Niue Laws 1996-1997
156
IN THE COURT OF APPEAL OF
NIUE
HELD AT WELLINGTONEW ZEALAND
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BETWEEN:
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HUBERT NI
of Alofi, Niue,
Chief Electoral Officer
AND:
TERRY DONALD COE
opt">of Alofi, Niue,
Minister of Finance
Appellants
MICHAEL NAEA JACKSON
of Hakupu, Niue
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SANI ELIA LAKATANI
of Alofi, Niue
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AND:
of Hikutavake, Niue
Respondents
Before: Casey J A Presiding
Hillyer JA
Keith JA.
Counsel: Barton QC and A S
Epati for Appellants
J O Upton QC and S Langton for
Respondents
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Solicitors: Government
Solicitor, Alofi, Niue (for the appellants)
Hesketh Henry, Auckland, New
Zealand (for the respondents)
Hearing: 1 Decem995
Judgment: 23 January 1996.
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JUDGMENT O COURT
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The Proceedings
The appellants (the defendants
the Court below) appeal against a judgment of Quilliam J dm J declaring
invalid the action
of the first appellant, the Chief Electoral Officer,
informing the three respondents on 30 August 1995 that their seats in
the
Niue Assembly were vacated effective immediately. The reason given for that
action was that the three members of
the Assembly had �failed to attend
certain meetings of [a parliamentary] Committee without permission of
Cabinet in breach
of Section 9(e) of the Niue Assembly Ordinance 1966�.
Section 9(e) of the Ordinance
(read with the Niue Amendment Act 1974 s 2(2)(c) and (d))s follows:
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How vacancies created
- The seat of a member shall be declared to be vacant by the Chief Electoral
Officer by notice under his hand:
�
(e) If on three consecutive
sitting days he fails, without permission of the Cabinet of Ministers, to
attend in the Niue Assembly or any committee thereof.
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The Facts
The Niue Assembly has twenty members. At the relevant time it was evenly divided with ten members
supporting the the Government
and the other ten, members of the Niue Peoples
Party and including the three respondents, comprising the Opposition.
On 21 June 1995 the Miniof
Finance, the second appellant, presented to the Niue Assembly the Budget
Spe Speech for 1995/96.
He did not, however, introduce the Appropriation Bill.
That might well have been expected, and later steps proceeded on the
basis
that such a Bill had in fact been introduced. In the hearing before us
counsel were however agreed that no such
Bill had been introduced. In the
hearing below the appellants had submitted that the Bill had been introduced
while the
respondents had argued that it had not been.
In late June and in July a
series of notices were issued by the Speaker, the Clerkhe Assembly and
the Cthe Chairman of
the Public Expenditure Committee calling members of the
Committee to meetings of the Committee. Members were asked to bring
"the
Appropriation Bill 1995/96. (Draft Budget 1995/96)" to the first meetings
and the "Draft Budget 1995/96"
to the others. The day after the first
meetings were called the Speaker wrote to the members of the Committee as
follows:
The Speaker of the Assembly
would to inform you members that the meeting scheduled for Fridayriday 30
June, and the two
meetings for 3 and 5 July were called by the Minister of
Finance.
The three respondents did not
attend the meetings, in particular those held on 19, 2 21 July 1995. We
emp emphasise these
three meetings since they are noted in an attachment to the
letter which the Premier and his Cabinet colleagues wrote to the
Chief
Electoral Officer on 30 August recording a decision of Cabinet to request
the Chief Electoral Officer to declare
the seats of the three members vacant
effective immediately.
By a letated 20 July (but
that appears not to be an accurate date) the Chairman of the Publicublic
Expenditure Committee
had written to the three Assemblymen, referring to s
9(e) of the Niue Assembly Ordinance 1966, and noting their non - attendance
at meetings on � Wednesday 5 July to Friday 7 July 1995, ... Wednesday 12
July to Friday 14 July 1995 [and] ... Wednesday
19 July to Friday 21 [July]
1995�. Some time later Mr Young Vivian, the leader of the Niue Peoples
Party, spoke to the
Clerk about the procedural propriety of the meetings and
wrote to the Clerk a letter received on 1 August confirming the message
Mr
Vivian had � officially conveyed�. Among other things, Mr Vivian said that
advice had been given by the Speaker that
proper procedures had not been
followed. On 17 August, the Premier, referring to that letter, wrote to the
Speaker asking
for an opinion on the question whether there was:
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anything in the Standing s
to prevent the Select Committee from proceeding to g to meet and discuss
financial matters
of Government prior to the Appropriation Bill being
introduced to the Assembly?
(The Premier's letter is
contradictory on the matter of wr the Bill had been introduced; while
the question ason assumes
that it has not been, the letter also states that the
Bill was introduced on 21 June to comply with Standing Order 81: That
Standing Order requires the Estimates of Expenditure and the Appropriation
Bill to be introduced into the Assembly on
or before 15 June in each year as
indicated later in this judgment. As indicated later, failure to comply with
the Standing
Order may not, however, render the introduction of the Bill
invalid.)
The Premier did not wait for
the Speaker to respond to the questions he had asked. Rather, as already
noted, on 30 August
he transmitted to the Chief Electoral Officer the
decision of Cabinet requesting the Chief Electoral Officer to take action
under s 9 of the Niue Assembly Ordinance.
Later that day the Speaker did
rto the Premier's letter. In the reply the Speaker states thes that he is
pondering why
his opinion was sought when the decision of the Premier and
his Ministers "has been a foregone conclusion". His opinion,
addressed to
Members of the Assembly, concluded with these words:
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It is therefore submitted that
as the procedures as oed have not been followed, wed, that the calling of
meetings of the
Public Expenditure Committee to consider the Appropriation
Bill 1995, is not in accordance with the provisions of the Niue
Assembly
Standing Orders and the Niue Constitution Act 1974.
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The reasons which lead the
Speaker to that conclusion were, broadly speaking, as follows:
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the fact that no requestquest or
motion was put forward for the Assembly to agree to a suspension of
Standing Orders
to allow the Appropriation Bill (which the Speaker
considered had been introduced) to be referred to the Public Expenditure
Committee for consideration and action. [Standing Order 82, we might
interpolate, provides that following the first
reading of the Bill the
draft Estimates of Expenditure and Financial Statements are to be read;
the member in charge
of the Estimates is then to move the second reading
of the Bill and read the Financial Statement; after a second reading,
under Standing Order 83, the Bill stands committed to the Committee of the
whole Assembly to which the Estimates
shall be referred.]
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the fact that that Cabinet
Ministers had been involved in, interfered with or directed the Select
Committee: � Select
Committees appointed by the Niue Assembly are
responsible to the Assembly and not to the Cabinet of Ministers�; the
Speaker quoted article 3 of the Constitution under which the Members of
the Cabinet are collectively responsible to the
Assembly.
On 5 September the Speaker
asked that his report and ruling be tabled in Cabinet on that day,
along with his request to the
Cabinet of Ministers that
and;
2. The re - instatement be as
from date of revocation;
and;
3. That the notice of
revocation issued by the Chief Electoral Officer of Justice and Lands
Department be withdrawn.
The record does not include any
responom the Government to that request.
Already on 30 August counsel
for the ten opposition membad filed papers seeking a sg a stay of the action
taken earlier
that day. On 5 September further documents were filed by the
plaintiffs, and on 11 September the Government Solicitor filed
a Statement
of Defence and Submissions in Reply.
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The case was heard on 20
September and on 26 September Sir Peter Quilliam gave his judgment declaring
invalid the action
of the Chief Electoral Officer in declaring the seats
vacant.
Tgal Issues
The respondents contend that
their actions do not fall within the terms of s of the Niue Assembly
Ordinance. They
did not fail to attend the Public Expenditure Committee on
three consecutive sitting days: there was no business before the
Committee
on which it could meet. The appellants argue that there was such business
and that, in any event and as a prior
point, the Court is barred by the
Constitution from exercising jurisdiction in this case. It is convenient to
begin with
that issue of jurisdiction.
The Jurison of the Court
and the Privileges of the Assembly
The argument for the appellan began with article 37 of the Constitution. As Mr Bartonarton put it, this
argument was the
fundamental point of the Government's case. Article 37(2)
(as substituted by the Constitution Amendment (No. 1) Act 1992) provides as
follows:
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Except as provided in this
Constitution or by law, the High Court shall have all such jurisdiction ...
as may be necessary
to administer the law in force in Niue.
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The introry limit on the
jurisdiction of the Court is to be read with article 24(1) and (2), (2), the
provisions which,
it is said, bar judicial intervention. While the argument
emphasised those two provisions, it is convenient to set out the
whole of
article 24. That article was carried forward from earlier legislation
predating the adoption of the 1974 Constitution.
The whole article builds on
the brief terms of article 9 of the Bill of Rights 1688 which is, of course,
fundamental
in this area of the law and is important for the cases we
mention later.
Privileges of Niue Assembly
and its members
(1) The validityny
proceedings in the Niue Assembly or in any Committmmittee thereof, and the
validity of any certificate
duly given by the Speaker under Article 34 or
Article 35 of this Constitution shall not be questioned in any Court.
(2) Neither the Speaker nor any
member or officer of the Nihe Niue Assembly in whom powers are vested for the
regulation
of procedure or the conduct of business or the maintenance of
order shall in relation to the exercise by him of any of those
powers be
subject to the jurisdiction of any Court.
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(3) Neither the Speaker nor any
member of the Niue Assembly nor any person enti entitled to speak therein shall
be liable
to any proceedings in any Court in respect of anything said or any
vote given by him in the Assembly or in any Committee thereof.
(4) No person shall be liable
to any proceedings in anyt in respect of the publicablication by or under
the authority
of the Niue Assembly of any report, paper, vote or proceeding.
(5) Subject to this Article,
the privileges of the Niue Assembly and of the Committees thereof and the
privileges of members
and the Speaker of the Assembly and of the persons
entitled to speak therein may be determined by Act; and any such Act may,
subject to Article 31 of this Constitution, define offences relating to
breach of privilege or contempt of the Assembly,
and may make provision for
the trial and punishment of such offences by the High Court, but not
otherwise.
In terms of the two provisions
invokethe appellants, article 24(2) is not relevant since no acti action of
the Speaker,
a member or an officer of the Assembly is challenged by the
proceedings. Nor is that part of article 24(1) which refers to
the validity
of any certificate duly given by the Speaker (relative to the passage of
Bills). We are left with the following
from article 24(1):
The validity of any proceedings
in a Niue Assembly or in any Committee thereof ... shall not be questioned
in any Court.
<
The respondents' short answer
to this argument is tha Court proceedings do not qnot question the validity
of any proceedings
in the Niue Assembly or in any Committee of the Assembly.
The action questioned is that of the Chief Electoral Officer and,
it
appears, of the Premier and Cabinet which led to the Officer's letter
declaring the seats vacant. And, say the respondents,
there were in any
event no �proceedings in the ... [Public Expenditure] Committee� to
call into question: the Committee had no authority to hold the meetings
which the plaintiffs did not attend.
We are of course very sensitive
to the prges of the Assembly. They have a firm base in the history oory of
parliamentary
institutions, in principle and in their purpose. The Courts
must be very careful not to interfere with those privileges or
to question
the proceedings of the Assembly and its Committees. We would be surprised
for instance, notwithstanding the
requirement in article 29 of the
Constitution that the Assembly comply with Standing Orders, were a Court to
review the
passage of a Bill through its various stages in the Assembly
against the particular requirements of Standing Orders. But we
are not asked
to question any decision or action of the Assembly; rather it is the absence
of action by it that is critical
to the case made by the respondents. They
say that that absence of action meant that the Committee had no relevant
business
before it and accordingly that it could not meet.
Furthermore they are asserting
their rights to act as membershe Assembly, their responsiponsibilities to
their constituents,
and the rights of their constituents in all respects
under the Constitution and the electoral law. The rights they claim relate
not simply to the internal workings of the Assembly or its Constitution or
to actions taken by the Assembly to discipline
members on some internal
matter. Rather the rights they assert are rights under the general law of
Niue and rights, moreover,
of the highest importance in a democratic
society. Furthermore, the action they are challenging is an action taken by
an official of the executive government under the general law of Niue: that
action with these serious, public consequences
does not fall within the area
traditionally protected by parliamentary privilege.
The line between the areas of
parliamentaivilege and public right and responsibility is recognised ised in
the cases.
For instance the Supreme Court of Zimbabwe, in a judgment
delivered by Dumbutshena CJ with the concurrence of the other four
members
of the Court, held that it could not review the decision of the House of
Assembly to suspend Ian Smith for one
year. On the other hand, it could, and
did, order the recommencement of his salary and allowances. While the former
was
a matter within the privilege of the House, the latter penalty which
took away statutory entitlements was not available to
the House under the
Constitution and relevant legislation, Smith v Mutasa [1990] LRC
(Const) 87. Somewhat similarly in the United States Supreme Court, while
ruling that no proceedings could be brought against the Speaker
John
McCormack and other members of the House because of the Speech and Debate
Clause (the equivalent of Article 9 of
the Bill of Rights), reinstated Adam
Clayton Powell Jnr after the House of Representatives had voted to exclude
him and
to declare his seat vacant; in so voting, the House had moved
outside its area of exclusive authority, Powell v McCormack [1969] USSC 154; (1969)
395 US 486.
It is true of course that the
details of constitutions differ. There may for instance be more room for
Court review where
a Constitution prescribes in greater detail matters
relating to law making or membership. But the cases all recognise that
a
line must be drawn between those matters which are intramural and which must
be left to the judgment of the legislative
bodies and those which engage the
public law of the land and rights and duties arising under it.
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Does s 9 (e) of the Niue
Assembly Ordinance apply?
Our answer is No. The reasons
in brief are:
(1) that the actions which are
questioned are not actions of the Assembly or of a Committee of it but
rather of the Chief
Electoral Officer; and
(2) that there was no relevant
business before the Public Expenditure Committee anee and no meetings could
accordingly
be held; accordingly no proceedings of the Committee are being
questioned.
It also follows the second
point that the conditions of s 9(e) were not satisfied and that there wase was no
basis for
declaring the seats vacant.
The first point requires no
further discussion.
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The secan be dealt with in
short order. We have already noted that the Assembly took no steo steps to refer
the Budget,
the Estimates or any Appropriation Bill to the Public
Expenditure Committee. Could the Committee meet on the Budget
notwithstanding
that fact? We do not think so. A committee by its very
nature must have matters referred - or committed - to it. Otherwise
it
cannot act. The Assembly's Standing Order 97 is consistent with that:
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Appointment of Select
Committees: The
Assembly may from time to time appoint Select Committees consisting of any
members of the Assembly and may refer
to such Committees any matter for
consideration or enquiry and report.
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It is true that that Standing
Ordes not say that a Committee can consider a matter only if the
matter is referred to it, but no other source of power can be pointed to in
the Standing Orders or in the Constitution.
As well, as noted earlier,
Standing Orders 82 and 83 regulate the progress of the Budget documents,
they do not provide
for Select Committee consideration, and they were not
suspended by any Assembly decision to allow for such consideration. And
the
two most relevant authoritative texts on parliamentary procedure make it
clear that parliamentary committees have
no power of initiative of their
own. Rather the House must delegate authority to them. According to
Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of
Parliament (21st ed 1989) 618:
A Select Committee, li
Committee of the whole House, possesses no authority rity except that which it
derives by delegation
from the House by which it is appointed. (The New
Zealand Speaker quoted that passage, as it appeared in the 20th edition,
at
the outset of his ruling on the devaluation inquiry in 1984, AJHR 1984 - 85
I12 C 139.)
The Clerk of ew Zealand
House of Representatives, David McGee, Parliamentary Practice in New
ew
Zealand (2nd ed 1994) 211 says similarly that:
A Select Committee, being a
creature of the House, mrry out only such investigastigations or functions
which the House
has empowered it to carry out.
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It followt we need not go
on to rule on the other ground which Sir Peter Quilliam gave for makr making his
declaration
- the breach of article 30 of the Constitution about money
Bills, mentioned in the Speaker's opinion. The parties, we noted
earlier,
agreed before us that no Appropriation Bill had in fact been introduced, but
the record both of the relevant
Cabinet meeting and of the Assembly shows
the Premier's support for the Budget, and there is a question, in any event,
whether a Court would rule the breach of such a provision, at least to
invalidate legislation (e.g. McGee, �The Legislative
Process and the Courts�
in Joseph (ed) Essays on the Constitution (1985) 84, 86 referring to
a Canadian case, The King v Irwin [1926] Ex CR 127).
The appeal is dismissed. We
declare invalid the a of the Chief Electoral Offl Officer of 30 August 1995
in declaring vacant
the seats in the Niue Assembly of Michael Naea Jackson,
Sani Elia Lakatani and Opili Talafasi. Leave to apply further is reserved.
On costs theies were
agreed in principle that, as in the High Court, the actual and reasonable
le
costs of the respondents
should be met out of public funds.
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Casey JA Presiding
Hillyer JA
Keith JA
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