Advocate-General of the Cook Islands v Story [1980] CKHC 2 (13 February 1980)

IN THE HIGH COURT OF THE COOKS ISLANDS
HELD AT RAROTONGA
Plaint No. ....

BETWEEN

THE ADVOCATE-GENERAL OF THE COOK ISLANDS
Law Officer of the Crown, Rarotonga
FIRST PLAINTIFF

AND

THOMAS ROBERT ALEXANDER HARRIS DAVIS
Premier of the Cook Islands
SECOND PLAINTIFF

AND

MARGUERITE STORY
Speaker of the Legislative Assembly, Rarotonga
DEFENDANT

Counsel: Advocate-General and Temm Q.C for Plaintiff
K. Ryan for Defendants.

Date of Hearing: 12.10.79
Date of Judgment: 13.2.80

JUDGMENT OF SIR GAVEN DONNE C.J.

This is an action seeking a declaration under the Declaratory Judgments Act 1908 and a writ of mandamus directed against the defendant. The declaration sought is to define the position in law of the defendant as Speaker of the Legislative Assembly of the Cook Islands in relation to a certificate to be issued by the Speaker under Article 45(1) of the Constitution certifying to the High Commissioner, as a prerequisite to his assent to a Bill to which the Article applies, that the requirements of the Article have been satisfied. The writ of mandamus is to direct the defendant to sign such a certificate.

The defendant at the material time was Speaker of the Legislative Assembly having been elected by the Legislative Assembly to that office pursuant to Article 31 of the Constitution. She is not an elected member of the Assembly. In November 1978 there was presented to the Legislative Assembly by the second Plaintiff, the Premier of the Cook Islands, a Bill known as the Constitution Amendment (No. 8) Bill which sought to amend Article 32 of the Constitution by providing (inter alia) that on the passing of the Bill by two-thirds of the Members of the Assembly, the Speaker must resign. The Bill was read for the first time on the 29^th November 1978 and on the 5^th December 1978 was to come up for a Second Reading. This occurred and on the 26^th February 1979, on the usual motion that the report on the Bill be adopted, the motion was carried by the Assembly, 16 of the members voting in favour thereof and 6 against. The Bill then lay on the Table of the Assembly to comply with the Constitutional requirement that there be an interval of not less than 90 days between the date of the Third Reading and the date on which the preceding vote was taken. The Third Reading of the Bill was taken on the 7^th June 1979 and on a motion that the Bill be passed, the voting was 16 members being in favour and four against. There was an interval of 102 days between the day on which the final vote was taken and the date of the preceding vote. On the 8^th June 1979 the second plaintiff signed a request to the High Commissioner to give his assent to the Bill. The request contained a certificate to be signed by the defendant as Speaker certifying that the requirements of Article 41(1) had been satisfied. This was presented to her for her signature but she refused to sign and has persisted in her refusal with the result that these proceedings were taken.

At the hearing, I was advised that the application for the prerogative writ was not being proceeded with. No reason was given, but, it has become obvious since on the Monday following the hearing of this matter the defendant resigned her post as Speaker. Mr. Ryan made a formal appearance on her behalf but took no part therein and submitted no argument. In consequence I asked Counsel for the plaintiffs to submit in addition to the argument at the hearing, further argument based on any possible answer the defendant may have. This has been done and I am grateful for that assistance.

The Legislative Assembly has power to repeal or amend the Constitution but no Bill effecting repeal or amendment shall be deemed to have been passed unless the requirements of Article 41 have been complied with. Article 41 reads as follows:

"41. Power of Legislative Assembly to repeal or amend this Constitution - (1) Subject to the provisions of subclause (2) of this Article, no Bill repealing or amending or modifying or extending this Constitution or any provision thereof or making any provision inconsistent with any provision of this Constitution shall be deemed to have been passed by the Assembly, unless -

(a) At both the final vote thereon and the vote preceding that final vote it receives the affirmative votes of not less than two-thirds of the total membership (including vacancies) of the Legislative Assembly; and

(b) There is an interval of not less than 90 days between the date on which that final vote was taken and the date on which the preceding vote was taken:-

And no such Bill shall be presented to the High Commissioner for assent unless it is accompanied by a certificate under the hand of the Speaker to that effect.

(2) No Bill repealing or amending or modifying or extending any of the provisions of sections 2 to 6 of the Cook Islands Constitution Act 1964 or Article 2 of this Constitution or this Article or making any provision inconsistent with any of those provisions shall be submitted to the High Commissioner for his assent, unless -

(a) It has been passed by the Legislative Assembly in accordance with the provisions of subclause (1) of this Article; and

(b) It has been submitted to a poll, conducted in a manner prescribed by law, of the persons who are entitled to vote as electors at a general election of members of the Legislative Assembly; and

(c) It has been supported by not less than two-thirds of the valid votes cast in such a poll; and

(d) It is accomplished by a certificate under the hand of the Speaker to that effect."

The Bill in question being an amendment of Article 31 of the Constitution, Article 41(1) applies.

The certificate required of the Speaker under Article 41(1) informs the High Commissioner that the Bill has received the affirmative vote of not less than two-thirds of the total membership of the Legislative Assembly, and that there is an interval of not less than 90 days on which the final vote was taken and the date on which the preceding vote was taken. This certificate is evidence of the facts of which the Constitution requires the High Commissioner to be satisfied before such Bill is presented for assent.

At this stage, the statement of defence filed by the defendant should be considered. In brief, she contends that not only the provisions of Article 41(1) are to be complied with but also those of sub-article (2) and that as the amendment of the Constitution has not been enacted in accordance with this sub-article she cannot certify as required therein. This defence by the defendant, an experienced Speaker well versed in the legislation process and presumably "au fait" with the provisions of the Constitution is, I consider, frivolous since the wording of Article 41(2) is unequivocal and easy to understand. Article 41(2) applies only if it is desired either to repeal, amend, modify or extend the provisions of sections 2 to 6 of the Cook Islands Constitution Act 1964 or Articles 2 or 41 of the Constitution or to make any provision inconsistent with any of those provisions.

No reading of the Constitution Amendment (No. 8) Bill could justify a conclusion that it in any way affects or is concerned with the enactments as specified in Article 41(2) and that the sub-article applies. I conclude, therefore, that the defence which is the only one relied on by the defendant has no merit.

Nevertheless in order to answer the question posed, it is necessary to consider whether the defendant in circumstances when all the preconditions to the giving of a certificate under Article 41 have been fulfilled could justify in law her refusal to certify. Was she entitled to take the stand she did because her powers and privileges entitled her so to do? In considering these I turn firstly to the Constitution, Article 36(1) (2) and (3) of which provides:

"36. Privileges of Legislative Assembly and its members - (1) The validity of any proceedings in the Legislative Assembly or in any committee thereof shall not be questioned in any Court.

(2) No officer or member or Speaker of the Legislative 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.

(3) No member or Speaker of the Legislative Assembly and no person 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."

Secondly, the Legislative Assembly Powers and Privileges Act 1967 made under the authority of the Constitution contains the following relevant sections:

"30. Powers of Speaker to be supplementary - The powers of the Speaker conferred by this Act shall be supplementary to any powers conferred on him by the Constitution or by Standing Orders of the Legislative Assembly.

31. Court not to exercise jurisdiction over acts of Speaker or Officers - Neither the Speaker nor any officer of the Assembly shall be subject to the jurisdiction of any Court in respect of the exercise of any power conferred on or vested in him by or under this Act or the standing Orders of the Legislative Assembly."

Thirdly, there is Article IX of the Bill of Rights 1688 which forms part of the law of the Cooks Islands by virtue of section 615 of the Cook Islands Act 1915. This Article reads:

"The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament".

These are the only relevant provisions to be considered. It should be noted that while the Legislative Assembly Powers and Privileges Act 1967 contains a provision (section 3) which gives immunity to "members" of the Assembly, the defendant not being a member of the Assembly as defined in section 2, is not protected thereby.

The first point for determination is whether the act of the Speaker in issuing the certificate could constitute "a proceeding in parliament". If it is, it cannot be questioned in this Court - see Story v Cook Islands Broadcasting and Newspaper Corp. and ors, a decision of this Court delivered on the 4^th December 1979. Now, the task of certifying requires the performance of a duty which -

"(a) Need not be discharged in the Assembly or its precincts;

(b) Need not be discharged while the Assembly is sitting;

(c) Does not form part of the business of the Assembly as that business may be stated, for example, in an Order Paper;

(d) Must of necessity be unrelated to any business actually in course of transaction in the Assembly in the sense that a Bill which is eligible for a Speaker's certificate under Article 41 must have been finally dealt with by the Assembly before any question of a certificate can arise;

(e) Does not relate to any essential function of a member of the Assembly; and

(f) Does not relate to the internal proceedings or management of the Assembly."

Matters said or done in the course of the formal transaction of business of Parliament have been protected from judicial questioning since very early times. But as is pointed out in Erskine May, Parliamentary Practice (19^th Edn) at page 86:

"...it does not follow that everything that is said or done within the Chamber during the transaction of business forms part of proceedings in Parliament. Particular words or acts may be entirely unrelated to any business which is in course of transaction, or in a more general sense before the House as having been ordered to come before it in due course."

In Attorney-General of Ceylon v de Livera (1963) A.C. 103 the term "proceedings in Parliament" was considered. In that case the Privy Council was required to interpret the phrase "in his capacity as such (Member)" as those words appear in the Bribery Act 1954 (Ceylon). Lord Radcliffe at p. 120 said:

"What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a 'proceeding in Parliament'? This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words 'proceedings in parliament' is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Win & M.Sess.2.c.2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his 'real' or 'essential' function as a member? For, given the proper anxiety of the House to confine its own or its members' privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member's true function."

This concept of the "real" or "essential" function of a member being a determining factor in the scope of the phrase "proceedings in Parliament" is both useful and practical. It very properly extends the reach of the phrase beyond that which is done solely within the walls of the House. As Lord Radcliffe at p. 121 points out:

"The most, perhaps, that can be said is that, despite reluctance to treat a member's privilege as going beyond anything that is essential, it is generally recognized that it is impossible to regard his only proper functions as a member as being confined to what he does on the floor of the House itself. In particular, in connection with his approaches to or relations with Ministers, whether or not on behalf of one of his own constituents, it is recognized that his functions can include actions other than the mere putting down and asking of a Parliamentary question."

See also Roman Corporation Pty. Ltd v Hudson's Bay Oil and Gas Co. Ltd (1972) D.L.R. 292 Aylesworth J.A. pp 298, 299.

Thus, whether the act of the Speaker in certifying under Article 41 of the Constitution that the requirements of the Article have been satisfied is a Parliamentary function i.e. one which is necessary to the business of the Legislative Assembly. An instance of the act of a Speaker of Parliament in signing a document permitting the publication outside of Parliament of a libel being regarded as an essential parliamentary function and thus "a proceeding in Parliament" is the case of R v Williams (1687) 13 How St. Tr. 1369, Sir William Williams, Speaker of the House of Commons had by the command of the House signed an order authorizing the publication and sale of a treatise known as "Dangerfield's Narrative" which contained various libels on the Duke of York. Four years after its publication (the Duke of York then being James II) Williams and the author Dangerfield were prosecuted for the publication of the libels. Both were convicted, Williams being fined Stg. 8,000. It is generally agreed that the conviction of Speaker Williams was wrong in that "... the Speaker did not publish as an individual, nor under the pretence of their (the House's) action, but as a Speaker and by their direct command," (per Denman C.J. in Stockdale v Hansard (1839) 9 A & EL, at p. 125). He was carrying out an essential Parliamentary function.

In the instant case, while the act of the Speaker in certifying is related to the Parliamentary function of law making, that function has already been performed by the members of the Legislative Assembly expressing their will by passing the Bill. The Speaker in certifying under Article 41 is not participating in that process just as the High Commissioner in assenting to the Bill is not so participating. Her part in certifying does he not begin until the proposed amendment has been passed by the Assembly. Her certification is a duty imposed on her by statute, the Constitution for the purpose of showing that the relevant proceedings have been completed in proper form and according to the Constitutional requirements. It is a duty which is entirely separate from any Parliamentary function and therefore I am satisfied it can be questioned by this Court. In Comack v Cope (1974) 131 C.L.R 432, the High Court of Australia in considering the act of the Governor-General in convening a joint sitting of the...................................at p. 454:

"Thus there are two distinct answers to the submission made by the Attorney-General. First of all, in my opinion, the Governor-General in convening a joint sitting or, for that matter, in dissolving both Houses, is not participating in the parliamentary process of law-making in any relevant sense. His act of dissolving both Houses and his direction for the convening of a joint sitting is in each instance an executive act. It is an act of the Crown in pursuance of a statute, the Constitution, and within the cognizance of this Court. The Crown's sole part in the parliamentary process of law-making does not begin until the proposed law has been passed by both House or affirmed in a joint sitting and is presented for the Royal assent."

Clearly, the Speaker cannot claim privilege on the ground that her act of certifying was "a proceeding in parliament". She, in certifying, is not discharging her parliamentary function of Speaker. The act is not done by her as the Chief representative of the Legislative Assembly or its presiding officer. She is performing a constitutional duty. The certificate is in no sense a certificate of the Legislative Assembly. It is entirely and absolutely the creature of the Constitution. It is not voted upon by the Assembly, nor is it within the order or disposition of the Assembly. It is an instrument having no parliamentary character. The Constitution could equally well have selected the Chief Justice or the Clerk of the Assembly to perform the function. Merely because the choice alighted on the Speaker does not transform a clearly extra-parliamentary function into a proceeding of the Assembly.

I can find no privilege available to the defendant to justify her refusal to carry on this constitutional duty imposed upon her. The object of privilege is stated by Aylesworth J.A. in Roman Corporation v Hudson's Bay Oil and Gas Co. Ltd., (supra) at p. 299:

"The object of the privilege is, of course, not to further the selfish interests of the Member of Parliament but to protect his from harassment in and out of the House in his legitimate activities in carrying on the business of the House; consideration of the interest of the public in this regard overbears the usual solicitude in our law for the private individual."

This observance applies to privilege in relation to the Speaker of the Legislative Assembly. The defendant had no lawful grounds whatever for refusing to certify. Provided the requirement of Article 41(1) had been complied with, her duty was clear.

I, therefore, answer the question put to me:

(a) Is the Speaker required to sign the certificate specified under Article 41(1) of the Constitution certifying to the High Commissioner that the requirements of Article 41(1) have been satisfied.

ANSWER - yes

Since the defendant has resigned her post as Speaker, no decision on the application for the prerogative writ of mandamus is sought.

SIR GAVEN DONNE, K.B.E.
CHIEF JUSTICE

Solicitor for Plaintiff: Advocate-General, Rarotonga.
Solicitor for Defendant: Kevin Ryan, Auckland, New Zealand.