Electoral Matters Bill

The title debate is an opportunity to review the scope of this legislation. One cannot help but reflect on the fact that clause 6 in Part 1 is the source of governmental embarrassment. About a year ago, the Prime Minister was saying that it would all be fixed and that a mere technicality was being perfected. For some unexplained reason, the Government has changed its mind. I have yet to hear from any Government member why under this legislation—to be known as the Electoral Amendment Act 2004—the rules that effectively prevailed prior to Mr Duynhoven being in breach of the Electoral Act have been affirmed. Admittedly, there is a minor change, in that if a person already has a passport or a document issued by another Government, he or she can get it renewed or re-issued.

But I want to know why we are now in the odd situation of Parliament—I use that term collectively—having passed legislation exempting Mr Duynhoven from the 1993 Electoral Act, not carrying over that exemption into this legislation. That is a fair question, and one that, I believe, the public of New Zealand deserves an answer to. In particular, I would like to hear the Government say what caused it to change its mind. The matter is hardly referred to in the report, which simply recommends that the new section be clarified. It makes no reference whatsoever to its purpose in the first place.

Also, the report contains no reference whatsoever to that legislation having been induced by Mr Duynhoven’s breach of the law. I know that Mr Duynhoven took a call and gave a whole series of exculpatory statements, but the fact remains that he was in breach of the law, and this Government bailed him out by what has to be referred to as an affront to constitutionalism—by having a special piece of legislation. So one member of this Parliament was not actually elected by the people of New Zealand. One member of this Parliament is here because of partisan legislation. That is the constitutional affront.

There was another approach that could have been taken, and that was to hold a by-election. The Government refused to take that path, and I would not be at all surprised if Mr Duynhoven rues the day he himself did not make that choice. Now he has to wait until the general election to find out whether he has the trust of the people—to find out whether he is elected by the people instead of by partisan legislation of this Parliament. [Interruption] I say for the benefit of the Minister that that is the legal situation. Mr Duynhoven is here by virtue of legislation, not the will of the people.

The Minister ought to take a call, because today we are dealing with the Committee stage of the Electoral Matters Bill, which has as one of its central features the issue around Mr Duynhoven. This Parliament and the people of New Zealand deserve better than the Minister’s silence. It is reasonable, when issues of high constitutional moment are being dealt with, that the Government take at least one call to explain why it was legitimate to pass legislation to allow Mr Duynhoven’s breach of the Electoral Act to be perfected by legislation, and why, 2 years later, that kind of action will not be able to be carried on henceforth. I ask the Minister why the Government has made that choice. He has the opportunity to explain.

The Electoral Matters Bill is best broken into three major issues. The first issue, which was dealt with in the last part, related to broadcasting matters and amendments to the Broadcasting Act. Generally, there was widespread agreement throughout the Committee on that part. It was a non-controversial part, in the sense that the bulk of it was dealt with and agreed to by the Justice and Electoral Committee. A couple of amendments were offered by Murray Smith, but there was nothing that was going to rock the world.

However, it is worth spending a bit of time on the other two issues that have been raised in this debate. My colleague Dr Wayne Mapp raised the issue of Mr Harry Duynhoven. I do not intend to traverse the issues already covered by Dr Wayne Mapp. I offer a slightly different perspective on that argument, which is: who was Harry Duynhoven hiding? Who were the people behind poor old Harry Duynhoven—poor old Harry Duynhoven, the public fall guy for any number of Government MPs who did not have the wherewithal to put their hands up and say in the House: “I am in the same position.”?

Members can criticise Harry Duynhoven, and have done so at length, but another question has been avoided in this debate. Whilst the Hon Harry Duynhoven was pushed out the front, who was hiding behind him? Where is that person now? [Interruption] The member for the ACT party, Stephen Franks, says that even Harry Duynhoven does not know. I do not think that is right. I think Harry Duynhoven does know, and I think it drives him nuts. I think it drives him nuts not to be able to stand up and simply say: “I took the fall for these other people. I took the hits publicly. I could have gone to my constituency and easily won a by-election.” Nobody in this Chamber can seriously put a case for Harry Duynhoven not winning that by-election. But who was hiding behind him?

To some extent, I have a bit of sympathy for Mr Duynhoven. In my view, he was hung out to dry. That is not to say that what occurred was right. In fact, Dr Wayne Mapp has gone to some lengths to discuss why the processes around Mr Duynhoven’s particular case were deeply and constitutionally wrong. But that does not excuse those who got off scot-free. I remember sitting in this Chamber when the House was in urgency, and asking David Benson-Pope, who at the time was the Government senior whip: “Who else is there?” I sought leave for Mr Benson-Pope to tell us who the other culprits were. Every other whip in this Parliament stood at some time, as I recall, and said that they had checked and it was not one of theirs. We asked the chief Labour Party whip, who, at the time, was David Benson-Pope, to stand and make the same declaration, but he would not make it.

This bill is about letting those other people off the hook while Harry Duynhoven was sent out to take the hit for them. The other issue, which caused some controversy at the commencement of this debate, was that relating to powers around design, layout, and colour of hoardings. I finish by saying that there cannot be one rule for MPs and another rule for everybody else. If the law is wrong, we should amend the local government legislation and the Resource Management Act.

I hope that Mr Power gets another call, because I can see that he has a lot of explaining to do of the National Party’s position on the provisions of the bill we are debating, which essentially tell local authorities to get their sticky fingers off free speech during elections. But I go back to the other provision that he addressed very well, which is the reversal of the Duynhoven amendments.

Part 1 reasserts the importance of loyalty among members of Parliament. Most of us thought it was elementary that New Zealand voters are entitled to expect that when they elect members of this House, those members will owe allegiance to New Zealand, to the Queen in right of New Zealand, and to the people, without a conflict of interest. It was pretty straightforward, and it has been in our electoral law as long as anyone can remember, as well as being in the electoral law of other countries. Now this bill is reinstating it, with a minor qualification. It states that there can be a residual loyalty or association with the country of place of birth from which a person came, and that one may renew a passport issued by that country before one took office without being deemed to have signed up one’s loyalty to another country.

Do members recall the scorn that the Prime Minister placed on the Electoral Act’s requirement that people not swear allegiance to a foreign power? She called it an anachronism—an “antiquated technicality”, I think the words were.

That shameful episode, when the Speaker of this House failed to carry out a statutory duty and delayed declaring the vacancy to enable the Government to rush through the legislation that Mr Power has just described, probably hid a multitude of people who had signed up allegiance to other lands. I do not think there is anyone in Labour who would still be so blind as to have signed up to the Comintern, or to the Communist Party, as one might have expected not so many years ago, but undoubtedly there must have been more than poor Harry Duynhoven who had signed up allegiance to a foreign power.

I have no doubt that in the panic they were in, if he was alone, they would have let him swing at that time. There must have been others to cause them to do something as constitutionally offensive as changing the Electoral Act to get rid of a loyalty requirement, and now to reinstate it—because, funnily enough, it proved not to be an antiquated technicality. Funnily enough, when the Justice and Electoral Committee was looking at this provision, we were all of one mind that it was important that people not have divided loyalties, that it is significant when someone signs up to a foreign power, and that it could be relevant to the New Zealand voters that someone has a citizenship that gives them a bolt hole so that they could muck things up here and then disappear to go and live somewhere else because they do not really care.

It is perfectly open to New Zealand voters to elect a foreigner to this Parliament if they wish, as long as they have New Zealand nationality, but they need to know what they are doing. It is perfectly rational that the Electoral Act should say: “If you sign up to another power, then give the voters a chance to reconfirm your mandate or decide that they would rather have someone who had undivided loyalties.” So to reinstate this under the bland heading “Electoral Matters Bill” means it is a very sad day for something as boldfaced as this. I thought the Government would have been more imaginative. I thought it might have come up with some other changes to the citizenship requirement. For example, if this Government really wanted to suddenly assert loyalty, why did it not overhaul the dreadful provision that allows non-citizens to vote in New Zealand? In my opinion citizenship should be a privilege.

This bill, instead of simply reinstating the law before the Duynhoven amendment, with a minor modification for citizenship from one’s country of birth, should have dealt with the offensiveness I see when non-citizens can come here and vote for our Parliament without having any necessary allegiance to this country. They can preserve all their options, vote, and go back home again leaving a shambles behind them, or vote for benefits that they have never had any part in producing. I believe we do not take our citizenship strongly enough, and it is time to change that.

In considering the title, I must say that I am a little bit disappointed in the number of speeches that have come from National that have really relitigated the past in terms of Harry Duynhoven’s situation. I am also concerned at the attacks from National that I have perceived on Harry Duynhoven over this issue. I think he acted with integrity throughout the process. He was the unfortunate victim of a law that, perhaps, was not all that it ought to be.

The Justice and Electoral Committee did get the opportunity, however, through this, to readdress the issue as to what the qualification should be for membership in the House of Representatives. Really, in essence, what the select committee came up with was to say that there needed to have been some positive act while an MP and that it ought to have involved allegiance to a foreign power or State. That was the essence, really, of what we came to, and I think that is probably the right balance as far as that is concerned.

I want to address the fact that the title, the Electoral Matters Bill, really understates how minimal the bill is in terms of the alterations it makes. My concern is that the Government did not take the opportunity to make some other changes to the bill at the time, and only took a very minimalist approach when it looked at making alterations.

I draw the Committee’s attention to a couple of matters that have been in urgent need of amendment and that this bill could have, and should have, addressed. They are matters that relate back to recommendations in the select committee reports on the 1996 and 1999 general elections. I note that the select committee’s report on the inquiry into the 2002 election listed 20 matters that had arisen in previous reports that we felt needed attention. The committee then listed another 12 matters that we felt were additional recommendations that ought to be taken into account.

Obviously, some of those matters have been around for a long time without being addressed, and whilst the Minister has indicated that he will look at a thorough review, it is impractical for that to happen before the next election—it is impractical for it even to be looked at before the next election. Certainly, it will not be implemented before the next election. So we will be looking at at least another 3 years before some of those pretty essential matters are addressed.

The most important recommendation in the select committee’s report is recommendation No. 17, which stated that the Broadcasting Act should be amended to include a clear distinction between an election programme promoting a constituency candidate and an election programme promoting a political party. That was reinforced by new recommendation No. 6 in the report, which indicated that clarification be provided on whether a constituency candidate’s broadcasting may promote a party or its list, and whether a party’s broadcasting may promote a constituency candidate. That is a huge area of confusion, as I know from my position of having been involved in the last three elections, mainly from an official point of view as secretary of a political party. When we get to the situation of what a constituency candidate can advertise and what a party can advertise, there is a huge amount of uncertainty. I think that that could have reasonably been cleared up without too much effort and placed in the bill.

We face silly situations, such as whether a constituency candidate can even have the party logo on his or her advertising without falling foul of the provisions that require that separation. There is difficulty, particularly for radio broadcasters, as well as other people in authority, in determining whether what is being promoted by way of a programme is really something that should come out of party funding or something that should come out of the constituency candidate’s own funding. That desperately needs to be cleared up. Certainly, United Future’s point of view is that there should be flexibility so that the constituency candidate and party can nominate, to a large extent, where it will come from. In the MMP environment it is simply silly that a constituency candidate cannot even put a party logo on his or her advertising, which is the narrow interpretation of the provisions that has sometimes been taken. So that is one thing that could have been fixed. The other one that also directly involved me was recommendation 20. The select committee was looking at section 71A of the Electoral Act.

Clauses 1 and 2 agreed to.

The Committee divided the bill into the Electoral Amendment Bill and the Broadcasting Amendment Bill, pursuant to Supplementary Order Paper 308.

Bill reported with amendment.