The Right Honourable Trevor Mallard, Speaker of the House of Representatives

By Nicholas Langrell-Read

I

The Speaker of the New Zealand House of Representatives (herein the House) holds an important constitutional office and performs crucial roles with regard to the functioning of the House. Two such roles are chairing meetings of and maintaining order in the House. Necessary for these roles is interpretation of the rules and traditions that govern the conduct of the House, thereby defending the rights and privileges of Members of Parliament (MPs). Despite being elected as an MP, according to the political will of the electorate, the Speaker must maintain nonpartisanship when chairing.

II

Nevertheless, some Speakers have not always upheld this duty of independence. Parliamentary reforms of the standing orders that authorise the Speaker have attempted to rebalance the powers of the Speaker against the House. However, such reform ultimately depends on the will of the House, which is commanded by the government of the day.

Questions have revived of late about the integrity of our present Speaker, the Rt Hon. Trevor Mallard. After a slate of scandals during his tenure, including alleging a former parliamentary staffer of being a rapist (from which ensued a defamation lawsuit costing taxpayers more than $330,000); uproar from opposition MPs claiming they had been silenced in debates; and inflaming tensions with occupants of Parliament grounds, blasting obnoxious music during the night and turning on sprinklers; the Speaker has again come under fire for trespassing politicians (including former Deputy Prime Minister Winston Peters) from Parliament grounds as a result of their presence at the occupation. The opposition may move for no confidence in the Speaker yet any such to eject him from office is mere political theatre, given the majority that his former party, Labour, holds in the House. It is pertinent to public faith in our institutions that the representative of the House, the Speaker, is perceived as impartial and fair when conducting his affairs.

However, even before the Speaker’s appointment to office, the process is subject to party politics. The election for the Speaker is the first matter for a new Parliament. Candidates may be nominated by another MP and all such candidates contest an open ballot. Thereafter, the Speaker-Elect is confirmed in office by the Governor General. In practice, usually the intended speaker is nominated by the government and accepted without contest. List MPs and government Ministers serve at the pleasure of the party leader and the Prime Minister, respectively, so anyone within the government, dissenting against its nomination risks retribution against their political careers. Fearing their superiors, these MPs are motivated to  vote at the instruction of their party, rather than by their own conscience.

III

Arguments for Reform

Hence, political agents, commentators and jurists alike call for reform of the electoral system. One such proposal is a change from open to secret ballot. This process would ensure the votes recorded by MPs for the speaker are by the conscience of the voter because of their being undisclosed to their peers in Parliament. This practice has been adopted by many of the common law nations and has been approved recently by commentators Graeme Edgeler, Simon Bridges and the Rt Hon. Trevor Mallard, himself. These arguments predominantly address the constitutional order of the legislature (Parliament) as against the executive (government). In Westminster systems like ours, the executive is constituted by members of the legislature (our Prime Minister and her cabinet also serve as MPs). Hence, our legislature is not so independent from the executive as it seems. The real function of the legislature is reduced to independent scrutiny of the activity of government (and their legislative agenda), through opposition. The government, seeking reelection in the next term, wants to maintain favourability with their constituents, so has incentive to avoid being held accountable. One way they can do this is to nominate a Speaker which will conduct the House in a partisan manner, banning aggressive opposition and limiting debate. 

Arguments against Reform

Conversely, there remains reason to retain the practice of Government nomination. It is argued that the modern electoral system is largely underpinned by the party vote. A significant minority of seats in the House are appointed by party vote alone, and often the polling of electorate MPs is majorly determined by their party affiliation. It is claimed that while MPs are there by virtue of their merit, the political will is really represented by their parties in Parliament. Thus, the election of the speaker ought to be conducted along party lines according to the will of the party itself as manifested by its nomination. Moreover, while the appointment is in practice by the Government, the constitutional theory protects the independence of the Speaker from gross abuses of power and it reflects the representative nature of the role according to the proper representation of the will of the people.

IV

The independence of the Speaker is crucial—both in political reality and by perception of the public—to the constitutional order of our state. Whether this is upheld has significant implications for the democracy at the cornerstone of our constitution. It may seem that the internal workings of the House have little effect on the political outcomes for the ordinary citizen. In some sense this is true: the government, holding the consent of the House, may effect whatever legislative agenda it pleases. However this misses the practical checks and balances that the House performs in scrutinising and communicating opposition to the public.

In whom should such powers of the Speaker be vested? What should the extent of these powers be? How can we manifest the values of independence, fairness and transparency in our legislative assembly? And would a secret ballot help resolve these questions while balancing democratic interests? Without a truly independent Speaker to protect these functions, our democracy may suffer.

Sources:

https://www.parliament.nz/en/visit-and-learn/how-parliament-works/office-of-the-speaker/role-history-of-the-speaker/role-election-of-the-speaker/.

https://www.parliament.nz/en/mps-and-electorates/electorate-profiles/

https://nzhistory.govt.nz/politics/house-of-representatives/speaker.

https://www.parliament.nz/en/visit-and-learn/how-parliament-works/fact-sheets/the-speaker-in-history/.

https://www.lawsociety.org.nz/news/lawtalk/issue-897/a-constitution-for-aotearoa-new-zealand/;

https://legislation.govt.nz/regulation/public/1983/0225/latest/whole.html

https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20220504_20220504_28