Electoral (Integrity) Amendment Bill

One of the critical definitions in this bill, enabling a leader to dismiss a member of Parliament—

💬 Darroch Ball: That’s not true.

—is that they act—well, if the member who just interjected would simply take a call. Well, here’s a test for him: the leader of the Green Party says that it’s true. Twenty one academics say it is true. We have the Clerk of the House who says it is true. We have the Legislation Design and Advisory Committee which says it’s true. We have the youth wing of every main political party saying it’s true. So unless you are prepared to take a call and to argue that case, the Parliament can reasonably conclude that this bill provides the power for a leader of a party to dismiss an MP.

Here’s the key on this amendment. It says that a member of Parliament will be dismissed if they act in a way that has distorted proportionality. What the hell does that mean? What the heck does that mean? So if a member of Parliament puts a press release out and says that “Actually, I’ve got a slightly different view to the leader.”, does that mean they are acting in a way that distorts the proportionality of Parliament? If I phone the whips and say to our great whip “Hey, I’ve got a concern about that bill. I’m not sure I want to vote.”, is that acting in a way that distorts the proportionality of Parliament?

Why I’m worried about this is that in those awful authoritarian states that have laws of this sort, the House would be appalled to know under what circumstances members of Parliament have been dismissed. There have been examples in Zimbabwe where a member of Parliament accused Mr Mugabe of corruption, and he was sacked under a provision that said this—kicked out of the Parliament. Do we think that is just? Does the member of the Green Party think that is just? And then we look at a country like Pakistan. In Pakistan, we had a member of Parliament—you know what he did? He called a press conference without the permission of his leader, and he was dismissed. So I would like to know from the Minister in the chair, Andrew Little: would a member of Parliament who had a press conference against the directions of the leader—would that meet the definition of acting in a way that has distorted the proportionality of Parliament at last election?

Let’s make it practical: Marilyn Waring in 1984 had a different review to the National Party leader of the time on the issue of nuclear ships. She expressed it, and she said she was going to vote for a Labour bill banning nuclear ships. Would that that meet the definition of acting in a way that distorts the proportionality of Parliament? What about Jim Anderton, in 1989, when he stood up against Rogernomics—would that meet the definition of what this Government is wanting to do and to act in such a way that distorts the proportionality of Parliament?

What about—let’s take a more recent one. Let’s take the example of Tariana Turia on the foreshore and seabed. Would her expression of views of that sort—and I’d loved one of the Māori members of the Government to tell me. Would Tariana Turia expressing a view of opposition to the Government’s position in respect of the foreshore and seabed meet the legal test for being fired—that is, acting in a way that has distorted the proportionality of Parliament?

What members on this side of the House say is we should not pass sloppy laws in this area. When you’re talking about the rights of members of Parliament and what they can say and what they cannot say; what they can do and what they cannot do—“act”: that’s what this amendment’s about; that’s what this definition is about—we need to have certainty, and Parliament can have absolutely no certainty in the provision that exists there at the moment.

Now, the amendment does a very important thing for any constituency member in this Parliament that takes their role seriously. It says that in that definition of “acting in a way that has distorted the proportionality of Parliament”, it shall not include anything that they have said or done in their role as a constituency member of Parliament. Now, isn’t that a good amendment that will assert the freedoms of those of us that are privileged to represent particular communities and ensure that we can speak freely and we can act freely? I could give you many examples. I could give the example of my good friend the Rt Hon—now Sir—Bill English, who in this first term of Parliament took a view as a constituency MP on the issue of native forestry in Southland, and he took a different view to what National took at that time.

I move, That the question be now put.

For anybody listening to this, they might wonder how all this works. I saw the member on the other side of the House, Darroch Ball, laughing away as Dr Smith was outlining some very serious concerns about the provisions and workings of this bill. So I would simply ask Mr Ball to reflect upon how often he is able to express his own view inside the New Zealand First caucus at the present time.

I think that what happens when people enter Parliament in a party like that, that is notorious for turning over MPs, is that the ability for an individual to express some degree of personal thought is naturally curtailed, and we don’t need this legislation for its effect to be available to that party. I’ll ask this question: if it isn’t up to the leader of the party, or available to the leader of the party, to dismiss a member of Parliament, and Mr Ball wants to continually say “No, that’s not right because 75 percent of the caucus has to agree with the expulsion, effectively.”, then what would happen if Mr Peters decided to expel Mr Ball for a minor thing? Perhaps he had a slightly different view on something, like, for example, the defence policy that’s being exercised at the moment. Perhaps he was upset by the expense that the Ministry of Foreign Affairs and Trade were going to go to over the higher-quality champagne and the more well-formed cucumbers that make up their sandwiches for their various functions they hold, and Mr Peters decided, “Well, I’m not having that. You’re on your way, son.” Is 75 percent of the New Zealand First Party going to disagree with Mr Peters? Absolutely not.

So while I might use very trite examples for what might cause a conflict, if it was something bigger—

💬 Hon Dr Nick Smith: Two-thirds, not 75 percent.

What is it? It’s not 75 percent?

💬 Hon Dr Nick Smith: No, it’s only two-thirds.

Oh, it’s only two-thirds. Well, it’s still a fair number. And it makes the point that even if it was something big, and Mr Ball—who was sent to this Parliament and sits here as a free, unencumbered individual under the Westminster system—decides to speak out against it, and the leader says, “Not having this. Not putting up with this.” Then it’s quite clear that it’s either Mr Ball or Mr Peters. There’s no choice. So whether it’s 60 percent, 66 percent, or 75 percent, it doesn’t matter. It’s going to be a choice between the offending or offensive party—who might just be speaking out for their constituents—and the view of the leader. So any suggestion that this bill does not confer extraordinary power over the democratic operation of this country on to party leaders is a complete misnomer.

I’m sad that Mr Ball continues to sit over there laughing, although I suspect it’s a nervous laughter for fear that the constant reference to his name in this House might get him a recognition close to that of Winston Peters, which would be equally fatal, I have to say.

There is an amendment in front of the Parliament at the moment asking for some definition about what distortion of proportionality means. Well, I have to refer back to the breakup of The Alliance in 2001-2002. That was a party that shattered. It ended up with Laila Harré being the nominal leader of The Alliance, and the constituent parties—the New Labour Party, the Green Party, the Liberal Party, and the Democratic Party—all splintering off in their own direction. Well, under this provision, that couldn’t happen, if we accept that the distortion of Parliament can occur through these sorts of events.

The reality is that the Green Party would not sit here today as a strong, individual party in this Parliament if they had not been able to come together in The Alliance and then separate themselves out from that at a point. Now, while they didn’t abandon The Alliance, technically that’s exactly what they did. They used the vehicle of The Alliance—[Time expired]

Thank you, Madam Chair. Look, I just want to carry on from the Hon Gerry Brownlee’s comments. Yeah, there is an element of fun around it, but this is actually very, very serious. This bill totally, I believe, brings into question the value of having list MPs in this Parliament at all. I’m hoping that the Minister in the chair, Andrew Little—he did this yesterday, and I’m hoping that he’ll do it again today—will stand and will take calls and will address the important issues that are being raised today.

The reason why I say “What value will a list MP bring to this Parliament; what real contribution will they be able to make; what independent thinking will they be able to apply to this Parliament?”—the reason why I raise this—is simply this, and it comes back to the point that the Hon Gerry Brownlee made, and he used Darroch Ball as an example.

If Darroch Ball felt very strongly about a policy that his leader wanted to support and he didn’t, and he wanted to make an argument, then he’s going to have to make his argument so compelling, or be so compelling in the way that he delivers that argument, that it’s going to put him in a position where, if the Rt Hon Winston Peters decides “No, we’re going in this direction.” and Darroch Ball says “Well, I don’t agree with this and I’m going to take a position on it”—which happens all the time, from my experience; certainly, inside our party, people are very free to get up and make their case and argue their position. The Rt Hon Winston Peters decides “Nah, he’s gone.” So you tell me—

💬 Darroch Ball: So why wouldn’t you be gone in your party?

You tell me. Who’s got—

CHAIRPERSON (Hon Anne Tolley): No, I won’t tell you.

Sorry, repeat.

💬 Darroch Ball: Why wouldn’t you be gone in your party?

CHAIRPERSON (Hon Anne Tolley): I won’t tell you, all right?

Yeah. Sorry, Madam Chair. Mr Darroch Ball is barracking across the House. I’d like to respond to his question, but I can’t hear it, Madam Chair.

CHAIRPERSON (Hon Anne Tolley): Can I just say that the purpose of the committee of the whole House is a much more informal environment where people can have the opportunity to take four five-minute calls and have a discourse. Having that through interjection is not helpful to the order of the House. So if the member continues the call—and that member is free to stand up and make his point in the discussion.

💬 Hon Tim Macindoe: I raise a point of order, Madam Chairperson. I do apologise for interrupting my good colleague Mark Mitchell, but I am very concerned that throughout the whole of that ruling, his time was counting down. I appreciate that this is probably at the discretion of the Chair, but I wonder whether you were aware of that fact, because it is only a five-minute call, and much of that time has been elapsed, effectively, dealing with Mr Ball’s interjections.

CHAIRPERSON (Hon Anne Tolley): It’s a valid point of order, and I hear it, and I have taken it into account.

Again, I just invite the member Darroch Ball to stand and take a call and outline for us, very clearly, the points that he’s trying to make. We will listen very carefully. We’ll record them, we’ll write them down, and then we’ll take more calls and we will address them. We’ll address those points. So I’d welcome Darroch Ball, instead of barracking from across the House, to stand up—it’s very easy—and take a five minute call, take a 10-minute call, and lay out for us very clearly why you think this bill is so important, why you believe in it so strongly, and allow us to get up and respond to those points. I would invite him to do that, and it will be very interesting to see whether or not, in the course of this debate, he actually does do that.

So, coming back to my original point, the reality is this—this is the reality. There is not one member of the New Zealand First caucus that would not back their leader—the Rt Hon Winston Peters—in a move by him to expel Darroch Ball from this Parliament if he chose to do it. Now, if Darroch Ball wants to stand up and he wants to make an argument, and he wants to explain to this House why that wouldn’t happen, then I’d invite him to do that. But we all know—everyone knows in this House—that if the Rt Hon Winston Peters decides to expel Darroch Ball from this Parliament, he’s gone.

He was voted in on the party list, and you can make the argument that when the party list is put out and the people of New Zealand look at the list, some of the votes that are attracted to the party are because of the strength of the list that the party actually puts out there. So you could make an argument, actually, even for a list MP that is ranked on the party list, that there could be some support that is actually behind Darroch Ball. There could be some New Zealand First members that have actually voted for him, that have supported him, that have supported the party because of him. The reality of it is their voice doesn’t matter with this bill—he’s gone. Darroch Ball is gone. He’s expelled from this Parliament. He’s got no recourse; he is gone.

I just want to come back to another point that the Hon Dr Nick Smith made: “acted in a way that has distorted,”. [Members seek call] Madam Chair?

CHAIRPERSON (Hon Anne Tolley): I’m allowing the member to continue.

Thank you, Madam Chair. I would ask the Minister to please take a call and stand and define for us exactly what he means, or what this bill means, or what this bill is trying to tell us as a Parliament—“acted in a way that has distorted”. Look, I find it very interesting that during this debate I’ve put up three very clear examples to the Minister in the chair around distorted proportionality.

Thank you, Madam Chair. I wish to speak to the Supplementary Order Paper (SOP) in my name—No. 67 for anyone following along—relating to the requirement, as it will be if this SOP is passed, for the next available list candidate—

CHAIRPERSON (Hon Anne Tolley): Well, I’m sorry, we are discussing proportionality distortion. We grouped—there are a number of amendments discussing the distortion of proportionality, clause 3.

Yes, beg your pardon, I understand. I was getting to it rather slowly but, in fact, I’ll speed up my deliberations on that.

💬 Hon Tim Macindoe: I raise a point of order, Madam Chairperson. I apologise now to my colleague Chris Penk. I ask for you to explain what has just occurred. About two minutes ago, you gave a second call to the Hon Mark Mitchell—

CHAIRPERSON (Hon Anne Tolley): I hope you’re not questioning my—

💬 Hon Tim Macindoe: No, Madam Chair, I wish to point out that I looked at the clock at that point and at no stage when Mr Mitchell began his second call did the clock start to count down. Now, clearly we have a problem—

CHAIRPERSON (Hon Anne Tolley): No look, I’m sorry, but as the Chair, I have a clock here that I watched and I deliberately didn’t curtail the member’s speech when the clock turned to zero, and I gave him extra time. He made his point. Unfortunately for him, he only just got to clause 3A in that extra time, so I hope you’re not disputing my call.

💬 Hon Tim Macindoe: No, Madam Chair, not at all.

CHAIRPERSON (Hon Anne Tolley): It wasn’t a second call.

💬 Hon Tim Macindoe: I absolutely accept the point you’re making. My concern is simply the fact that the clock—

CHAIRPERSON (Hon Anne Tolley): Would you actually make your point of order.

💬 Hon Tim Macindoe: Well, Madam Chair, with respect I thought I was. My point is that while I understand that you are looking at a clock, the members in the Chamber are looking at a clock that we see across the Chamber to guide us in the times that are available to us, and the clock wasn’t working. That was my point.

CHAIRPERSON (Hon Anne Tolley): I didn’t stop the member from speaking. I allowed the member to continue and then pressed the bell to curtail his speech. So if you were confused, I apologise. However, it doesn’t mean that people don’t take the call when the bell rings at the end of the five minutes, and it doesn’t mean that members don’t speak to clause 3A that is before the committee.

💬 Hon Tim Macindoe: Thank you, but that wasn’t obvious to us over here.

Madam Chair.

CHAIRPERSON (Hon Anne Tolley): Chris Penk has the call and we’re starting the clock.

Thank you, Madam Chair. Resuming the call, if I may at this time—and I choose my words carefully in that regard. Speaking to the point about the distortion of proportionality—and I distorted my own remarks, I suppose, by leaping ahead to a related aspect, but I won’t get into that for now, but rather reflect on the meaning of distortion. Distortion might be—in this context, specifically in relation to the section that we are discussing—either relating to a numerical distortion of the number of members of Parliament or, indeed, a distortion of the intention of the electors at the election, and it’s the distinction between those two things that I’d like to focus on.

Taking the first of them first, a numerical distortion will take place such that the proportionality of the votes in the House will be changed by this bill specifically because the number of MPs who represent positions that they took—each individually before the election and campaigned on that basis and gained a mandate on that basis—will be distorted because the number of votes that might be expected to be given for any legislative proposal within this House will be distorted because we will not have an accurate numerical representation of the true state of affairs.

Similarly, we’ll have a distortion along numerical lines if the number of MPs in the House is, in fact, distorted by being reduced by one in the situation whereby a member of Parliament is expelled from this House under the provisions of this bill. Until such time as that person is replaced, whether because of a by-election or some intervening delay for other reasons, there will be a distortion along those lines such that the members of Parliament who remain will be numbered according to the party vote or candidate vote—electorate vote as the case may be. But the total that they will make up is 119, and you do not need a degree in higher mathematics, Madam Chair, or anyone else listening to this debate, to understand that proportionality will be crucially affected by the numbers that are used to make up members of Parliament, and, as I point out, for very practical reasons, that could be 119 rather than 120, or perhaps in the situation of an overhang that existed for entirely separate reasons, we might have 120 MPs rather than 121.

But, either way, we would have a situation of a distorted proportionality along numerical terms as an unintended consequence of this bill, and that is why the distortion of proportionality—as well as being quite hard for me to pronounce—is also quite hard for me to understand. I wonder if the Minister can make some comment as to whether that was his intention, or if not his intention, that he at least understands and acknowledges the point I’m making in that regard and whether he will be prepared to contemplate any proposals that might be made for changes along those lines. So those are my thoughts on the subject of proportionality distortion from a numerical perspective.

From a qualitative perspective, rather than quantitative—perhaps I should have made that distinction; it would have been clearer—I would like to say the following. First, the proportionality will be distorted in the sense that the result of an election campaign is a collection of members of Parliament—the collective noun of which is of course a parliament—who have expressed support or otherwise, or perhaps expressed that they will be available to be persuaded one way or the other on any given matter that comes before the House. And so the quality, that is to say the nature of the House as a collective made up of all those individuals, will be fundamentally altered by this bill because the distortion that will take place will come about because of those positions that have been made and taken by individual MPs—yes, representing their respective parties, but also acknowledging that it’s not beyond the realms of possibility, certainly it’s constitutionally possible, that a person comes into this House as a member of Parliament who stood as an independent. Certainly, in the general meaning of that phrase—albeit that he or she might nominally represent a party that does not have typical party structures, and so forth.

Thank you, Madam Chair. It is a pleasure to be back debating the Electoral (Integrity) Amendment Bill. I do just want to correct the last member who spoke on one point—and that is, the collective noun “parliament” doesn’t apply to parliamentarians; it applies to owls. It is a parliament of owls.

I do want to assist members opposite because it is clear that there is some difficulty in reading the legislation, and so the debate we’re having at the moment is about distortion of—members opposite have referred to the issue of distortion. Of course that is not the end of the phrase that is used in the bill. Clause 55D(a) of the bill refers to members who have “… acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation”. The distortion does not stand on its own. So for Mr Penk, who is concerned about distortion and talks about distortion of intention, there is nothing in the bill that refers to a distortion of intention to the extent that an intention can be distorted. But certainly the proportionality of representation can be distorted.

The Hon Nick Smith asked a somewhat absurd question: could somebody who holds a press conference meet the definition of distorted proportionality of representation? Now, it is true that much of what Nick Smith says nowadays has to be taken with a grain of salt. So for the last two days, in questions and in statements in this Chamber, he has stated that there is a joint media release from Young Labour and the Young Nationals and what have you—there is no such joint statement. Here is the thing that he is referring to—it is the political page of Salient, the student magazine for Victoria University. No joint statement—something totally made up by the Hon Nick Smith. Now, at some point somebody in the National Party caucus is going to have to pull Nick Smith aside and say, “Nick, it is important to be factually accurate.” But that is not a joint statement. I am very pleased to say that VicLabour goes on to say how important this coalition Government is.

When we ask the question about distortion of proportionality, we have to go no further than the decision of the Supreme Court in the Awatere Huata case, where they said the resignation of a member of Parliament from their party is enough to constitute distortion of proportionality of representation. So the other case, or the example that the Hon Nick Smith brought up of now Dame Tariana Turia leaving—she resigned from the party and resigned from Parliament, precisely because she said, “My mandate from my constituency does not allow me to support what the party I’m part of, now in Government, does, and I will go back and test my mandate.” It was the honourable thing to do. And she was proved to be right. She was standing up for what her constituents in her seat of Te Tai Hauāuru believed in and required her to stand up for.

💬 Hon Gerry Brownlee: She had a seat. What about a list member? If that member resigned tomorrow, he’s gone.

Now we come to—I think members need to control their anger—a very important point, which is that there is a difference between constituency MPs and list MPs. For the purposes of this House, every MP is equal. Every MP enjoys the same privileges of this House, but not every MP comes here through the same channel, so that is a big difference. The real point that the Hon Gerry Brownlee made, however, in his contribution was to ask whether if a New Zealand First MP spoke out against a policy, would that constitute distortion? No, because the words of the bill are very clear. The distortion has to relate to proportionality of representation of the Parliament. Speaking out of turn does not distort proportionality of representation of Parliament. The Supreme Court has made that very clear.

Then we come to the example about the splitting of The Alliance. Well, actually, in the splitting of The Alliance, no one actually left their party. They might have spoken at odds in the gilded halls of The Alliance offices at the time, but no one caused a distortion of representation. So all those issues are dealt with.

Mr Mitchell, in his contribution and indeed his previous contributions, has raised a number of issues, all of which I have responded to. It would help if he raised a new issue for me to respond to. I’m not going to respond to the same issues several times over. But, again, he refers to the words “acted in a way that has distorted”, but he does not complete the phrase, which is “the proportionality of … representation in Parliament …”. All those issues are covered off. The very detailed examination that the Justice Committee gave the bill covered all that off, and it’s been covered off again today.

I’d like to raise some of the issues that—the Minister in the chair, Andrew Little, says he’s answered them all. Well, the question that I have is, if we’re talking about acting in a way that has distorted, or is likely to continue to distort, the proportionality of political party representation—I think what the issue is, is is there an expectation of iron discipline within parties? That seems to be the underlying theme of this, as if to say that we now expect that if you’re elected as a member of the National Party or the Labour Party or the Green Party, somehow there is an expectation that you must vote always with them, and there is iron discipline imposed upon those parties. The question is: if a member was to vote against that party for a particular issue, would that be distorting the proportionality of political party representation by doing that?

That is a serious issue that we have to wrestle with as a country, as if to say—because there’s been many examples through history where individual members of Parliament have crossed the floor on issues. If we looked at the issues today, if you asked what would happen if one of the Greens members, for example, stood by their conscience and decided not to support this bill and crossed the floor. Would that be distorting the political party representation of Parliament by doing that? There is an argument that, looking at this bill, the answer would be yes. So, somehow, without really debating the broader issue, we are now sort of saying that MPs are automatons who, when they are elected—the only thing that we’re doing in a general election is deciding on parties, and the MPs are irrelevant; they just have to vote like robots for that party in iron discipline at all times, and if they don’t, they risk being chucked out because, according to this clause, they will be distorting the proportionality of political parties.

There are many other examples. You might say that if a member of the Labour Party decided that they didn’t support the anti-immigrant stance, for example, and voted against that—would we be saying that they would be distorting the proportionality of Parliament? So we’re left then with the conclusion that somehow this country has moved to a state where the only thing that matters is the great clunking fist of the party, and that is the Holy Grail of everything that the parliamentary system stands for, and anybody crossing the floor or disagreeing with their party in a major way, it seems to me, is exposed by this bill to expulsion, because they would distort the proportionality of the political party.

I think it raises a broader question: our general elections are not simply about electing parties, because we have two votes—we have a party vote and we have an electorate vote. So there are two elements to the election going on, where we’re electing parties and we’re also electing individuals, particularly in constituencies. The Minister said every MP is equal, but you can only draw the conclusion that, like in Animal Farm, some MPs are more equal than others. I look across the Chamber at that Minister and it worries me—me, as a list MP, I feel like I’m one of the little piggies who isn’t as equal as some of the others. I don’t think that’s true.

💬 Hon Gerry Brownlee: No one wants the runt.

That’s right. So the two questions I have are: is the Minister, through this legislation, somehow establishing a new principle that there needs to be iron discipline within parties, and that any deviation for that is cause for expulsion because of disrupting the proportionality of political party representations; and, is he also saying that the fact that individuals in New Zealand get to vote—[Time expired]

Many of the points that have been made around distortion have resonated with us clearly on this side of the Chamber. But, as a member of the Justice Committee, which heard many of the submissions, I would have to say that Jeanette Fitzsimons made some very pertinent points about this issue around distortion. She began her text to us by saying that you cannot legislate for integrity. But when she started talking about proportionality, she gave some examples, and I thought the committee would be interested in those. Kennedy Graham and David Clendon took on their party around the actions of the co-leader Metiria Turei. Jeanette Fitzsimons, watching from a distance, was highly critical of her former colleagues Kennedy Graham and David Clendon, and she did not approve of the way they went about their criticism. However, she would “defend to the end their right to [their] freedom of conscience, and to express their views in opposition to the rest of the caucus, without being thrown out of Parliament.” As she said, what is this proportionality and this distortion really about?

The argument advanced for the bill—in fact, its stated purpose in new section 55AAB, inserted by clause 5—is to maintain proportionality of political party representation, as determined by the electors at the general election. In her view—and I agree with it—this elevates a bureaucratic structure—in other words, the party—above the principles it stands for and the principles it was founded on. So when you come to a voting situation, for example, what are the voters to make of this, if individuals are distorting what their party’s values are? Should they be voted back in again? Does it dent the party’s credibility in the minds of their voters and support base? These are the sorts of complexities and issues that arise when you have something as poorly defined as distortion is in this bill. While the Minister in the chair, Andrew Little, may thunder about the importance of paying attention to the detail of the bill, and, you know, it’s all very explicit—in fact, it is not—and I would emphasise that all of the submitters were against the bill and all of them referred to proportionality and distortion and felt that that was an appalling situation.

So let’s look at what you could do to improve this bill—it won’t take very long, because there’s not a lot that can be done around distortion. I guess, when we look at, again, what Jeanette Fitzsimons has said around this, coherent ideas, policies, and processes make up the platform of what a party exists to do. The voters have confidence in the representatives, so they elect them again and again and again, and proportionality in the representation of ideas, of policies, and of political philosophy is a very worthy goal, because voters’ wishes in a democracy should be supreme. The party should not be supreme; the voters should be, and the elected members should be able to express their discontent or their varying and different views to that of the party, particularly if it wanders as far off the reservation as Labour did. As Jim Anderton said, Labour left him, not the other way round.

So if, for example, in our party, one of our members decided that they didn’t like genetic technology, for example—Predator Free 2050 was a very firm policy of the previous Government and of National. Now, if a member went out in public and started to point out the defects and the problems with the genetic modification element that is part and parcel of achieving the goal of Predator Free 2050, then that member could be pulled into line. In our caucus, that would happen. The member would be taken aside and talked to and advised and spoken to. You know, we’re disciplined, and it works, but the member would not be thrown out of Parliament, and that is an absolute disgrace. The very idea that we cannot think for ourselves, that we can’t speak for ourselves, that we have no views other than that of the party leader—one brain, one opinion between nine or eight people. That is not the way the voters want to see it, and I would encourage members opposite and members of this Government, and, in particular, the Green Party, to reflect on the reality of the values and the fundamental principles upon which their party was founded and why they are there.

The members of the Green Party are turning their backs on what the principles are, and the voters will not appreciate it. Many, many people contacted us at select committee level. Many people who came before us, and others who have responded publicly since, think it is a complete disgrace that members of the Green Party cannot exercise their conscience, and I would say that Kennedy Graham and David Clendon are the heroes of the Greens because they stood up for what they believed in, and the Greens, under this bill, would throw them out for that privilege of them doing it, which is wrong and a disgrace.

I move, That the question be now put.

Oh, thank you, Madam Chair. It’s a great pleasure to take a call on this new clause 3A, because it actually goes, I think, to the heart of what we are talking about here. I want to just follow on from my colleague Maggie Barry’s description and discuss a little bit of history—recent history—around the former Green Party members of Parliament Dave Clendon and Kevin Hague, because they certainly acted in a way that did have the potential to invoke this. Indeed, it was that close to the election that what was currently able to be done in law was done. They were thrown out—

💬 Hon Members: Kennedy Graham.

Kennedy Graham, sorry, not Kevin Hague—is that what I said? Kennedy Graham and David Clendon. The Green Party threw them out of their party and took them off the list for the 2017 general election. My question is actually this: whose actions upset the proportionality of Parliament? Was it the actions of Kennedy Graham and David Clendon, in acting with honour and in upholding the whakapapa of the Green Party, or was it the remaining members of the Green Party, who threw them out?

Now, it’s worth speculating on that because I think we have a more recent example of where the Green Party stood for one thing before the general election and at least some of their members are now standing for something else, and that is with this bill. Every single member of the Green Party stood up and said how loathsome a waka-jumping framework was—every single one of them. So my question is which ones of them now are going to act with the sort of integrity that we saw David Clendon and Kennedy Graham display and demonstrate 10 months ago? My question is who moved from the principles—the grounded principles—of the Green Party in saying this bill is anathema to the things that they stand for? Yet there must be members in that caucus who are terrified, who want to do the right thing, who now know that the moment this bill is passed, if they do it with this or any other departure from Green Party principles, they’re out.

It is a fundamental philosophical question about who is upsetting the proportionality. Is it the person who stands on their principles or is it the party that moves away from their principles? I have to say, students of political history will know that this is just the latest chapter in a long-running saga in this Parliament, where members of Parliament have believed that it wasn’t they that moved from the core principles on which they stand and for which their party stood—Jim Anderton is a very good example of this. Even if it wasn’t so principled, even if it was relationship-based, even if it was the sort of thing that the Hon Maurice Williamson went through in 2003, where he was thrown out by the National Party caucus—what happened to that?

💬 Hon Gerry Brownlee: Suspended.

Suspended—touché. He spent another 14 years in Parliament—

CHAIRPERSON (Hon Anne Tolley): Could we just talk proportionality as part of this?

This is about proportionality, because that action, in standing up for the things that those MPs stood for, against their party’s wishes, is an action that under the new clause 3A that we are debating would constitute acting in a way that distorts proportionality.

I think this could even be expanded further with a potential amendment to say that the actions that distort proportionality are not the actions of the individual but the actions of the broader party that led to that point. Actually, it becomes a slightly existential question about who should resign: the member that stands up and says, “This is wrong—this is not what our party believes in.”, or the other seven members that say, “No, we’re going to fold like a red-hot Mars Bar because that’s what the Government wants us to do.”, because that’s exactly what the Green Party did in saying that they have a philosophical objection to this bill—“but we’re going to vote for it.” What kind of action does that speak to for a fine party that’s in its dying vestiges?

I move, That the question be now put.

From one O’Connor to another, but one wishes to speak and not close things down. Madam Chair, you and the Minister in the chair, Andrew Little, will know probably quite well by now that I have a great love of languages, having learnt quite a number, and of the importance of words. Obviously, as we are looking at this new clause 3A and the discussion around distortion of proportionality, one thing that’s been missed in the discussion to date is actually the very nature of what distortion is.

So I intend, if I might in the next four and a bit minutes, to try and drag that out, because I think we cannot, as a Parliament, discuss the distortion of proportionality without first and foremost understanding what distortion is, and then how that applies, actually, to what is known in philosophical areas as the hierarchy of understanding.

So distortion, ultimately, comes from the Latin “dis”, to pull apart, and “torquere”. Torquere means, effectively, to twist and to pull out of place. Where the Minister probably needs to first engage is—most of what he has proposed, and even colleagues with their Supplementary Order Papers are proposing it, is that this distortion is about twisting, but when you go back to the original Latin and torquere, it also is the root word of “torque”, when you think about engines. It’s about stability, actually.

As much as we want to stand here today and say the word “distortion” is about twisting the proportionality, the original word in “distortion”, torquere, means, like the torque of an engine or of a wheel; to hold firm; to actually be in one place. So the challenge, I suppose, Minister, is that there is a paradox in the wording that’s been chosen in your general policy statement and now in clause 3A, that, actually, distortion, as much as it means to twist, also means to force and to hold and to stand one’s ground. That’s the original Latin and that’s where we come from in the English.

The other, though, is that distortion sits within a hierarchy. We’re talking here about proportionality, but you cannot talk about proportionality without talking about where that stands, and that’s in terms of our Parliament and in our democracy. The very great philosopher called Bernard Lonergan talked about the figure and the ground. In other words, you can’t talk about a figure without seeing the ground before them. Very simply, Minister, and to the person in the Chair, you can’t see me as a figure without having the background. So when we look at this distortion of proportionality, there’s been a big talk that New Zealand First is worried it might lose its own support, and therefore, OK, we’re going to talk about the distortion around proportionality. But, actually, in passing this bill, we are fundamentally going to now distort the Parliament.

So if proportionality is supposedly at the top of this hierarchy of needs, what does that mean to our Parliament—the distortion of Parliament and distortion of democracy? If we’re going to hold, solely, firmly to the distortion of proportionality, as is suggested in new clause 3A, what is that proportionality going to do in terms of distorting Parliament? Fundamentally, Parliament is about our representation. I’m not going to repeat what a number of colleagues have touched on, but a number have expressed the problem that as they attempt to represent as an individual—yes, as an individual within a party; within, I suppose, their own constituency, where that’s applied—proportionality is going to actually override their purpose as a parliamentarian.

Then, continuing down the distortion line, if proportionality becomes the primary need, and if for some bizarre reason it overrides Parliament, that becomes a distortion, a twisting. I would suggest, without being far too dramatic, that the distortion of proportionality affects, ultimately, the distortion of democracy. And it’s sad that in the last week we’ve seen so much of an aggressive attack by liberals, primarily from the left but not exclusively, to attack the fundamental tenets of democracy—“I will only allow someone to speak if I agree with them.” It’s absolutely shocking. It’s absolutely shameful.

The heart of this attempt to talk about proportionality will, ultimately, in this hierarchy of need, distort the Parliament. It no longer is representative; it works to the will of a party leader, and it’s no longer really at the heart of a democratic process. It distorts that as well, because democracy is actually—well, actually, I won’t get into the Latin of “democracy” because, of course, as the Minister will know, democracy is a Greek word. Fortunately, I’ve learnt Greek as well—maybe I can use that in the next five minutes. The whole thing of democracy is “demos”—it’s the people. The thing is about people, when it comes to proportionality—[Time expired]

Thank you, Mr Chair. I just want to respond to a couple of points made in the last set of contributions. To the member who has just taken his seat, Simon O’Connor, I appreciate the lesson in Latin. However, our legislation is written in English. We adopt English meanings. But I’m very thankful that he did, finally, in the closing seconds of his contributions, refer to the most important element of our constitution: the people. It is the people, those with the franchise when they get to vote, who determine the make-up of this Parliament, and this is all about making sure that the will of the people—“the demos”, as he, in his Greek formulation, would have it—make that decision.

To the Hon Paul Goldsmith, who asked the question “Is there an expectation of an iron will?”, I invite Mr Goldsmith to cast back to 2003. I don’t recall whether he was around these precincts at that time, but he will know when Maurice Williamson—then a National MP—had the apparent temerity to speak out and publicly say he thought it was time for the National Party to decide or work out where it stood or what it stood for. That invited a phenomenal reaction, principally from the Hon Nick Smith, who organised to have Mr Williamson expelled from that caucus. So if he’s concerned about—

💬 Hon Dr Nick Smith: I raise a point of order, Mr Chairperson. Previously, I have given a personal explanation to the House. Mr Little was not present in the Parliament at the time. Members of the House that were will attest that that is incorrect and untrue. You can’t deny that a personal explanation has been said.

CHAIRPERSON (Adrian Rurawhe): Thank you. I don’t think it’s helpful for the Minister to be traversing this issue, and this new clause 3A is very narrow. I’m going to ask all members—I’ve been watching and listening to this debate this morning—if they could restrict their comments to the proposed new clauses.

Thank you, Mr Chairman. The point is, of course, as members opposite have been arguing now for the last hour and five minutes, that somehow actions unrelated to the decision of an MP to take themselves out or be pushed out of their party constitute a distortion of proportionality of representation. Maurice Williamson’s action in raising a question about his own party was not an act distorting the proportionality of representation in Parliament, notwithstanding the reaction of their caucus at the time. Likewise, the Hon Maggie Barry correctly says these issues are complex but then says that we should not be concerned about the detail of legislation. We are lawmakers; there is detail and we have to get across it. The detail in the legislation is very clear about the distortion of proportionality of representation. Members have to stop severing the phrase partway through for their own convenience.

Finally, the Hon Michael Woodhouse asks if people who are taken off the list for a subsequent election constitutes distorting the proportionality of representation of the extant Parliament. It would demonstrably not. The words of the legislation are very clear, and the Supplementary Order Paper calling for some further definition for a problem that doesn’t exist is simply not needed. Members should focus on the words in the bill. That’s the best advice I can give.

Mr Chairman, thank you. I just want to immediately respond to Mr Little’s last series of comments, where he is saying that members should focus on the bill and look at the detail that is in the bill. Well, on proportionality, what it says in section 55D, inserted by clause 5, is that if a leader “reasonably believes that the member of Parliament concerned has acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election;”. What determines that representation at a general election is the policy platform that a party goes out on, so what happens when a member of Parliament decides to stick to that platform, as in the cases outlined by Michael Woodhouse? What happens when you get a different situation?

And make it very clear: we are here because Winston Peters was upset by Brendan Horan eventually becoming an Independent member. He became an Independent member because Mr Peters booted him out, because Mr Peters condemned him before he had been before a court. And when he went before the court, he was exonerated. So in that circumstance, who was it who distorted the proportionality of Parliament? Who was it who forced someone out of New Zealand First and no longer allowed them to cast their vote for New Zealand First? It was the leader of the party who, under this provision, would be able to simply say, “Well, I’m sorry. My caucus are too weak to oppose me; so, sonny, you’re on your way.” That’s what this is about. It’s as clear as that. It is a guillotine provision provided to every leader of a political party, against any dissent that might occur from in the ranks of that party, even if, as the bill states, they are the ones who are pushing the party policy as presented at the last election.

Everyone knows that under MMP there are compromises. Everyone knows that the current Government is cobbled together by both a public and a secret agreement between parties about what they’re going to do in Government. But everyone also knows that that means the Green Party have had to lay aside some of their policy planks, the Labour Party have had to lay aside some of their policy planks, and the other party’s got most of their policy planks. That’s what happens under MMP. But it doesn’t mean that members who come here cannot speak against the decision to abandon party policy.

I also ask the Minister this question: if a member is elected by a constituency and there were issues in that constituency, and if the leader of the party concerned came along and said, in the campaign, “We will remedy them.”, but then in the coalition arrangements it all gets pushed aside and the elected member—the person who has the majority of confidence of the electorate—is left high and dry, are they allowed to speak against that particular action by their party? Under this, no. It would mean, simply, that they have to knuckle under. It means that there is, effectively, no more electorate representation. There are just people who stand in electorates with a party banner over the top of them, and I notice it’s only the people who are not elected from electorates who are laughing and shaking their heads and carrying on in a completely ridiculous fashion on the other side of the Chamber.

This is a very, very important bill as far as New Zealand’s constitutional arrangements are concerned. It’s an important bill for democracy. The concept of proportionality must always go back—as the Minister has just agreed—to the will of the people who cast their votes, and to have a bill that takes that away is extremely undemocratic. We’ve already been through the exercise this morning where we’ve found out that an elected member, directly elected, cannot be exempted from the bill—or we can’t even discuss that, apparently, so I don’t want to upset the Chair. But it’s a very odd thing that there can be no discussion inside a bill that is about the proportionality of Parliament, the make-up of Parliament, and the representation of the will of the people in Parliament through that proportionality—that there can be no discussion about the views of those who are directly elected.

Thank you, Mr Chair. It’s a pleasure to take a call on this. Now, very clearly, this is an egregious affront to our democracy, but I think nothing is more so than this whole concept of the idea that a member of Parliament, or, in effect, a party leader, or even the collection of members can somehow know what it is that actually does distort party representation, or what is likely to. The reason I raise that is it comes to the heart of how can we have knowledge of what has formed, and the reasons for the forming of the representation of parties in this House.

The proportionality of the House is determined by the aggregate of individual, free-thinking New Zealanders each casting their own vote in a general election, and then the aggregate determining how many seats each party gets. So to know what has created that proportionality is to claim to know the exact reasons why each of those 2.5 million or more people cast their party vote the way they did. That is fundamentally core to this provision, this idea having any merit at all, and I would argue that no individual member and no collection of members in this House can evince that—no; we cannot claim to know that.

What we happen to know that parties do is they go out to the electorate at large and they have manifestos. They make announcements—some people may see them as commitments—on a campaign trail. One thing they also do—and they are required to do it under this very principal Act, actually—is publish a list of candidates. The public are able to make choices with their party vote that may have some weighting on the individual elements to the manifesto and the promises made and may also be based on who is present on that party list, and to the degree they do that, we cannot possibly know.

So if, to give this some example—potential, real-world example—Mr Darroch Ball were to take a position that the oil and gas exploration ban was wrong for New Zealand and were to make public pronouncements on that, not only would he be 100 percent correct, but he might find himself having a charge against him from his party leader saying, “This is an act that is distorting our party representation, because our caucus has a view that is different to what you’re expounding, Mr Ball.” But here is the actual fact, and it is why this clause is so important and wrong: the New Zealand First caucus’ view on that and Mr Peters’ view on that is not relevant, because what determined the party representation for New Zealand First in this Parliament, as is the case for other parties as well, was the decisions that individual voters used to cast their vote—the few votes they got—for New Zealand First.

So in order to be able to show that there was a distortion of party representation, or the likelihood of a continuation of such, that caucus or that leader needs to be able to show, evince, and have the evidence that they would receive a different number of votes if that member were to continue with that line of public position, and the only way they can substantiate that claim is through another general election. If it is the people that created the proportionality of Parliament, the only way to test “Has it changed?” is to give all of those people the opportunity to speak again, which is also, by the way—and in another important related point—why actually having an electorate MP have a by-election if they fall out of favour with their party leader and claim that doesn’t upset the proportionality of Parliament is abjectly false, because it takes the power away from the aggregate of 2.5 million - odd votes and places it in the hands of about maybe 14,000 people.

So this is an absolute disgrace of a bill. But this idea about individual members or their party leaders—because, in effect, it is the party leader that exercises the authority to claim to know what determines an impact on party representation—is fundamentally false, and the only way to test it is through a general election.

I call Jan Tinetti.

I raise a point of order, Mr Chairperson. Thank you, Mr Chair. I see that you were looking on the other side of the Chamber. I have an amendment in new clause 3A—

CHAIRPERSON (Adrian Rurawhe): What’s your point of order?

—and I request to be able to speak on my amendment in this committee at this time without a closure motion being addressed.

That is completely out of order. Please sit down.

I move, That the question be now put.

I, firstly, want to respond to the contribution by Minister Andrew Little. Let me quote the words that he said to the Parliament: “All MPs are equal.”—right? Do you know the last time I heard that phrase? Animal Farm, and that is about how Orwellian the statement that “All MPs are equal.” is when we come to this bill and this amendment.

I will tell you why. Do you know who are the MPs that are exempted from this test that we are debating around acting in a way that distorts the proportionality of Parliament? It applies to all MPs except the leaders. So when the Minister in the chair said that “All MPs are equal.”, he forgot a little phrase: “But some are more equal than others.”

Can I put it even more deliberately: as every member of this House knows, who is the most unequal member of this House? He used to be the member of Parliament for Hunua, but they got rid of him. He used to be the member for Tauranga, and they got rid of him. He used to be the member for Northland, but the good mate Matt King got rid of him. But what this bill is about—what this bill is about—is giving Mr Winston Peters extraordinary powers that are an offence to anybody that genuinely believes in democracy. Because here’s the key—here’s the key. I’ve asked over and over again on this clause. It says that a member of Parliament can be fired by the leader of a party if they act in a way that distorts the proportionality of Parliament. And what we’ve asked with this amendment is that we need some definition of what that means.

Now am I—and I know the Minister in the chair has called me despicable for raising this question. Well, I put to him this: I am not the only one raising this question. The legislation advisory committee has raised exactly the same point. They have said, on such a crucial point as to whether a member of Parliament gets dismissed or not, a vague phrase saying, simply, that they’ve acted in a way that distorts the proportionality of Parliament provides no certainly. And it’s not just the legislation advisory committee that said that; the Clerk of the House has said that this provision is vague and needs to be defined. Now, if the Minister in the chair is saying I am despicable, is he also saying the Clerk of House is despicable? Because, in me asking these questions—I think they are reasonable questions. They are absolute questions that go to the core of our democracy, and that is the right for a democratically elected member of Parliament to stand in this House and not to be fired because they have acted in a way that distorts the proportionality of Parliament.

Then the Minister in the chair brought up the debate around Tariana Turia, but he didn’t answer the core question, and it’s this: whether it was Marilyn Waring, whether it was Derek Quigley, whether it was Jim Anderton, whether it was Tariana Turia, or whether it was, more recently, Brendan Horan—in each of those practical examples, would they meet the test of having acted in such a way as to distort the proportionality of Parliament? I’ve listened to this debate for more than an hour, and, I have to say to members that I am none the wiser. I do not know—I do not know—what this law says about what I can do and what I cannot do as a member of Parliament. How can this House write law that leaves so much uncertainty about what I can and cannot do as an MP?

And let me come to the amendment. The amendment says: let’s at least make clear that when I am speaking as the member for Parliament for Nelson, I cannot be fired for it. So if I want to stick up for my fishing industry, if I want to stick up for clean rivers in my area, if I want to stick up because I have a strong view about a school in my area, that should not have me fired as a member of Parliament. It’s my job. It’s my job as a member of Parliament to be an advocate for Nelson, and no party leader should have the power to kick that person out of Parliament.

So I say again to members opposite: support this amendment and reinforce the democracy, the free speech, and the capacity for members of Parliament to do their job.

I move, That the question be now put.

💬 Hon Gerry Brownlee: Point of order.

We are in the vote and you will wait to the end of the vote.

I raise a point of order, Mr Chairperson.

💬 Hon Gerry Brownlee: You can’t have a point of order, apparently, in the middle of the vote. So be consistent.

CHAIRPERSON (Adrian Rurawhe): It’s completed.

It’s a completed vote.

CHAIRPERSON (Adrian Rurawhe): And by the way, points of order are held in silence.

Mr Chair, this is a very serious bill that we are discussing today, and I’ve put up a very serious amendment. Only a matter of minutes ago, I brought a point of order to your attention—that as the mover of that clause 3A amendment, I would like to be able to speak on my very own amendment. Part of democracy would necessarily be that the person who moves the amendment should speak on it. That opportunity was not afforded.

Order! That point of order has been dealt with and it finished there. I advised the member of that at the time. That ruling cannot be relitigated. I want to remind the member that he did in fact speak to his tabled amendment on the last sitting day that this bill was considered in committee. So on both counts he’s incorrect. I am not going to entertain the idea that those rulings can now be revisited. They cannot, and any further attempt to do so will result in a serious consequence.

I raise a point of order, Mr Chairperson. I’m not relitigating your ruling at all, but the point that was being made by my colleague was that, essentially, there are a lot of amendments on the Table for a bill that is, to say the least, challenging, not only to many members of the Parliament itself but, many of us would contend, to the integrity of the electoral system—despite its name—and to the loose constitutional arrangements of New Zealand that ensure a high degree of freedom, particularly freedom of speech. We have been informed by members of the media that the Government has told them that this bill will be read a third time later today, recognising today is actually Wednesday.

💬 Hon Members: What?

CHAIRPERSON (Adrian Rurawhe): Points of order are heard in silence, thank you.

That, I think, is potentially an attack by the Government on the integrity of the Chair, the integrity of the Speaker, and the presiding officers. I would like to get some indication of whether or not there is some agreement among the presiding officers about how long this debate is going to go for. Is it a debate that is going to be unnaturally curtailed because the Government has a desire to get it through by a particular period at a particular time? Because I don’t think—you know, I wanted to raise this before. I didn’t because I don’t want to be seen to be unnecessarily interrupting things, but it’s an important bill, possibly the most important bill in a constitutional sense, that this Parliament will deal with.

The short answer: no.

New clause 3A (Definition of integrity)