Electoral (Integrity) Amendment Bill

We now come to the debate on new clause 3A relating to the functions of the Electoral Commission, as set out in section 5 of the principal Act.

The next amendment that this committee needs to consider relates to the important role that the Electoral Commission has. What we propose to do with this amendment is to extend the functions of the Electoral Commission to include reporting on the use of the new vacancy provisions where a leader can sack a member of Parliament. I think this Parliament has a great deal of respect for the independence of the New Zealand Electoral Commission. They conduct our elections, and, actually, I’m very proud of the fact that in the last general election we got one of the highest rankings in the world for the conduct of our elections and for the standing of our democracy. In fact, The Economist magazine last year ranked New Zealand the third-best of 170 democracies in the world.

Our concern is that this bill is going to take us backwards. Why do we know that? Well, we know from reputable organisations like the Inter-Parliamentary Union that these measures are described as “political party dictatorships”. In fact, the Inter-Parliamentary Union goes even further and says the free mandate of members of Parliament is essential to any parliamentary democracy. So what we’re saying with this amendment is that we need the Electoral Commission to independently report on the use of these new provisions.

I am deeply worried that these amendments are going to be used, in the words of the Government’s own Attorney-General, to chill the expression of views of dissenting members of Parliament. That’s what the Government says the bill will do. So I would say that we need someone, somewhere to act as a check on this extraordinary power that is being created. We think the appropriate check should be a new requirement in new clause 5(g) of the principal Act for the Electoral Commission to have to consider and to report to this House on those new measures that allow a party leader to dismiss a member of Parliament.

What sorts of things would I expect to be covered in those reports? Well, I’d expect the Electoral Commission to look at whether there was fair process, because there’s very widespread concern about the processes in this bill: the fact that it breaches the New Zealand Bill of Rights Act, in the views of 21 constitutional lawyers; the fact that there is very little definition—as we’ve debated—around the issue of what constitutes acting in such a way that a leader of a party is entitled to dismiss you.

It would enable the Electoral Commission to report on the issue of a by-election, because where a member of Parliament is dismissed, the Electoral Commission will then have the responsibility for organising the by-election in that particular area. Can I tell you why it is a real question and why the Electoral Commission does need to report? It is this: anybody that’s been involved in a by-election—do you know what the public asks first? “Why are we having a by-election?”—they do. They’re surprised, and they will be surprised when they find that their democratically elected member of Parliament has been dismissed—

CHAIRPERSON (Poto Williams): Can I just remind the member that this proposed amendment will not have anything to do with the conduction of by-elections.

Well, Madam Chair—

CHAIRPERSON (Poto Williams): No. I know that member is—

Well, Madam Chair, what this provision does is it requires the Electoral Commission to report to the House on any use of vacancy provisions that are created under section 55 and new section 55AAB. Let’s be honest about what happens in new section 55A: an MP gets dismissed and there’s a by-election. So, in my view, it is entirely appropriate.

What’s more than that is this: if the member is a list member, it is the Electoral Commission that has the responsibility for approaching whoever is the next member of Parliament on the list and with them being returned as the new, compliant member of Parliament—having been able to get rid of a dissenting one. Now, my view is it is entirely appropriate that this Parliament requires the Electoral Commission to regularly report to Parliament. I put it to the committee that there is a long list of matters and functions of the Electoral Commission: section 5(a), (b), (c), (d), (e), (f), and now (g).

I rise to support the amendment that’s being moved by the Hon Nick Smith to insert new clause 3A, a clause that, if it’s inserted, would require the Electoral Commission to report on the processes that are used in any event of the provisions of this bill being triggered. It’s very, very necessary, because if we look at the triggers that are provided in the bill, it’s simply that the leader of a party 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 the political party’s representation in Parliament.

Now, there will be a body of thought that says, well, only a political party leader can make that choice, but throughout the morning, throughout last evening, and throughout the other day, we heard Minister Little saying that’s not right: it’s not the leader that makes this decision, it’s the party itself, the caucus, the group of people, the two-thirds of the caucus. We have also established, though, this morning in discussions, that it’s the coercive nature of the leader’s role that means that the leadership will always be the determiner of when this is triggered. So to have the Electoral Commission reporting to the Parliament on how a procedure around this has been appropriately used, and given that they are the body who determines post any general election how the proportionality of Parliament is made up, once they analyse how the votes are cast—and everybody knows that that is an interesting and complicated formula. For example, in the last election, on election night, National had two more seats than we ended up with. Now, that’s not only just the final count of the vote, but it’s the ripple effect of the calculations that are used to determine that proportionality. So there is a mathematical aspect—

CHAIRPERSON (Poto Williams): I don’t like to interrupt the member—I’m sorry, I’m just going to call you to order. It is very specific in this amendment that it calls on the reporting of the vacancy creation provisions as referred to in sections 55 and 55A. So—

Well, with respect, it actually says that it will “consider and report to the House of Representatives on any use of the vacancy creation provisions referred to in sections 55 and 55AAB to 55E” of the bill. So it would be unreasonable, I think, to say that all we can talk about is the first line of the amendment, without explaining how that first line and its subsequent second line are relevant to other sections in the bill.

CHAIRPERSON (Poto Williams): However, it is not unreasonable to ask the member not to refer to the previous general election, because that is not the intent of this particular clause. So if I could confine you to the specifics of—

I raise a point of order, Madam Chairperson. Is the Chair now ruling that a bill that has the title of Electoral (Integrity) Amendment Bill—there can be no reference in debate to past elections?

CHAIRPERSON (Poto Williams): No, I’m not ruling that. What I am asking the member to do is to confine his speech to this specific amendment. This bill has been debated for some time. Many of the arguments that the member is raising within his contribution have already been raised in other parts of the debate. I’m looking for some new and relevant material. That’s all I’m asking—

That is the point, Madam Chair. We’re on a point of order here—speaking to the point of order, simply because someone else has said something—

CHAIRPERSON (Poto Williams): Actually, could I just ask the member to—and could I just ask for the Clerk to stop the clock. I just want to make a couple of things clear. When we are taking points of order, there are clear processes about how that works. You seek a point of order, and I call for it, then I make a ruling. Then you might seek another point of order. However, a point of order is not necessarily a discussion and a debate and a conversation across the House. There’s a very clear process that has to happen. So I’m going to hear your next point of order, then I’ll make a ruling, and then, hopefully, we’ll be able to move on.

My point of order is asking if the Chair, having now agreed that we can refer to elections, because it would be ridiculous in a bill like this not to be able to refer to them—are we now, though, only allowed to bring up material that is completely new, without elucidating on points that’ve previously been made? It is a debate, and often in a debate there will be a restatement of positions from different perspectives so that there can be the widest possible consideration of it. This is a very important constitutional debate—no question about it—and we do need to be clear if the Chair or the presiding officers have some predetermination about how it’s all to be conducted.

CHAIRPERSON (Poto Williams): No. You will resume your seat. That, I’m afraid, Mr Brownlee, is calling into question the integrity of the Chair, and I’m going to require you to stand, withdraw, and apologise.

I withdraw and apologise. I raise a point of order, Madam Chairperson. I move, That the Speaker be recalled.

CHAIRPERSON (Poto Williams): The Speaker will be recalled.

House resumed.

Speaker Recalled