes exception.
Members must stop interjecting when called to order by the Chair.
They may interject only from a seat in the Chamber, and must not make interjections while standing or leaving their seats or while moving around the Chamber. It is also disorderly for a member to change seats in order to facilitate interjection – for example, by moving nearer to the microphone of the member speaking or to a position more noticeable or distracting to that member.
Members have seats of their own in the Chamber but they often occupy another seat temporarily to discuss something with a colleague or even to speak in the debate from a seat nearer the Speaker’s chair, and they may interject from any seat they happen to be sitting in, provided they did not move seats originally for that specific purpose. The occasional interjection from a member who is not sitting in his or her own seat may be passed off as being a subsidiary reason for sitting in that seat, but if the member embarks on a series of interjections the Speaker will be persuaded very soon that the member’s motive for occupying the seat is the desire to interject, and the member will be ordered to stop interjecting or return to his or her own seat.
Another method of interjecting is the practice of yielding or giving way. This is based on the House of Commons practice whereby the interjector seeks to rise during the course of another member’s speech with a question or comment relevant to a point made by that member. The member who has the floor may “give way” and resume his or her seat temporarily (or refuse to do so) so that the question can be asked or the comment made. The adoption of such a practice by members in the House of Representatives has been advocated occasionally.
If a member does yield to another, this can only be for the purpose of allowing the other to refer to matters raised by the member speaking. Yielding is a way of making an interjection, not a speech. It should only be for a brief period, after which the member with the call resumes speaking. Yielding is not a means of transferring the call or of developing a subject at length. If more than a reasonable time has been taken by the member who intervenes, the Speaker will interrupt and ask the original member to resume his or her speech.
The time taken up by the member who interjects in this way is counted as part of the time of the member who gave way.
Recording of interjections
It is the member who is speaking who effectively decides whether an interjection will be recorded for posterity, because interjections are not recorded in Hansard unless they are responded to by that member. For this reason the wittiest and most effective interjections may be lost to posterity because they leave their object speechless.
A member speaking is under some obligation not to provoke interjections. If a member directs a constant series of questions to a member or to members present in the Chamber, the member is inciting them to disorder and may be asked to desist by the Speaker.
Members often ask questions, whether rhetorical or not, in the course of their speeches and they are not obliged to give members opposite an opportunity to reply there and then. Those members can seek the call and answer the questions later in the debate.
However, there does come a point at which the employment of this debating tactic tends to lead to disorder and the Speaker feels obliged to intervene. A member speaking cannot be required by the Speaker to give time for an interjection in reply to questions asked in the course of a speech, but the member can be told by the Speaker to make the speech in a different way in future.
Occasionally members bring into the Chamber objects they wish to use to add a visual impact to their speeches. The pair of bloomers held up by Miss Mabel Howard to emphasise a point about the cost of ladies’ underwear is probably the most famous example.
Other members have introduced grocery items and charts. A member introducing a bill on drug misuse showed the House a stash can, a hookah pipe and other drug paraphernalia he wished to make illegal.
Members are permitted to use appropriate visual aids to illustrate points made in their speeches, provided that these do not inconvenience other members or obstruct the proceedings of the House.
The Speaker is the judge of whether such an object is appropriate and whether it is too inconvenient or obstructive. Members have been counselled not to trivialise Parliament by introducing inappropriate objects into the Chamber and the Speaker will refuse to permit an object to be used if, in the Speaker’s opinion, it would lower the esteem in which the institution is held.
In judging whether an aid is convenient, the Speaker will generally require that it be confined to the desk of the member speaking. It is not permissible for another member to stand next to the member speaking holding something up.
The size of the object to be used will also be a consideration. The Speaker will not permit a demonstration to be staged in the Chamber.
While members do not have to seek prior permission from the Speaker to use a visual aid, there are cases where the object will be visible on being brought into the Chamber before the member’s speech commences. In these circumstances the Speaker’s permission to bring the object into the Chamber in the first place must be obtained. This can be done privately.
Any visual aid may be displayed only while the member is speaking and must be removed from the Chamber at the end of the speech.
The Speaker will order the removal of more permanent visual displays; as when members pinned notices or pennants to their seats or to the sides of their correspondence trays and displayed them prominently over the course of a few days. The introduction into the Chamber of an object designed to make or illustrate a point in a member’s speech is acceptable when it is reasonably necessary for that purpose, but objects introduced for the purpose of making a silent comment on issues, or that remain in the Chamber for a period of time, are not acceptable.
Interruption of debate
There are a number of matters which may cause the House temporarily to lay aside a debate upon which it is engaged.
These matters do not necessarily permit the interruption of a member speaking. Most interruptions to a debate can only arise between speakers, not while a member is actually speaking.
Interjections, while in a sense interruptions to a member’s speech, are, if properly made, contributions to the debate rather than interruptions of it. However, a member’s speech or the debate is liable to be interrupted in other ways—
•the Speaker may be called upon to rule on a point of order
•a matter of privilege may arise relating to the conduct of strangers present
•the sitting may be suspended (at a regular time or for disorder)
•a message from the Governor-General may be read to the House (this will only occur between speakers)
•an unsworn member may take the oath or affirmation entitling the member to take a seat in the House (again only between speakers)
•a motion may be made to exclude the press and the public from the galleries (but the moving of such a motion may not interrupt a member speaking)
•a Minister may make a ministerial statement or a member may make a personal explanation or a maiden statement (also not so as to interrupt a member speaking).
When a debate is interrupted by one of these events, the interruption is temporary as far as that sitting is concerned. When the interruption is concluded, the debate immediately resumes at the point it had reached.
Adjournment of debate
The adjournment of a debate also suspends the debate for a period. Usually where a debate is adjourned it is not intended to be resumed again until a future sitting day.
The most common way in which a debate is adjourned is when it is still running at the time appointed for the adjournment of the House or for the House to go on to other business. At the time for the adjournment of the House, any debate in progress is adjourned and it is set down for resumption on the next sitting day.
Where the House has appointed a particular time for business to commence (which is not common) any debate in progress when that time is reached is automatically adjourned and set down for resumption on the next sitting day.
Motions for adjournment of debate
In addition to adjournment by the automatic operation of the rules of the House, a debate may be designedly adjourned, either to a later hour on the same day or to a future day, by a motion to that effect.
A motion for the adjournment of a debate is sometimes referred to as a dilatory motion, for it can be used to delay proceedings. However, its use in the House of Representatives as an instrument of prevarication has been severely curtailed owing to the fact that, if it is moved, the question on it is put forthwith and determined without amendment or debate.
A motion for the adjournment of a debate can be moved only by a member who is called to speak in the debate. The member must therefore have speaking rights. A member who has already spoken to the question cannot move the adjournment of the debate. A member proposing to move the adjournment must do so immediately on being called to speak. The member cannot speak to the question and then move the adjournment, nor can the member preface the adjournment motion with an explanation of why it is to be moved. In the latter case the member is treated as speaking to the question and cannot move the adjournment of the debate. If the motion for the adjournment is defeated, the member may continue the speech. If the member does not continue in these circumstances, the right to speak is lost.
Resumption of adjourned debate
A debate is resumed at the point it had reached when it was adjourned, whether that adjournment took place under the Standing Orders or on a motion.
The member who was speaking when the debate was interrupted or on whose motion a debate was adjourned has the right to speak first when the debate is resumed.
For this purpose, the member must seek the call when the debate is resumed, otherwise other members can be called to speak. If the member whose speech was interrupted does not exercise the right to speak first on the resumption of the debate, the speech is concluded.
The member who moved the debate’s adjournment is not obliged to exercise the right to speak first, however, and may speak later in the debate if he or she wishes. That member does not need to declare an intention to do this when the debate resumes; the right to do so applies automatically.
A member resuming the debate in these circumstances cannot again move its adjournment. The right to do that applies only when first being called to speak.