Electoral (Integrity) Amendment Bill

Members, we come to the debate on clause 5. Before we get to the debate, we have a number of proposals to amend clause 5. Several of these are out of order, but there are several that I have accepted and can be debated as part of the debate on this clause. First, I will advise the committee which amendments are out of order and cannot be debated.

Ian McKelvie’s amendment set out on Supplementary Order Paper 80 is out of order as being inconsistent with the principles and objects of the bill as agreed at the second reading. Ian McKelvie’s amendment set out on Supplementary Order Paper 81 is out of order as being inconsistent with the principles and objects of the bill as agreed at the second reading. Denise Lee’s amendment set out on Supplementary Order Paper 83 is out of order as being inconsistent with the principles and objects of the bill as agreed at the second reading. Simeon Brown’s amendment set out on Supplementary Order Paper 85 is out of order as being outside the scope of the bill. The Hon Dr Nick Smith’s amendment set out on Supplementary Order Paper 56 is out of order as being inconsistent with the principles and objects of the bill as agreed at the second reading.

There’s a rich irony that, having just moved from a special debate on bullying by a Government Minister, we move to the “Bullying Bill”. This clause 5 legislates for the bullying of members out of this Parliament. There’s a very rich irony that, just a week ago, collectively across this Parliament, we celebrated 125 years since we amended the Electoral Act to give women the vote. I say that those members voting for this bill take New Zealand from being a leader in liberal democratic values to actually being one that is ripping up centuries of law around the rights and the freedoms of members of this House.

Here’s the most extraordinary part of clause 5: officials did an analysis of this bill and asked the question “Which country has a provision most similar to clause 5?”

💬 Hon Member: Which country?

The country, my colleagues, was Zimbabwe. I want to know from members opposite, when they wake up in the morning, do members of the Labour, New Zealand First, and Green parties say, “I just wish our democracy was like Zimbabwe’s.”?

💬 Hon Scott Simpson: Probably.

My colleague Scott Simpson says, “Probably.” Members on this side of the Chamber say, “Hang your heads in shame. It will forever be a black mark on your records as members of Parliament for supporting such a Draconian change in our electoral law as this.” Members on this side of the Chamber have a nickname for clause 5: we’re going to call it the “Mugabe clause”—the “Mugabe clause”. We will fight this clause, the major part of this bill, with every bone in our bodies because it is just plain wrong.

Now let’s go through and look at what clause 5 does. It allows the leader of a political party to be able to dismiss a member of the House—and here’s the test, in new section 55D—when a parliamentary leader believes that a member has acted in a way or may act in a way that distorts the proportionality of Parliament.

💬 Chris Penk: May act?

May act. It is so broad—it is so broad—that this is giving party leaders enormous power. Here’s my question for members opposite: how often do you hear people saying, “I just wish we would give Winston Peters more power.”? Is that what members are hearing in their constituencies? Oh, no. In the area of Rodney, does my colleague Mark Mitchell have thousands of constituents saying, “I really want you to change the Electoral Act and give Winston Peters more power.”? Is that what members in the Labour Party are hearing from their constituents? Be in absolutely no doubt; what’s in this clause 5 is a crude power-grab by the Deputy Prime Minister to wield even more power and to have the capacity to dismiss any member of Parliament that does not follow his latest wish or whim.

Let’s test that. If a member of New Zealand First wakes up tomorrow and says, “Oh, actually, we said before the election that we’d support oil and gas, and I think it would be a matter of integrity if I voted in this Parliament to support oil and gas.”—guess what? Clause 5: you’re out the door; you’re gone. That, supposedly, is integrity. Let’s say a member of New Zealand First says “Actually, I believe we should stand by our policies on 1080.”—when they campaigned on it being banned. What happens if a member of New Zealand First finds their conscience, says what they would do, and votes against 1080? Out they go; they’re gone. If they find their conscience on any number of issues, what this bill does is actually give licence to party leaders to wield even more power than they have right now. What we have in clause 5 that is so offensive is the complete lack of any real checks or balances on the power to dismiss a member from the House. I was talking to an Australian member of Parliament about this provision. His question to me was, “This can’t be for real?” Not a single party or member of Parliament in the Australian Parliament, in the US Parliament, in the British Parliament, in any Parliament in Europe, or in any real democracy would ever consider a measure such as that proposed here in clause 5.

I want the Minister in the chair, Andrew Little, to address a number of questions. Firstly, just what is meant by a parliamentary leader reasonably believing a member of Parliament has acted in a way that may or that does distort the proportionality of Parliament? Would it have applied to Tariana Turia when she stood on a matter of principle associated with the Foreshore and Seabed Bill, for which the Minister in the chair subsequently apologised to Māori and, basically, said that Tariana Turia was right? Would it have applied to Marilyn Waring, who, on a matter of principle, actually brought about an early election? Or would it have resulted in them being dismissed from the House?

I ask about the situation of a member like Hone Harawira, who left the Māori Party quite recently, actually, because he didn’t agree with a decision? I say to Willie Jackson, across there—I suspect Willie Jackson agreed with the decision of Hone Harawira to leave the Māori Party—would he think it was just for the leadership of the Māori Party to have dismissed that democratically elected member of Parliament, as is proposed in clause 5? Would that have met the test? Would a Green member of Parliament who campaigned saying this provision is undemocratic, is Draconian, is a threat to democracy—that’s what they say. If a single member of the Green Party finds their conscience and votes against this provision, will they, effectively, be shown the door of Parliament and be dismissed from this House? That is how serious the provisions in this part are.

I’d also like the Minister in the chair to address the question of the New Zealand Bill of Rights Act, because we heard at the Justice Committee not just one, not two, but 23 constitutional experts say that this clause 5 breaches the most fundamental part of the bill of rights relevant to this Parliament, and that is the free speech of members here. We had all those experts, and you know the only person the Government can find who says it doesn’t breach the New Zealand Bill of Rights Act is David Parker, who happens to depend on his job as Minister on the passage of this offensive part. So my challenge to the Minister in the chair is: name me a single constitutional lawyer—a single constitutional lawyer—who believes that clause 5 of this bill—

💬 Hon Tim Macindoe: There isn’t one.

—is not a breach of that bill of rights. As my colleague Tim Macindoe says, he won’t, because there isn’t a single one in New Zealand, and that just shows how offensive it is, what Parliament is being asked to do this afternoon.

There are a number of significant amendments in my name to this clause. Those amendments cover the issues of even getting some decent process around this obnoxious provision, by which a party leader is able to dismiss a member of Parliament from this House. There are amendments that aim to exempt particular electorates, and we think they should apply. We have moved amendments to exempt members, even on the Opposition side. My challenge to members opposite is this: are you members of Parliament or are you poodles? If you really believe in this institution, if you really have pride in your rights as a member of Parliament, you need to take a call and oppose this clause.

Thank you very much, Mr Chair. I can answer the questions for Dr Nick Smith, and that is that poodles have much more bark than the members opposite. Here we are again, back debating—as I think he has correctly labelled it—the most obnoxious piece of legislation that’s come before this Parliament in a very long time. And yet again, members opposite have their heads down, they show no interest whatsoever in taking a call—we know that’s because they’re humiliated by it. There are some honourable members opposite who know that this is an appalling travesty against our electoral system, and so I don’t blame them for not wanting to take a call. But here we are in week four of a four-week sitting session, and it’s been several weeks since we last had the business of the House interrupted by this travesty, and I had really hoped that during that time, some members opposite would have developed the intestinal fortitude to say, “This is appalling. We are going no further with it.”

CHAIRPERSON (Adrian Rurawhe): Order! It is inappropriate to use that term, and I just want to remind members. You’re calling into question a member’s courage, and so—no.

Well, I apologise, sir—I didn’t think I had used that word, but I shall move on.

The Hon Dr Nick Smith also asked a very important question as we move into clause 5 of this particular bill, and it is the one that has some of the most outrageous aspects to it. The question was: which one of our constituents has said to us recently, “We want you to give Winston Peters more power.”? Anyone? No. Well, I have met recently with Grey Power in my electorate, I’ve had a forum in my electorate, and I’ve had a number of opportunities with party members and others to ask, “What do you think about what’s going on at the moment?” And what they’ve said to me is that, far from wanting this House to give Winston Peters more power, the thing that really gets their goat is the fact that, here, he has got a bill where he will add to the appalling nature of the system. They hate the fact that Winston Peters chooses the Government. We have an electoral system which takes away from the voters the ability to choose the Government and gives it to the leader of a minor party. They really hate that, and they tell me regularly how much they hope we can get away from it.

So what do we have here in clause 5? We’ve got a provision that says the leader of a party can write to the Speaker, effectively saying, “I’m fed up with this member of my party. He’s upset me. He”—or she—“has said something that I don’t agree with, and, therefore, off he goes.” Well, that is an appalling affront against democracy. And so I so agree with Dr Nick Smith when he says that this is the “Mugabe clause”, because it’s the way that tyrants behave. I say, particularly, to the Green Party—it’s good to see one of the co-leaders here—your party has a history of standing up for human rights. Your party, the Greens, has a history of speaking out against—

💬 Marama Davidson: Stop pretending to be all righteous. Cut it out.

—appalling abuses of power. And here we have Marama Davidson, actually defending the indefensible. I’m fascinated. I’m so pleased that here she is, prepared to say, “We have spoken about these things when we’ve been out in the public forum. We’ve spoken about these things at our party meetings.” But she won’t come into this Chamber and take a call and explain why, suddenly, this outrageous abuse of human rights is OK.

Well, I want to speak to the first of my Supplementary Order Papers, and it’s in respect of clause 5. Supplementary Order Paper 65 calls for a new paragraph to be added in new section 55D, after paragraph (d). For the benefit of those who are listening, let me just point out that sections 55AAB to 55E have been inserted supposedly—and here is the ultimate irony—to enhance public confidence in the integrity of the electoral system by the measures that follow: to enhance public confidence in the integrity of the electoral system. What a joke, Mr Chair. This does exactly the opposite. This fundamentally undermines public confidence in our electoral system. So I’m seeking to insert new paragraph (e), in new section 55D, after paragraph (d), to “state that, after consideration of the conduct of the member, the parliamentary leader of that party for which the member was elected confirms that the party secretary of that party agrees that written notice—”. [Bell rung] Mr Chair?

CHAIRPERSON (Adrian Rurawhe): The Hon Tim Macindoe.

Thank you, Mr Chair, because it’s important that I get this out: “should be given by the parliamentary leader under section 55A(3)(b).”

Now, Mr Chair, as I say, this is very important. I’ve spoken in that previous call about the fact that essentially this is a bill that gives Draconian powers to the leader of a party to wield extraordinary control over members of his or her own party in such a way that, frankly, requires them to become sycophants, absolutely supplicants, supplement—sorry, I’ll get the right word. It requires them to be absolutely pandering—I’ll go for a different word—to the whims of the leader of a party who wants to reign supreme, call all the shots, and will not brook any opposition.

So what I’m saying in this amendment—and I call on members of the governing parties to support this amendment to this clause—is let’s just take a little bit of power back to the party which saw that member elected, presumably under the party list, although it could also apply to electorate members, by saying that the party general secretary—and they have different names. We have a general manager in our party, but it’s the person performing the role of ensuring that the rules of the party are upheld and abided by not only in the selection process but also in the way that the MPs conduct themselves in the business of the House.

We do have an obligation to uphold the fundamental principles and policies of our parties. No one disagrees with that. I’m not going to come in as a National Party member of the Parliament and then suddenly start, day after day, articulating the policies of the Green Party or the Labour Party or New Zealand First.

💬 Simeon Brown: Hopeless policies.

They are hopeless policies, Mr Brown, and that’s a very good reason why I wouldn’t do it. But I also wouldn’t expect the party to tolerate it if I did.

But that’s not what we’re talking about here. We’re talking about taking away from members of Parliament the ability to stand up for things that are important to them in their electorate or that they believe are fundamental to the policies that saw them get elected. If a party moves away from the policy, the MP who wants to stand by the policy is suddenly caught high and dry if the party leader says, “Well, I’m sorry, I don’t care what you think about the policy now. I’ve decided to take us in a different direction, so you either come with me or get out of here.”

So I believe it’s very important that this particular Supplementary Order Paper is adopted, because it will at least give a little bit of an oversight function back to the political party so that the party leader cannot behave as an all-controlling tyrant à la Robert Mugabe, as he used to do for about 30 years in Zimbabwe. That is something that all members of this House should be—

💬 Jamie Strange: Sounds like Robert Muldoon.

Jamie Strange wants to make a comparison with Sir Robert Muldoon? Surely not—surely not—because whatever you might’ve thought of Sir Robert Muldoon, he ultimately came to power in an election and he left power in an election. Members of the National Party had a very proud record, Mr Strange, of standing up against Sir Robert Muldoon, particularly in the latter days of his administration, and they have been celebrated and acknowledged. So to compare Sir Robert Muldoon with Mr Mugabe is deeply offensive, and I’m surprised to hear that member say that.

But, as I say, I’m talking about giving the party the ability to rein in the party leader. If this vile, offensive, repugnant, totally undemocratic bill is ever to disgrace the legislative books of this nation, at least let’s rein it in a little bit by taking away from that party leader that total tyrannical power—

💬 Hon Shane Jones: No, no, no.

And yet we’ve got the Hon Shane Jones saying, “No, no, no.” He wants Winston Peters to tell him what to do, and, if Winston Peters doesn’t like him, to get out of here. Well, I thought Winston Peters was grooming him to be his successor, but oh, no—well, maybe that’s it. Maybe what we’re having is the Hon Shane Jones saying, “When I take over from the Rt Hon Winston Peters, I want to have the same power. I want to be able to tell all of my cronies, all of my colleagues, ‘You either buck up, you do exactly what I say, or you’ll be out of here.’ ” So, thank you, Mr Jones, for outing yourself. You’ve actually added an insight into this bill that has previously been lacking.

I implore all members of the committee to support my Supplementary Order Paper.

Oh, thank you very much, Mr Chair. I want to talk, in my contribution, about the new section inserted around—

💬 Hon Shane Jones: About Wally Haumaha.

Oh, no, no, no—not Mr Haumaha. Ha, ha! That member doesn’t want to talk about Mr Wally Haumaha and Mr Haumaha’s relationship with his leader. He certainly doesn’t want to be bringing that one up. That’s an interesting call for Mr Jones to make, one I think he may live to regret, but anyway.

I want to talk about new section 55D, and, in particular, I want to talk about this phrase “distort proportionality”, because the new section to be inserted into the Act, 55D, is all about what the parliamentary party leader must believe, and if, in the opinion of the party leader, they “reasonably [believe] that [a] member of Parliament has acted in a way that has distorted, [or] is likely to continue to distort, the proportionality of political party representation as determined at the last … election”—that is, in some ways, the most critical phrase in the entire legislation. Everything hangs on that. Everything hangs on what the reasonable belief of the parliamentary leader is about the proportionality of political party representation. That’s what the entire bill and Act is about, and I want to interrogate, in this contribution, exactly what that means, because it is actually very unclear what that means, and we need clarity. We need to understand what it is.

Does it, for example, mean to cross the floor? Does distorting proportionality mean to cross the floor? In a literal and strict sense, it can’t mean that. The National Party has 56 MPs in this Parliament—

💬 Hon Scott Simpson: Good MPs.

“Good MPs”, says my colleague Scott Simpson—that’s right. If distorting proportionality means to cross the floor, and it means that on a particular vote—say, for example, Scott Simpson chooses to vote on an issue of conscience that the party has taken a party position on but he feels so strongly either for his own conscience or for the good people of Coromandel—

💬 Hon Scott Simpson: Mangroves.

Mangroves, for example; something that’s particularly important in that locality. Say, for example, he crosses the floor, and on a particular division in the House, on that particular bill, or even in that particular clause within a particular piece of legislation, the National Party only votes 55 votes in favour and Scott Simpson votes with Labour and the Greens and New Zealand First. Well, does that mean proportionality’s been distorted? The National Party’s still got 56 votes in the Parliament; 99 percent of the time, the National Party will cast 56 votes in the Parliament. Does that mean proportionality has been distorted? You could think of numerous other examples, because in a strict and literal sense, the National Party was elected with 56 MPs at the election, and they still have 56 MPs, notwithstanding the fact that, on occasion, Scott Simpson, my good colleague from Coromandel, may choose to vote with the Government. So is that what it really means?

We’ve heard chapter and verse from the Minister in the chair, Andrew Little, about how it’s at the last election that counts—it’s at the last general election. Well, the National Party has 56 votes as at the last election, and they continue to have 56 votes, notwithstanding that people choose to exercise their conscience or in a matter of local importance. Does it mean repeated voting against the party in a policy sense? Is that what proportionality means?

Again, one can think of examples in history in this Parliament, in the not so recent past, of MPs who have dissented from the party line in a policy sense. I refer to my colleague Nick Smith, who, in the early 1990s, as a new member of Parliament for, I think it was, the seat of Tasman back then, voted against the Bolger Government’s legislation around youth rates, took a stand on the rate of pay for young people. I think of the former Prime Minister, now Sir Bill English, who took a stand on the issue of cutting down indigenous forestry in his electorate in the Clutha—again, reasonably early on in his time as an MP. And, of course, the paradigmatic, much-celebrated example—including by members opposite, ironically enough—of Marilyn Waring, who went to Rob Muldoon in July 1984 and said, “I will vote confidence and supply”, as in I will not bring down the Government, but on the issue of nuclear ships in New Zealand and nuclear testing and, interestingly—something that’s often forgotten—the issue of rape legislation, she said, “I will vote with my conscience.” So is that what it means? That example is celebrated, but is that what distorting proportionality means? Marilyn Waring did not promise to bring down the Government. Ironically enough, Rob Muldoon called an election on the basis that he couldn’t rely on confidence and supply, even though she guaranteed that in his office that night of 14 June, that famous night. But is that what distorting proportionality means? We need to know the answers. If it’s particular examples, what brings one example, one rogue vote, one vote on conscience, or one vote on local policy grounds—what brings it from one example into distortion? Is it two votes? Is it three? Is it four, is it five? We need to know the answer.

The other point I want to make is around whether it is to do with voting against the manifesto. This is a very interesting point, because the Labour Government was elected not on a policy of banning oil and gas exploration. The New Zealand First Party—the member before, the Hon Shane Jones, was chirruping loudly away, the great defender of the provinces, the great provincial champion—they were not elected on a policy of banning future oil and gas exploration, but yet here we are. Here we are. On Thursday, the Government is going to put into this House the Crown Minerals Act amendment bill to ban future oil and gas exploration and send it to committee for four weeks. And here we are. Actually, members opposite often like to tell us, “Well, that’s MMP. That’s the horse trading, that’s MMP.” You know, they make a virtue, an arrogant virtue, out of the fact that we, apparently, on this side of the House don’t understand it. They recite all this cant about how it’s New Zealand’s first true coalition Government, which appears to be an excuse to do what they actually wanted to do in the first place, even though they didn’t campaign on it. In relation to the oil and gas ban, it’s to give effect to the Prime Minister’s worst instincts and, basically, give succour to the Green Party.

So does distorting proportionality mean going against manifesto commitments? You can mount an argument that if you’re elected on a particular—and I know the Rt Hon Winston Peters has made this point before. You could make an argument, I think a plausible one, that if you’re elected on a particular manifesto commitment, you should carry it out. In fact, one of the reasons why we had MMP in the first place is because a series of Governments were elected arguably on manifestos that they did not carry out—from 1984 to 1993—or at least that is the argument for why we have MMP and that it would bring back truth and honesty into politics.

Well, the two major parties in the coalition were not elected on banning oil and gas exploration; they were not. The Labour policy explicitly says that oil and gas permits will continue to be issued and New Zealand First defended it.

CHAIRPERSON (Poto Williams): Relevance!

But yet here we are, so the question is: does dissenting from the party line on a manifesto commitment mean that you are distorting proportionality? A sub-question: if a member of the Labour Party on Thursday votes against the oil and gas exploration legislation on the basis that what they campaigned on was not that legislation, is that distorting proportionality? It’s a legitimate question. The Labour Party did not campaign on that policy, yet they are going to introduce legislation in coalition with other parties and we are going to debate that in this House. I think it’s a legitimate question for the Minister to answer: will members who dissent from that, if any do—one hopes that they do, but if they do—does that distort proportionality?

Final point, and it goes to the reasonable belief. This is not an objective test, OK? This is not something that the courts are going to objectively examine. This is a subjective test. I repeat that the new section 55D(a) set out in clause 5 states “the parliamentary leader reasonably believes that the member of Parliament … has acted in a way that has distorted”. This gives enormous power to party leaders. This is not an objective test. There are so many unanswered questions around what distorting proportionality actually means. We deserve answers.

Thank you, Madam Chair. Firstly, could I please acknowledge the Minister in the chair. We came to this Parliament together in 2011 and although we mark each other off now in the justice portfolio—him as justice Minister—and there are obviously things we don’t agree on, he is a man of integrity and I know that he is finding it very, very tough to have to shepherd this bill through the House. I mean that, because I don’t believe for a minute that unless they had a coalition partner that brought this to the table, he or the leader of his party would be putting a bill like this into this Parliament. He doesn’t fundamentally believe in it. He’s doing a very good job of looking in the mirror and convincing himself, but that’s about as far as it goes.

Actually, the proof of the pudding in this bill—it’s very interesting—is that we have not heard one call from a Government member. Jamie Strange has tried to make a contribution from his chair. Look, he’s a new member, a junior member. It’s highly unlikely that he’ll take a call because they’ve been told not to. But the Hon Willie Jackson, he’s a street fighter. This guy—he is not afraid. He will not be silenced, so I would be very surprised if he doesn’t, after I sit—I’d love to see him take a call. I’d love to see the Minister take a call as well.

I just want to raise one point and I would like the Minister genuinely to stand and respond to this point. It is new section 55A, in clause 5, setting out that vacancies apply to all members of Parliament other than members who are elected as independent members. I would argue that although I am a proud member of the National Party, I will exercise independence if I need to as the member for Rodney. If my own party was governing and there was legislation or a proposal put up that was going to materially harm my electorate, then, in fact, I know that I would have the character and the intestinal fortitude to stand up and fight for the electorate that voted me in and sent me to Wellington to represent their interests and advance their interests as part of a great party, the National Party.

💬 Darroch Ball: Would you leave the party?

I hear again an interjection from Darroch Ball. I would ask him to take a call. Please—you are able to take a call. Please take a call and share what your thoughts are and we will respond to them. We will listen to them carefully and we will respond to the issues that you are raising. So I just invite him to please take a call because the pattern that seems to be emerging is that the Government members are very quick to yell and make comments from their chairs; they don’t actually have the courage to stand up and take a call. Sorry, Madam Chair. I won’t repeat that. I would encourage them to stand and take a call. Make your points.

If we’re talking about proportionality—this is why I want to come back to section 55A, because it relates to independent members. We’ve seen several times around the world Governments that have been formed with a coalition of independent members—and Australia is a classic example. The Government would not have been formed and it would not have governed without a coalition of independent members, and I think that it was four or five independent members. So my question is quite simply this: if the Labour - New Zealand First coalition with the Green Party in support had formed a Government and needed the support of three independent members that also became a part of that Government, and that coalition Government went to try and pass legislation that either one, two, or three of those independent members took a very strong position against, because they felt that it was going to be economic vandalism or it was going to be nanny State - type legislation that was being introduced, and they decided to leave that coalition, then is the proportionality of our Parliament—has it been distorted? Has it been changed?

There are two sides to that question. The first one—and I accept this, I accept that really this is driven by—

💬 Kiritapu Allan: What part of clause 5, mate? Just want the specific section.

Again, if Kiri Allan’s got a contribution to make, I’d ask her to make it. It’s probably a genuinely good one, but at least stand and make it rather than sit there and shout across the Chamber, because the people at home can’t hear what you’re saying, so stand and take a call.

💬 Chris Bishop: It won’t be in the Hansard. Take a call.

That’s right. Take a call. Put it on the Hansard. If you believe in what you’re saying, take a call, and put it in the Hansard. So my question—[Time expired]

Thank you, Madam Chair. Look, I found the members’ contributions largely helpful, and I’d like to respond to some of the questions posed. To the member who’s just resumed his seat, the Hon Mark Mitchell, there is a pretty obvious answer to the question that he has posed, which is provided for in clause 5 in the proposed new section 55A(1), which is it does not apply to independent members. So if there were to be a coalition Government supported by three independent members, and those three independent members decide to go their merry way and do something else and not support the Government of the day, they are free to do that. That has not distorted the proportionality of Parliament. It might have some other consequences but that is the matter.

💬 Hon Dr Nick Smith: They’ve joined a party.

The fact that the Hon Nick Smith would say that independent members somehow by joining a coalition become members of the party suggests to me he doesn’t quite understand how political parties work. I don’t believe that for a moment actually; he does. But that would suggest therefore that his interpolation is somewhat mischievous.

Can I go back to the questions posed by the Hon Nick Smith, as I understood them to be. He made a statement that said that this bill would allow—he gave the example of the Deputy Prime Minister, the power to remove, as he said, any member of Parliament that didn’t agree with his views. It doesn’t give any person in this Parliament the power to do any such thing at all. What it says is that if a member who ceases to be a member of their party resigns, or is the subject of a process within their caucus which requires two-thirds of support of the caucus, and the leader notifying the Speaker, then they cease to be a member of Parliament. You have to get all the elements right, and the suggestion that I think that member made—there are no checks and balances—is just demonstrably wrong.

That member posed a question about Tariana Turia. Well, that member knows that Tariana Turia left Parliament. She left Parliament because she was opposed to what her party was doing and she wanted to re-establish her mandate. She had the personal integrity to do that, and what all members looking on at that time saw, and will reflect upon now and know, is that all of these processes—the actions that members take when they are in the difficult situation of questioning the collective judgment of their party—are political judgments. Dame Tariana Turia, as she now is, judged that what she was being asked to do by her party at the time was unconscionable. Her conscience dictated that she should not only remove herself from the party and from Parliament but re-test her mandate, which is what she did—entirely legitimate political judgments to make. Of course, Marilyn Waring did one better. She prompted an entire Parliament to be dissolved and a snap election to be caused. All of that happened.

He posed the question about the New Zealand Bill of Rights Act. The Attorney-General’s certificate is very clear that this does not compromise the Bill of Rights. Then he asked the question: where is there a constitutional lawyer who agrees with me? I’d turn that question on its head and say that of the 23 self-claimed constitutional experts who put their name to the matter, how many got the analysis right? None of them did because none of them referred to the checks and balances in the bill, but that’s what happens. That’s what happens from time to time.

Now, the Hon Tim Macindoe posed some questions, as well. I’m intrigued by his Supplementary Order Paper 65 that, actually, would hand over the power to the party general secretary or, in their case, the party general manager, which would almost certainly be a breach of the Parliamentary Privilege Act, but I’ll leave it there and say no more anyway.

Mr Bishop raised a question which goes to the heart of this whole matter: what does it mean to distort proportionality? This is a question that has been before the Supreme Court, and the Supreme Court said that if a member of Parliament indicates, because they failed to pay their membership fees, or otherwise shows that they are not a member of the party any more, then that has distorted the proportionality of Parliament—that was the Prebble v Awatere Huata decision. The second kind of response to that is what I said to Dr Smith before: that, in the end, political judgments will be made.

💬 Hon Dr Nick Smith: By the leader—by the leader.

This does not stop politics happening. And Dr Smith yells out “By the leader.” No, Dr Smith has got it wrong again. There is a safeguard on this. It requires two-thirds support of a member’s caucus for this to happen.

I raise a point of order, Madam Chairperson. Thank you, Madam Chair. Look, it just comes, really, to a matter of standards within the House, I suppose. I’d just like to draw your attention to a couple of aspects, and notably one that you ruled on in the last sitting day, as well, with regard to these fine boxes that we have on top of our desks. I note the New Zealand First Party—

CHAIRPERSON (Poto Williams): Ah, yes. I see the evidence.

—still have one up there, and also the Labour Party. In addition to that, if I may continue, with regard to Speaker’s Ruling 16/3—

CHAIRPERSON (Poto Williams): Could I have the Government whip remove it, thank you.

—electronic devices—again, the New Zealand First member with the laptop on the desk. It’s just a matter of standards. I know they are a minor party in this Labour-led Government but it would—

Thank you. [Interruption] Thank you very much. Do you have any further points of order?

First of all, can I thank you, Madam Chair, for giving me the opportunity to make a call in the Electoral (Integrity) Amendment Bill debate. I want to also acknowledge the Minister Andrew Little and thank him for his contribution. I’m none the clearer as to why he’s shepherding this legislation through, and when I look across the other side at the body language and the anguish of the Labour members, they look to me like they’ve got indigestion. They’re just in the process of swallowing the biggest rat of all time.

As we’ve watched this debate develop and we get to the real crux clause of the Electoral (Integrity) Amendment Bill, clause 5, it talks a lot about the power being given to a parliamentary party leader. Let us all be frank: this is about giving power to one parliamentary leader, the Rt Hon Winston Peters, and the only reason he wants this done is because he’s got a record of being unable to control the members of his own caucus. I could spend a full five minutes—

💬 Hon Dr Nick Smith: No—10.

—probably 10—quoting the members who have been a part of a New Zealand First caucus then left simply because—

💬 Hon Willie Jackson: Who?

—they fell out with the Rt Hon Winston Peters. Willie Jackson yells out “Who?”: try Robyn McDonald, Ann Batten, Brendan Horan, Andrew Williams, Denis O’Rourke, Richard Prosser, and, I suggest, Darroch Ball if he dared take a call in this debate tonight. He will be the next.

There is a word that I won’t use. It begins with “h” and it ends in “y” and it explains exactly why we are here with this legislation. I’ve heard Mr Peters and I’ve seen him on television saying the only reason we are pushing this legislation through is that the voters of New Zealand have a right to have the result of election night preserved for that particular Parliament. That’s the only argument Mr Peters continues to advance. Well, then Mr Peters should explain to me why he contested the Northland by-election in 2015 to change the proportionality of Parliament as decided by a general election six months before. Mr Peters won that by-election. He managed to lose yet another seat at the next general election, but that’s Mr Peters’ track record. But he argues we have this legislation to protect proportionality of the votes cast by the voters of New Zealand at election night, and then Mr Peters himself goes and changes that by contesting a by-election.

I say to the Hon Andrew Little, who, I agree, is a man of integrity: did he ever travel to Northcote through the by-election to support the Labour candidate in the Northcote by-election?

💬 Hon Member: No he didn’t.

Yes, he did. He nods his head. He travelled to support the Labour candidate in the Northcote by-election, and if that man had been successful—I’ve forgotten his name—that would’ve changed the proportionality of Parliament. It would have been different, and Mr Little is nodding his head. How can he sit in the House tonight promoting this legislation, the only sound reason for which is to protect the integrity of the vote on election night, and then he’s prepared to join his party, his caucus colleagues travelling to Northcote to try and change that proportionality?

The word begins with “h” and it ends in “y”. I won’t use it, Madam Chair—I assure you I won’t—but I’m sure every listener listening to this debate knows exactly what I am talking about. That’s why, when you look at the other side of the House, Labour members won’t take a call. They know this is about delivering to the Rt Hon Winston Peters, who has a track record as long as my arm of falling out with his own members. That should be a question we’re all asking in the committee of the whole House: why is Mr Peters such a poor person-manager? Why can his caucus not respect him and have a decent debate in their caucus around issues? Why can’t the New Zealand First caucus operate like every other caucus that I’m aware of, whereby you put issues before a caucus, you have a debate and the debate comes to a conclusion, and the members of that caucus accept the result of that debate? That’s not the way it happens in New Zealand First—we know that. We know that because we know the party rules change. There was recently the example where they had to pay a $300,000 commitment if they left Parliament. Mr Peters said they did, and then when it was the subject of a potential investigation by the Privileges Committee—

CHAIRPERSON (Poto Williams): Order! I apologise for interrupting the esteemed member, but the point of order that was raised with the Chair just a few calls ago now applies to the National Party. Could you attend to that, please? I call the Rt Hon David Carter. Thank you.

I thank you, Madam Chair. Now, what I was arguing about is that every caucus here should be about debate. It should not be about total control by a parliamentary leader, and that parliamentary leader should not be allowed to justify this legislation on a basis that is false, on a basis that this is all about maintaining the proportionality of Parliament as it is delivered by the voters on the night of the election, because otherwise there would be no point in having by-elections. If you took the case of Northcote, the Hon Jonathan Coleman resigned. Well, the only way you can preserve the proportionality of election night 2017 is just for National to reappoint somebody into that. Now, I hope Mr Peters isn’t going to suggest that’s the way we should do it. I hope Mr Little is not going to suggest that that’s the way we should do it, because by-elections are healthy. They give the electorate a chance to make comment on who they want to represent them going forward, and by-elections occur for a number of reasons. It could be the death of a member. It could be the resignation or the retirement of a member. I’ve seen them both, and the electorate then deserves the chance to have a say. But, in having that say, it changes the proportionality—or potentially changes the proportionality.

So why did Mr Peters ever contest the Northland by-election? I want a New Zealand First member to stand and tell me that, because, in contesting the Northland by-election, he went out vigorously to attempt to change the proportionality of Parliament, delivered by the voters of New Zealand in general election 2014. From memory, that by-election was six months after that, and Mr Peters went out to change that proportionality, and he successfully did so. He was then the member for Northland for, perhaps, 2¼ years—almost a record for Mr Peters. Almost a record for Mr Peters; he’s not one that maintains good connections with electorates, but that’s not the point I wanted to make tonight. The point I want to debate is that this piece of legislation is bad legislation.

In the next couple of weeks, I travel back to the Inter-Parliamentary Union (IPU), and members of the Inter-Parliamentary Union—46,000 parliamentarians from right around the world—will know that New Zealand has passed this law, and they’ll know the company that we’re then in. New Zealand had a very proud record of operating one of the most open, transparent, and accountable democracies in the world, and what Mr Little’s legislation does, what the Rt Hon Winston Peters’ legislation does, is put us into the same category as Zimbabwe—into the same category as Zimbabwe. And I tell the Hon Andrew Little: if he thinks that that will go unnoticed by members of the IPU, then he’s not correct.

This legislation is shameful legislation. It is there for one reason only, and that is to protect Mr Winston Peters, who has a track record of losing control of his caucus, and we saw it in 1996 to 1999. We saw it with the Labour Government of, I think, 2005, from memory. It’s a track record that he should not be proud of, but he shouldn’t be forcing legislation into this House tonight that forces every other parliamentarian to abide by his rule, which is simply a lack of ability to gain the respect of his own caucus members.

I move, That the question be now put.

Now, the previous speaker, David Carter, referred, in relation to this bill, to a word starting with “h” and ending with “y”, and I racked my brains as to what he could be meaning, and I think it might be “history”, because history explains this piece of legislation. It’s all about what has happened to Winston Peters and New Zealand First over the years, and he’s lost control of his caucuses, and the normal course of democracy is to handle this in this way: so if Tuku Morgan—remember some of these names?—Tuariki Delamere, Alamein Kopu, if people like that leave their party midway through a three-year cycle and vote with another side, the electorate gets to decide and make a judgment on the wisdom or otherwise of that move at the end of the three-year cycle and vote them out. When Rod Donald and Jeanette Fitzsimons did that, the electorate decided that, actually, they did the right thing, and the Greens stayed in power. And I see some members of the Greens here, and they should be hanging their heads in shame, because that was the formation of their party.

So the system works. If people leave their party, they have to face the judgment of the voters at the end of the three-year cycle. If they’ve done a good job, they will survive. If they haven’t, they will be kicked out. So the question I have for the person in the chair is: what is the problem that we’re trying to solve here that isn’t being solved effectively? So this clause talks about the leader reasonably believing that the member is going to distort the nature of Parliament. And we have to say, “Well, what is Mr Peters so worried about?” Is he worried that Shane Jones, for example, would support, say, the region of Taranaki over oil and gas and cross the floor and distort the nature of Parliament? Well, he should be much more confident in the nature of his MPs. Is it Darroch Ball going across and not supporting this Government’s move to hurt small businesses by bringing in 90-day trials, for example? Or would it be Tracey Martin suddenly finding her conscience over charter schools? Or would it be Ron Mark deciding that, actually, we need to make a living in this country and we’re not going to support the Greens’ policy of not having any mining on the conservation estate?

All these issues are issues that are, naturally, debated and argued within caucuses and sometimes, in very rare instances, members of Parliament decide either to cross the floor or, ultimately, to stand by their conscience and defend what they see as the principles that they were elected upon. And this clause in this legislation would give the party leader the ability to flush them clean out of Parliament and usurp the right of the electors of New Zealand to make that judgment. When I look at what’s happened here, you can’t help but conclude that this is all part of the deals that are going on in this Government. So there’s no question that today we’re having introduced into Parliament an oil and gas bill in Taranaki, that, by some measures, is going to cost $7.9 billion and, in some ways, that is the cost of this bill, because there was a clear deal done. New Zealand First gets the waka-jumping bill; the Greens get the oil and gas bill.

So the Greens are sitting there munching away on a hairy dead rat, which they have to chew on—

CHAIRPERSON (Poto Williams): I think we might be straying slightly.

Tim van de Molen: It’s tahr, not a rat.

Sorry, Madam Chair. It might be a tahr; maybe it was a tahr? But, in order to support this bill, which is against the very core of what the Green Party has stood for, they are supporting this bill in order for New Zealand First to support the oil and gas bill, which goes against the total grain of what Shane Jones, for example, talks about when he talks about supporting Taranaki. We see again that that is the nature of this Government. We’ve seen it again recently over refugees, and no doubt there’ll be some changes to the industrial relations bill. These sorts of dirty deals going on is what is undermining the confidence in this Government and in this economy—

💬 Darroch Ball: What did you do in Epsom? What did you guys do in Epsom? You don’t want to talk about it.

CHAIRPERSON (Poto Williams): Order! Order!

Madam Chair, I would say—

💬 Darroch Ball: Bring me into the debate, come on; address me. What about the deal in Epsom?

CHAIRPERSON (Poto Williams): Order! I would ask Mr Ball to not be so vigorous in his interjections unless they’re going to be useful to the debate. It’s just barracking.

Thank you, Madam Chair. Do I get my 10 seconds back, because I just lost 10 seconds? But Mr Darroch Ball, the point I want to—[Bell rung] Well, I’ll leave it there.

I want to focus my comments on new section 55D(c), inserted by clause 5, as to the procedures which are taken when Mr Peters decides that he doesn’t like Darroch Ball and wants to throw him out, but first I want to make two brief points. The first is that the Minister was very adamant that his interpretation of the New Zealand Bill of Rights Act and that of Mr Parker were superior to the 21 or so—

💬 Hon Dr Nick Smith: Twenty-three.

—23—constitutional experts, and so I wonder what his response would be to this proposition: in Taylor v Attorney-General, Mr Taylor applied to the court successfully for a declaration of non-compliance with the New Zealand Bill of Rights Act. Were this legislation to pass, I wonder what his approach would be to this idea that I had whilst sitting in the Chamber: that we all apply to the High Court for a declaration as to compliance with the New Zealand Bill of Rights Act. And what would happen if there was a declaration of non-compliance? That’s a matter that he and I could perhaps discuss at some stage, because I think that that could be a very interesting way in which we test New Zealand Bill of Rights Act propositions in due course.

I do feel sorry for the Labour Party. I’m on record as saying on a number of occasions that they are my adversaries; they’re not my enemies. I have great respect for the history and tradition of the Labour Party because the Labour Party, being a real political party as opposed to one which adopts the führer principle for the way in which it conducts itself, is a party deserving of respect. The Labour Party well know that over the years, people like Gerald O’Brien or Mel Courtney have walked out of the Labour Party because they were not selected or because of various problems, and, at the next election, they were thrown out. The same applies to Brian MacDonell and John Kirk. They walked away from the Labour Party in the last few years of the Muldoon administration. I think they supported the National Government on a number of matters relating to the Think Big projects, but, come the 1984 election, they were swept away.

Jim Anderton walked away from the Labour Party because of his objections to Roger Douglas’ economic policies, and he was back in 1990 as the MP for Sydenham. So the Labour Party’s always tolerated dissent. John A Lee’s another one, I suppose. So they’re in a difficult position, but I do have to say that I have some sympathy for them.

💬 Hon Member: I don’t.

Well, when you’re dealing with the devil, these are the sorts of problems one faces.

Let’s come to new section 55D(c), and that deals with the confirmation by at least two-thirds of the parliamentary members of a party that they agree that written notice should be given to the parliamentary leader. In a real political party, like the National Party or the Labour Party, before such a Draconian step would be taken to remove a member of Parliament not only from one’s caucus but also from the Parliament, one would expect that there would be a genuine and hard-fought debate, because members would agree that the step that was being taken was a very serious one warranting very careful consideration. But in a party like New Zealand First, which revolves around this sort of latter-day Sun King where people either agree with him or are exterminated—because, as I say, it’s a party that operates according to the führer principle—there is no opportunity for people to stand up, because if one is a Brendan Horan or an Andrew Williams and dares to raise one’s head above the parapet, then they will be gone. That’s the sad reality of the matter.

I can’t imagine such a political star as Tracey Martin taking a different view from anything her leader says, because she knows full well that her future in this place is dependent on his whim. It’s not a real political party; it is a party which is based on one person. It has always been based on one person, which is why there’s never been a change of leadership, there’s never been robust debate within the party, and anyone who stands up against him, as I say, has been taken out and shot. So while I have no doubt at all—

CHAIRPERSON (Poto Williams): Order! Order! That’s a little extreme, I have to say.

Well, in a political sense it’s not too extreme at all; it’s a very accurate assessment of just the kind of principle that we’re dealing with.

I want to challenge a couple of the propositions that were put forward by the Minister that are very Animal Farm - ish in terms of the context of clause 5. The first of those is that the Minister in the chair, Andrew Little, said this is all about retaining the proportionality of Parliament, but then we see, in section 55A, that the provision does not apply to an Independent member of parliament.

Now, this is not academic. I proudly represent the constituency of Nelson, which was represented by Harry Atmore, the longest-serving Independent member of this Parliament. Harry Atmore, in his later years, joined up with the Labour Party. Now, if an Independent member joins a political party, that distorts the proportionality of Parliament. That is not provided for in this part, and the member in the chair needs to explain that.

And here’s the second bit that is so Animal Farm - ish. Guess who clause 5 of this bill does not apply to? Party leaders. There are five members of Parliament, in this Parliament, who are not covered by this provision. You may think that’s academic; it’s very real, because, of course, this was the law once before, and a member called Jim Anderton was a leader of the Alliance. In almost a repeat of history, the Alliance blew apart when the Government of the day made a decision to send troops—

💬 Hon Willie Jackson: Jim jumped ship.

Willie Jackson was here, and here’s the words—the words from the horse’s mouth. Willie Jackson just uttered them, and that was that Jim Anderton jumped parties. He left the Alliance, and he joined the Progressive Party. Here’s my question: did clause 55A, which we’re debating, mean that when Jim Anderton, the leader of the Alliance, left and joined the Progressive Party—did he get dismissed from this Parliament? No, he did not.

💬 Hon Willie Jackson: He should have done.

And he did not, because he was the leader. The member Willie Jackson says he should have been. Well, let’s see whether Willie Jackson—there’s an amendment in my name, Mr Jackson, that says that if that incident occurred again, he would be dismissed, because my view, Willie Jackson, is that if you are going to pass this Draconian provision—

CHAIRPERSON (Poto Williams): Order! Can I just check that the Supplementary Order Paper that the member is referring to is not the one that’s been ruled out of order.

Correct.

CHAIRPERSON (Poto Williams): Are you talking about Supplementary Order Paper 56?

The Supplementary Order Paper in my name.

CHAIRPERSON (Poto Williams): Number 56, which has been ruled out of order. So we’re not accepting debate on that.

Well, doesn’t that say it all? Doesn’t that say it all that, when members on this side of the Chamber—

CHAIRPERSON (Poto Williams): Order! That was ruled out at second reading.

💬 Brett Hudson: 61, Nick—number 61.

Can you check Supplementary Order Paper 61?

CHAIRPERSON (Poto Williams): OK. Thank you. Yep, carry on.

Madam Chair, I hope you’ll extend my time on that point, because it was actually very important. Here’s the point: Willie Jackson has said it was a rort when Jim Anderton drove a bus through this very provision of clause 5 and was able to stay in the Parliament despite leaving the Alliance, and we’re attempting to correct that. Willie Jackson has challenged me to do so. Will Willie Jackson follow through on his word and vote for my amendment?

💬 Hon Mark Mitchell: Support 61, Willie.

CHAIRPERSON (Poto Williams): Order! Use the member’s proper name.

Mr Jackson challenged me on that very point. We have produced the amendment. Here’s the truth: the truth is that clause 5, under this bill, does not apply—does not apply—to leaders of political parties.

And here’s the other interesting feature that Willie Jackson may also be interested in. Do you know which other members are going to be able to leave their political party without any accountability? If you’re in a small party. Let’s take the Māori Party. It had two MPs in the last Parliament. Let’s say that either of those two members had decided to resign from the Māori Party and form a new party—let’s call it the Mana Party; we had one of those too—would they have been subject to this provision? They’re distorting the proportionality of Parliament. They would not, under clause 5, have been able to be dismissed, and that just exposes how opportunistic and how bizarre these provisions in clause 5 are.

The last point I want to make is with respect to the Minister in the chair making reference to section 55D and claiming that this is not a power. The Minister in the chair said, “No, no. These powers don’t rest with the leader; they rest with the caucus.” He is wrong, and I ask members to look at section 55D and exactly what it says. It says the only person in this Parliament who can initiate the proceedings for sacking a member of Parliament is a party leader, and a party leader alone. So even if any one of the caucuses in this Parliament decides by 90 percent majority, if the leader doesn’t agree, it cannot happen. And here’s a very significant word, Minister in the chair: the word in section 55D(c) doesn’t say the power rests with the caucus. The caucus simply has the role of “confirming”—“confirming”—the decision of the leader, not making that decision in their own right.

I put the practical lawmaking to the test. Let’s say Marilyn Waring was facing a two-thirds caucus vote and a dismissal by then leader Sir Robert Muldoon. Would two-thirds of the caucus members have voted for Marilyn Waring to go? Every member of this House knows the caucus would really have had only two choices: back the leader or sack the leader. Let’s take the equivalent situation of Jim Anderton. In 1988, as Jim Anderton put it, the party left him; he did not leave the party. I ask members opposite—Willie Jackson—when Jim Anderton took that stand, would two-thirds of the majority of the caucus have backed David Lange to have had Jim Anderton kicked out of this Parliament, and would that have been just? I think every member of this House knows that Jim Anderton would have been gone. That would have been unjust. That would have been bad for democracy. Or let’s take a more recent scenario with Helen Clark and Tariana Turia. If Helen Clark had moved a motion to dismiss Tariana Turia from the Labour caucus when she chose to take a very brave stand over the issue of Māori rights in the foreshore and seabed, how many members of this House really believe that two-thirds of the Labour caucus of that time would not have voted to back Helen Clark and to throw Tariana Turia out of this Parliament?

It is those examples that reinforce just how serious this clause 5 is for the rights of parliamentarians. It actually goes all the way back to the Bill of Rights—the Bill of Rights that said that parliamentarians (1) must have an absolute right of free speech in this House and (2)—very importantly—the only people who should have the right to dismiss a member of Parliament are the voters, not a leader of a political party. When members opposite hide their heads in shame, they do so properly, because what we are doing in this clause 5 is undoing over 350 years of parliamentary history for rights that people lost their lives fighting for and for rights that are so important that every time this new Parliament resumes, we celebrate the Bill of Rights and the privileges and the freedoms of speech that go with it, which are being undermined.

Here’s the part that I find extraordinary. When you have the Minister in the chair admitting that this bill—this clause—will have a chilling effect on the freedom of speech of members of Parliament, how can any member in this House, in true conscience, bring themselves to vote for a bill of that sort? My colleague Chris Finlayson said earlier in this debate that, yes, we have some passionate arguments in this Parliament, but when it comes to those basic rights of freedom of speech and of our Parliament, I would have thought that we were united—absolutely united—such that when there are times when I disagree with members on other sides of the House, I will defend to the death their right to be able to express those views, because they are at the core of our values in a liberal democracy. So I again challenge the Minister in the chair to say why—why on earth—would this Parliament want to progress this clause 5 that will have a chilling effect on the free speech of members of this House.

Why would we want to pass a bill when the Green Party, in true honesty, has said that this clause is a threat to democracy and is a Draconian provision? I challenge that Green member in the Chamber to reflect on her conscience, and say that if she votes for this clause, it will for ever be a black mark against her and her right to be able to champion for human rights. How can you possibly travel to the corners of the world—[Time expired]

I move, That the question be now put.

Thank you, Madam Chair. It’s a pleasure to speak on clause 5 of this, the Electoral (Integrity) Amendment Bill. Not only am I going to speak on the bill and that clause but I’m going to speak on new section 55A(1) in clause 5—and, in fact, one word only of that section I would like to focus on in my contribution, Madam Chair, and I hope you feel that’s specific and precise enough.

I am going to focus on the word “applies”. “(1) This section applies to every member of Parliament, except a member elected as an independent.”, and it is the present tense of that verb “to apply” that this section applies, here and now, from the date of commencement of this legislation that I will focus on, in five particular ways: first, a rule of law analysis on the evils of retrospectivity in matters of constitutional law; second, a contract or civil law analysis along the lines of variations to contract being made unilaterally; third, a democratic mandate analysis in terms of the commencement of this bill following an election; fourth, a sporting analysis along the lines of changing the rules of the game halfway through; and, fifth—if time allows—a Britpop analysis along the lines of the Oasis doctrine “Don’t Look Back in Anger”.

First, on the rule of law: retrospectivity is generally a bad thing so far as the rule of law is concerned, if you’ll excuse my use of the technical terminology “bad thing”. It is a bad thing to change horses midstream. It is a bad thing to say to those who are under way in a waka—that represents a party and a set of parliamentarians who were elected—that “You cannot jump out of that waka when you are halfway through, because that waka set sail from the shores at the time of the last election.” In passing, I note that it’s not so much a waka-jumping but a waka-pushing that would take place in such circumstances.

So, bearing in mind that this section applies—again, to use those words from section 55A, subsection (1), as it will become—and on the basis of perhaps another concept of the law, a civil or contract law analysis, for those of us who believe that we have some kind of contract with the voters of our respective electorates and, indeed, the electorate of New Zealand as a whole, whether we are members of Parliament on an electorate basis or as list MPs, we have a contract, we have a promise with the people, and, as such, we have two parties that have entered into that contract. It is a meeting of the minds freely entered into, and so a unilateral variation of that contract—a setting of different rules halfway through while the contract is still alive by Parliament—would be a unilateral term of the contract that has not been agreed by the voters. They have not had a chance to exercise their judgment on this by way of voting on the mandate of the party to bring about this particular change to the contract.

It’s a meta - broken promise because it’s not just about promises that are made at an election. This affects all the promises that are made and, in itself, it is a broken promise. It is a promise to hold a contract and not to vary its terms halfway through, but, in fact, that is exactly what is happening through this pernicious piece of legislation that we find on the Order Paper now and to form part of our constitution going forward.

My third point relating to a democratic mandate: the basis on which candidates are selected for an election by their respective parties or, indeed, as Independents, as has already been discussed, is affected by the introduction of this bill. To the extent that candidates were selected ahead of the 2017 election and then duly elected by the people of New Zealand—and I note that all members in this Parliament were elected by the people of New Zealand, again, by one path or another—to the extent that that relies upon promises that those candidates made to their respective people that they would fulfil in this House; and to the extent that that is curtailed by the imposition of discipline by party leaders, whether or not confirmed in any real way by those members of Parliament who are also part of that party, it does represent a breach of the electoral mandate, the democratic mandate, because this is something that has come before the Parliament that will affect the Parliament and will, therefore, affect the people if this is a House of Representatives and the people who are represented by this House have had no chance to have their say in an election manifesto on this point.

I move now to my fourth point, which is somewhat of a sporting analysis, and it goes, again, to fairness. It goes, again, to that word in new section 55A, “applies”—“This section applies”. It will apply now, in the present tense, once this bill passes into law. This bill, when it becomes law, if it becomes law—and I very much hope, as we do on this side of the House, that it will not become law—will apply from the day after it receives the Royal assent. So it is very much a live and a very significant aspect of the legislation that section 55A, subsection (1)—or “clause”, as it now is, and “section”, as it will become—applies in the present tense.

So to any New Zealanders who are interested in this subject, who are interested in parliamentary democracy, and who are interested in having their voice heard through their representatives but who perhaps don’t understand or care to follow the constitutional ins and outs and can’t perhaps adjudicate between the rights and the wrongs of those who say one thing and those who say another, and I note that there’s a significant divide of 23 versus one, which is hardly a fair fight between various constitutional experts—“self-proclaimed”, as Minister Andrew Little would say, with himself on the other side of that.

To Kiwis who don’t want to get into all that but are happy to understand a sporting analogy, you can’t change the rules of the game halfway through. You can’t change at halftime the rules of the game, the number of points that are awarded for a try—if you will excuse me resorting to rugby union or my personal preference, rugby league, by way of analogy. You can’t have the twelfth man come on and open the bowling at the start of the innings when he or she wasn’t a member of the line-up, batting in the first innings. You can’t have a section that—

CHAIRPERSON (Poto Williams): Order!

—applies to every member of Parliament—

CHAIRPERSON (Poto Williams): Order! If you could just substitute “you” for “one”, it would be great. Thank you. Or “one” for “you”.

I beg your pardon, Madam Assistant Chair. One cannot—one cannot, indeed. And I mixed up my metaphors, somewhat horribly, sporting-wise. Indeed, we’ve covered a lot of ground, but it’s all a pretty broad treatment but a very precise point is being made around that one word within section 55A(1) “This section applies”. In the present tense: from the point that it becomes law, this section will apply.

My Britpop analysis, as I promised, is the Oasis doctrine: “Don’t Look Back in Anger”, and yet, clearly, this bill is an exercise in looking back in anger by Winston Peters and his party. They’re looking back to the history—and we’ve heard some of the political history of those who have jumped the waka or who have been pushed from the waka or who would have been pushed from the waka if this bill had been in law at the time, and who didn’t have the opportunity to say that they wanted to remain in the waka. They wanted to keep paddling—maybe in the same direction as the manifesto that they had actually stood on, notwithstanding that the party or perhaps the party leader had abandoned it. Maybe the party leader had changed direction, had changed the course of the waka.

So they’re looking back in anger, those who are on the other side of the House, and I think they’re probably reasonably singular in number, notwithstanding that the influence goes across all the governing parties, to the eternal shame of some who should know better, who do know better, than to propose and support a piece of legislation that at its heart is retrospective in an area of our constitution that should not be retrospective. It should not be a matter of retrospectivity that the rules of the game, the laws of our Parliament, and the laws that apply to all the parliamentarians should change halfway through. That much is anathema to our basic concept of the rule of law. We don’t change horses midstream without risking a constitutional drowning. We don’t allow the pushing from a waka or the jumping from the waka under rules that were not agreed to and were not part of the game that were played by all the political parties and all its players at the time of the last election.

We don’t unilaterally vary contracts, because that would be unfair to one side or another. It would represent an imbalance of power, and I’m not talking about an imbalance of power across this House between Government and Opposition; I’m talking about an imbalance of power between certain parliamentarians, certain parties, certain leaders within certain parties, and the people whom they are supposed to represent—that is the power imbalance that is represented by such a change of rules on which they have had no say, leading into an election, by which we are now, it is proposed, all to be bound going forward. That is the heart of lack of mandate.

I’ll finish on this note, by way of summary: at the last election these rules were not in force. It’s proposed that they will be in force at some unspecified but soon to be effective date whereby, if we pass this law, the rules will have changed, the game will have changed, the players will be playing a different game, and those who are affected by the game will not have had a chance to have their say.

Thank you, Madam Chair. I’d like to take this opportunity just to respond to some of the points raised in the last clutch of speakers. I will respond seriatim to the points that have been raised.

The Rt Hon David Carter raised the issue about changes in the numbers amongst parties caused by the result of a by-election, particularly when, in a by-election, a member from a different party from the party that has vacated the seat is elected. We saw that in the Northland by-election—and he posed the question about what if it had happened in the Northcote by-election. Yes, it would’ve changed. But the whole point is that that is the verdict of the electorate. This bill is about confirming that those who sit in this Parliament are here as a result of the decision of voters, not on the individual whim of members once they get here to decide to go on a frolic of their own and do what they like. The voting public of New Zealand are entitled to expect that when members are elected here under a banner, they stay under that banner. I regret that he is concerned about what his friends in the Inter-Parliamentary Union might think, but this is a Parliament under this legislation that will maintain its integrity.

The Hon Paul Goldsmith asked the question: what is the problem being solved? Well, the problem being solved is that we do not have in the legislation that makes up our constitutional arrangements a confirmation of the fundamental principle of MMP, which is that the proportionality of party representation is paramount. So this will fix that problem.

My good friend the Hon Chris Finlayson posed the question deriving from Taylor v Attorney-General: what if members of a party went to our courts seeking a declaration of non-compliance with the New Zealand Bill of Rights Act? Of course, on our side of the House, we would have no problem, because we are about to legislate for exactly that possibility, and maybe Mr Finlayson and his party will be the first to take an application under the changed provisions that we will legislate for. He might want to use the services of Arthur Taylor, who has proven himself to be very adept at applications such as this. His application, of course, was challenging a piece of legislation from the previous Government that deprived those prisoners—those who were there for a short term—of their right to vote, which, of course, is iniquitous in human rights terms but about which that party has so far said nothing.

The Hon Dr Nick Smith continues to make his contributions, and I think he misunderstands some fundamental precepts. So, for example, a member elected to this Parliament as an Independent can choose at any time which way they vote, whether it’s with the governing party or the opposing party or parties. So when an Independent—someone elected here as an Independent—makes some arrangement to stick with the governing parties or the governing coalition and if they then change their mind, there is no distortion of Parliament because the electorate electing an Independent MP has no expectation about the consistency of that member voting. So there is no disruption, and that is why that exception appears in the bill as it is at the moment.

He raises concern about whether or not this bill applies to leaders of parties. I quote to the Hon Dr Nick Smith the opening words from new section 55(A)(1), in clause 5: “This section applies to every member of Parliament,”—this section applies to every member of Parliament. He would know that the constitution of this Parliament means that you cannot be a leader of a political party unless you are a member of Parliament—actually, you can be a leader of a party and not be a member of Parliament, as Russel was.

💬 Mark Patterson: Russel Norman.

Russel Norman. Russel Norman started his political career as leader of the Green Party outside of Parliament, and then he came to Parliament and continued as leader. But if you are a leader of a party inside this Parliament, you are a member of Parliament, and you are therefore subject to this bill. That is what that does. So I make this point about Dr Smith’s most recent contribution and point out to him that the fundamental contradiction that he has is that according to him when you’re in this Chamber and a member of Parliament, you are fiercely independent, and you have the right to do whatever you like, but, somehow, you lose that independence and that courage when you’re in your caucus—I don’t believe that for a moment. As other members in his party have said, when you get to caucus, you have good, tough, robust discussions. I expect all caucuses do, and I don’t have the same cynicism that he has about those issues.

To Mr Penk, I simply say this: the contract is with the electorate to maintain the integrity of this House.

It’s a pleasure to speak on this “Mugabe-Zimbabwe Bill”. It’s the political equivalent of the underarm bowl—there is actually a Wikipedia page about that. I hear the Hon Andrew Little talking about him having integrity, but he is supporting a bill that is the equivalent of the underarm bowl.

Now, I want members opposite to look up the words “cognitive dissonance”. I’ll read it out. It’s: “the mental discomfort (psychological stress) experienced by a person who simultaneously holds … contradictory beliefs, ideas, or values.” Now, the Hon Andrew Little is the definition of cognitive dissonance.

I’ve had 24 years interviewing and investigating people. I’m a reasonably good reader of body language, and I’m watching the Hon Andrew Little sitting at his desk and he’s gritting his teeth. He’s taking a deep breath. I saw him a few weeks ago in the House look up to the boss—Mr Winston Peters—and I could see that he was thinking to himself, “This guy gave me a hospital pass, and he’s exempt. He’s exempt.” So he’s gritting his teeth, he’s hunched over, he’s fighting the good fight, and he’s taking this underarm bowl bill through the House.

Now, I want to refer to James Shaw. A while back he talked to us about—

CHAIRPERSON (Poto Williams): I apologise to the member. The time has come for me to leave the Chair for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

I talked previously, before the break, about the hospital pass that the Hon Andrew Little got from the Rt Hon Winston Sp—Winston Peters—but I want to talk about—

💬 Hon Member: Where have you been?

No—only drinking juice in the break. Now, the funny thing about this bill is that the leader has got to notify the Parliament that they’re going to kick someone out. So in this bill the leader is exempt. So the leader can’t be kicked out. You’re not going to have a leader that’s going to kick himself out. So it’s interesting that Winston Peters has exempted himself from this bill.

Now, we quoted from Rod Donald, the very honourable and well-respected former Green MP, and we quoted him about the flaws in this bill—the major flaws in this bill. I remember that James Shaw said that we were waving a dead man’s hand. He got quite offended. But I think that quoting from Rod, using his quotes and the exact words that he used about this sort of bill, is actually showing respect to the man. I notice that a lot of the Green MPs, or most of the former Green MPs, have slammed this bill. I believe that if this was a true blind ballot, this bill wouldn’t get past the first hurdle because it’s a shameful piece of legislation, devoid of integrity, devoid of valid reasoning, devoid of support.

In the Northland by-election in 2015, when the Rt Hon Winston Peters got elected, that changed the representational proportions. It changed everything around. In the German situation they would lose a list seat.

💬 Hon Member: Make your own points.

Their own laws—yeah, they’re MMP. They would lose a seat. So the first opportunity, and he’s going against what he did in 2015. Thankfully, I won in 2017.

Now, it’s against the democratic will of the people. It’s opposed by every submitter, every constitutional expert—every constitutional expert. So the Hon Andrew Little is arguing against every constitutional expert. That’s that cognitive dissonance, because I know that he knows that it’s wrong, as do all the academic scholars, even the Clerk of the House and all the former Green MPs. So, truth be known, the only one that really, honestly supports this bill is the Rt Hon Winston Peters, and we know why he’s supporting it.

💬 Hon Scott Simpson: Darroch supports it.

Darroch Ball might be supporting it as well. I guess what concerns me—oh, the clock’s not on. I can speak indefinitely. [Interruption] I’m going, I’m going. OK. I’ve got all night—I’ve got all night. [Interruption] OK. It’s a power grab. This is a power grab.

I want to talk about some of those New Zealand First MPs over there, because I’ve got to know them and some of them—some of them—are actually really nice people. I want to talk about one of them: Mark Patterson. Now, Mark Patterson—he’s a true-blue bloke. The reason why I say that is he used to be a Nat. For 15 years, he was a branch chair in the deep Clutha-Southland area. He’s hard-core blue.

💬 Hon Scott Simpson: He’s a waka jumper.

Yeah. He didn’t make the cut with us. So now he’s New Zealand First’s MP. If I were him—[Time expired]

I move, That the question be now put.

Thank you very much, Madam Chair, for the opportunity to speak to one of my Supplementary Order Papers which I have tabled in regards to the Electoral (Integrity) Amendment Bill, which is currently being debated here in the committee stage. My Supplementary Order Paper 64, which I would like to discuss and propose—and I propose it with integrity. I also propose it with the hope that this Government will pick it up, because I hope that it will go towards their goal of openness and transparency, which they have spoken about with such high ideals since coming into Government.

So my Supplementary Order Paper amends clause 5 by inserting new section 55D(ca) after paragraph (c) which states “that parliamentary members of the party agreeing under paragraph (c) have done so by way of [a] secret ballot;”. Now, members will note that in clause 5, under section 55D(c), it states “that, after consideration of the conduct of the member and his or her response … by the parliamentary members of the political party for which the member was elected, the parliamentary leader of that party confirms that at least two-thirds of the parliamentary members of [the] party agree that written notice should be given by the parliamentary leader”. Now, members will note that it says “at least two-thirds of the parliamentary members of that party agree”. This bill, as it is currently drafted and as the Minister Andrew Little will understand, does not define how that two-thirds majority of parliamentary members of that party must then be shown to the Speaker of the House. It does not show how the party leader is to provide that evidence.

There is a clear gap here in the bill, which requires transparency, but also it should be done in a way which allows individual members of the party, in the party room, to be able to make a free choice. When I go to the ballot box every election, and as New Zealanders go to the ballot box each election, we do so by way of a secret ballot. I walk into the booth, New Zealanders walk into the booth, and it is a secret ballot. What this Supplementary Order Paper ensures is that when MPs are in the party room and are being asked to vote on whether one of their members should be expelled, that vote should be done by way of a secret ballot. What that does is that ensures and provides a greater level of accountability that the process is not one by which the leader of the political party is forcing his or her will upon the members of their caucus, and allows those members to give a free vote based upon their conscience. I would argue that this is incredibly important in a parliamentary democracy and inside all of the caucuses that we have here in Parliament. What this does is ensure that we don’t have these decisions being made behind closed doors and, potentially, in the vape-filled rooms of the Green Party, where we don’t understand what the processes might be, but this ensures that the parliamentary caucuses have to have a secret ballot whereby these votes are undertaken.

I hope the Government and I hope the Minister will take this Supplementary Order Paper up, because I believe it is not just something which is about scoring a political point. This is about actually proposing an idea which will make—if this legislation is passed. We will not be voting for it, but if it is passed, it should be done in a way which is more open, more transparent, and in a way which protects the integrity and the individual freedoms of members of Parliament. That is why I am proposing this Supplementary Order Paper, which will do just that.

So my question to the Minister is: how can he ensure for the House and New Zealanders and, in fact, the democracy of New Zealand that we will not be seeing party leaders, in essence, forcing their members to make a decision? How will he ensure that they’re not being forced? How will he ensure that they are making free decisions behind those closed doors? My suggestion is that a free vote, a secret ballot being required and then being proven, is something which will do just that. Thank you very much, Madam Chair.

Thank you, Madam Chair. I appreciate the opportunity to take a call here tonight. I’d like to speak to my Supplementary Order Paper (SOP) 60, which seeks, after new section 55D(d), to insert new section 55D(e), which reads, “state whether the party for which the member was elected to has a board of directors and, if so, that after consideration of the conduct of the member, they have agreed by majority decision”—that is, the board of directors—“that written notice should be given by the parliamentary leader under section 55A(3)(b).”

What this SOP does is ensure that the removal of a member from a parliamentary political party is not solely at the discretion of the party leader and wider caucus and that the governing body of the respective party agrees with this removal. Why would this be important to insert? If we glance around the committee tonight, we can see who does and who doesn’t have a governing board. We know that the National Party does. We know that the Labour Party has a governing body and a council. The Greens have some sort of executive arrangement—to be honest, I’m not exactly sure what the Greens have. The ACT Party has a president. We know for sure that New Zealand First has a board of directors. How do we know this? I’ll refer to how we know this at the end of my few short words.

What do boards of directors do? They establish policies for corporate management and oversight of an organisation, they collectively direct companies’ affairs, and they oversee the activity of an organisation. I’ll repeat that again: they oversee the activities of an organisation. So what they do is very much hold to account, and with scrutiny, any sort of rash leadership decisions that come out of management. They look towards sound and rational and reasoned decision-making on behalf of the entity which they oversee. What we see and what we very much hold to on this side of the House is that there is another, serious level of scrutiny needed in this particular bill. We don’t agree with it, but if by chance this thing gets through, where is at least another, serious level of scrutiny?

Winston Peters constantly referred back to—this is me referring back to my earlier comments about who here in the committee tonight has a board and who doesn’t—his board when we were attempting to put together a Government here in New Zealand post the election. Now, we all know—and if you cast your minds back to almost exactly a year ago—post - 23 September, he constantly referred to his need to refer back to his own board of directors. In fact, one might cynically say he used it as a scapegoat when it was convenient. He held up the most important decision in this country—the make-up of New Zealand’s Government—by using the line that he needed to keep referring back to his board.

What we have here in New Zealand is a coalition that is so unwieldy at times that one does need to refer back to, again, the principles of sound, rational, and reasoned decision-making. In our books, a board of directors can cover that base. Winston Peters didn’t show one skerrick of consistency back then, if you fast-forward to today. We had international journalists referring to—here’s a headline—“New Zealand election result ‘held hostage’ by anonymous board of minor party”. So that is an absolute demonstration that should we insert a new paragraph in new section 55D that requires a board of directors to undertake another level of scrutiny. That would be something that would be worth Parliament’s time and, more than that, something that’s worth the public’s time and, more than that, something that would be right for both the public and for Parliament.

I’d like to add one last thing—this is not an SOP, but perhaps if we also added “approval by Young Nats or Young Greens or Young Labour”, I wonder where that would go.

Thank you, Madam Chair. Thank you very much. It’s a pleasure to speak on what is not a very pleasurable bill at all, the “Electoral (Lack of Integrity) Bill”. I think it’s a shocker, quite frankly. I think one of the premises that this bill has been drawn up on is to maintain the representation of Parliament, of the Government, and of the election result. But I suspect, and, in fact, I know that when you get out and talk to people in your electorates, if you’re an electorate MP—and I wonder if this is why New Zealand First in particular is promoting this bill. I look across there—are there nine of their members?

Yes.

Nine members. How many—what proportion of that caucus—are actually electorate MPs?

💬 Hon Members: None.

None. This is, I think, what’s driving them, because if they were subject to the will of their people that elected them, they would not be doing this.

When I go out and talk to my people in my electorate, they often talk to me about various issues and ask what my opinion is, and if I start to sound like I’m just merely repeating party talking points, they say, “No, no, no. I want to know what your view is, not what the party’s view is.” I say, “Well, actually, that is my view.” They expect me to have a view, and I think they would also expect me to cross the floor on something that was vitally important to my electorate. I think, when we think back to Nikki Kaye, who did have a different view on mining on Great Barrier Island, she went against the best Prime Minister this country’s ever had—great leader; a great leader in John Key—and John Key, he accepted that. He didn’t want to drum her out of the party. He accepted a different view.

It actually reflects on leadership itself. Real leaders don’t lead by force—that’s dictators. They either do it by the power of the gun or the power of a bit of legislation like this. That’s the only way they can control power and can control people: by fear—either fear of losing your job or fear of losing their life or fear of their family member losing their life—whereas an effective leader has people who follow them. They follow them because they believe in them. Good leaders also know that they don’t have an ownership on all of the good ideas. In fact, they are more like a conductor than the soloist. Unfortunately, when we look at the promoting party of this, it is all about a soloist, not a good leader.

I think that’s a great shame, and it’s a shame for the people in the party over there that haven’t stood up and taken a call and told us what they think about it. I really believe that the Kaikōura electorate should be exempt from the provisions in this bill because my electors, anyway, expect me to represent them. I suspect most members on this side of the House will be in the same position, because we’re connected to the people that voted us in.

For the New Zealand First members, a bit of advice: get out of your office and walk around the electorate you’re based in and talk to people. Find out what they think about this shameful piece of prospective legislation. I doubt that you’d find very many people that support it. I certainly don’t in my electorate.

I talk to people about it and they just think it’s terrible, and they can’t understand why it would be happening. But when I talk to them about the history of the political party that put this forward, then they start to understand that we have a leader who can’t control the members of his caucus. In fact, he has a track record of being in Hunua and in Tauranga and in Northland. In Northland, it took less than three years for them to decide they didn’t want him any more. Why is that? Don’t blame the people that voted you in. Don’t try and change the rules so that you can stay in the game. Just get in the game and deal with it the way it is.

If you’re a good leader, if you’ve got good ideals, and if you’ve got things that people will follow you with, you don’t need legislation like this. You could be like that fine leader, the best Prime Minister we’ve ever had, in John Key, who was man enough to accept that a member of his caucus could have a different view. He was better for it, and we were better for it.

I move, That the question be now put.

Madam Chair, thank you for the call. I’ve listened to a lot of conversations in this Chamber and debates, and I do want to reflect on the other side. Right before the dinner break, the other side—Labour, New Zealand First, and the Greens—were all represented by list MPs. Tonight, the other side, to my knowledge, is represented by all but two who are list MPs. Actually, this flows from the fact that Winston Peters—it’s actually his bill. It actually should be called “Winston’s Bill”, and this is actually, in my view, a great abuse of power.

CHAIRPERSON (Hon Anne Tolley): I hesitate to interrupt, but you must use proper names. In fairness, it should be the Rt Hon Winston Peters.

“The Rt Hon Winston Peters’ Bill”. I’m not sure I’d call it that, but, anyway, that’s the correct terminology. Nobody in my electorate—nobody so far—has said “We want the Rt Hon Winston Peters to have more power.”, yet this is exactly what this bill does, and members of the other side might worry why we’re so upset about this. I’m upset because I’m an electorate MP. I’m ultimately responsible to the people that elect me. If they don’t like what I’m doing, they’ll heave me out. But, every now and again, they’re going to ask me—and it’s my duty—to bring up points of view that will disagree with my party’s position. I’ll argue those out and, ultimately, on the odd occasion, I might have to make a decision about crossing the floor.

I want to specifically come to new section 55D in clause 5 because in this section, in my view, there are some real risks to this Parliament. In new section 55D(a) it says, as part of the removal process, “state that the parliamentary leader reasonably believes that the member of Parliament concerned has acted in a way that has distorted,” Parliament. “Reasonably”—what does that mean? We’ll have to go to the High Court to say “What does ‘reasonably’ mean?”, because I know that the Rt Hon Winston Peters’ view of reasonable is very different to what my view of reasonable is.

💬 Hon Tim Macindoe: That’s the unreasonable.

Yeah, exactly. I’m a reasonable person. But the Rt Hon Winston Peters will use this clause to expel whoever he wishes at whatever time he wishes.

I come down to new section 55D(c), and that says that “by the parliamentary members of the political party for which the member was elected, the parliamentary leader of that party confirms that at least two-thirds of the parliamentary members of that party agree that written notice should be given by the parliamentary leader” under such and such a section. It doesn’t say you have to show any evidence of that. The leader can just say, “No, no. It’s my view that two-thirds of the party believe that, actually, this member should be expelled.”

That’s why I have tabled an amendment to clause 5 which adds a new section 55D(ca), and in that section it says, “the statement provided under section 55D shall include a signed document by each of the two-thirds parliamentary members of the political party as provided for in paragraph (c) to provide verification.” What I’m simply saying is if that’s what the leader is saying, this House must be given a copy of the signed records of two-thirds of those people—to come to this House to prove verification—and that will do two things. First, it will diffuse the power of the leader, because ultimately that is going to have to be reported to this House—everybody is going to know who supports the leader versus who supports the individual that’s seeking to take another course of action—and I actually think that stems abuse of power by the leader.

I look at the other side of the Chamber, particularly the two members of New Zealand First, who are not saying a single thing in this debate, but who themselves may be subject to this bill. If my amendment is approved, then it will mean that the public of New Zealand would know who thinks what about their leader’s position versus the individual’s position, and I think that is a very gratifying thing for disinfection and transparency. That Government on the other side talks about being transparent. Now I’m asking you to actually write it into law to say that you are going to have to provide the signatures to this House to show that two-thirds of your MPs, by name, have supported that documentation. Thank you, Madam Chair.

Thank you, Madam Chair. It’s great to be able to take a call on clause 5 of this bill, but, before I do, I have to rebuke my parliamentary colleague the Hon David Bennett for his very disparaging comments about list MPs. I must say, I was tempted to go over and give him a decent old thumping, but then I remembered that that’s not how we roll on this side of the House. We forgive, don’t we? [Interruption] Quite right. I have been, on many occasions, feeling rather put out by the fact that I am a proud list member of the National Party, but I do actually have a great deal of sympathy those electorate MPs who are standing in this House speaking on this bill and saying “We are actually different. We’ve come here by a different path.” Actually, they are required—they are obligated—to represent the views of their constituency, their electoral constituency.

I see the Hon Damien O’Connor over there. Now, I reckon there must be tens of thousands of tahr in the West Coast - Tasman electorate and I bet there’s a heap of hunters over there as well who are none too pleased about the way they have been treated in respect of the unilateral tahr cull, and there will be a lot more said about that. But I know Mr O’Connor is a very, very fine fellow, who wants to bring the views—I mean, he is the man of the “gaggle of gays” and “self-serving unionists”. He says it like it is, or at least he did.

💬 Hon Member: He used to.

He did, and I do wonder whether a person even of his fortitude would be brave enough to say that now—I should apologise. I shouldn’t reflect on him in that way. I wonder whether he would say that now, because this bill, when passed, is going to upset the probability—the real probability—that people might act in a way that is different from when he said that.

But I want to deconstruct section 55D(a), because this goes to the heart of the circumstances that give rise to what the bill says: the statement of the parliamentary leader who, in his or her view, “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”. Now, let’s just say what this really means. It’s a lot of weasel words to actually say if the person doesn’t vote with the party—that’s really what we’re talking about here.

So let’s say that Darroch Ball, a fine New Zealand First list MP, has a position on a law and order position that is different from New Zealand First’s, and he feels in his heart that it is the right thing to do and that it is consistent, actually, with past New Zealand First whakapapa to vote in a way different from that which his leader and his caucus has said he would. The simple act of voting differently does not in and of itself distort the proportionality of political party representation in Parliament. He is still a New Zealand First MP. There’s nothing that he has done that has distorted that representation. Getting kicked out of the party distorts political party representation, so we’re in something of a legal circular argument here, or a conundrum, if you like, that, actually, the simple act of voting against the wishes of the party—and bear in mind we are all here, and the constitutional framework means that we are entitled and, in fact, obligated to cast our votes as we see fit. The fact that we vote on party lines for 99.9 percent of the time doesn’t mean that that is not an important convention of this Parliament. There have been many times where members have crossed the floor, sometimes actually with the good grace of their parties. But the crossing of the floor and the voting against the will of the party does not distort political party representation; getting kicked out of the party does.

So we have a completely mismatched bill compared with the objectives that the Government seeks to achieve, or at least that the New Zealand First Party, as part of that coalition, seeks to achieve. I think the Minister in the chair needs to explain—if I’ve got this right—whether or not actually voting against the party’s position does what section 55D(a) actually says it does. It’s a very, very important part of this clause.

Thank you, Madam Chair. Just to respond to the immediate point that I think the Hon Michael Woodhouse was just making, which was that somehow by requiring electorate MPs to not be subject to this procedure, that somehow strengthens them, actually, this bill does the opposite. It strengthens the hand of the electorate MP, because, you see, now, you’ve got the position in which an electorate MP can happily and gladly not fully represent the interests and views of their electorate and hide behind the caucus majority, whereas under this bill, when it is enacted, the electorate MP will have no excuse.

If a voter in the electorate says “Look, it is very clear what the collective or the majority view of this electorate is, and I expect you to fully represent it.”, and it is at odds with the majority of the caucus, then, if that member is correct in their judgment about properly and fully representing the interests of the electorate, that member will have no qualms about crossing the floor, to the extent that that might trigger them being booted out of Parliament. But even if it does, then that member can proudly stand up to the electorate in the subsequent by-election and say, “I have stood up for this electorate.” Otherwise, they get to hide behind the tyranny of their caucus majority. So let’s not pull that stunt on this.

I think members in the National Party are worrying about single Acts that happen every time, every Parliament, every parliamentary session, where members have different views from their colleagues in their own party—that that somehow might constitute or represent a distortion of Parliament. That is not what it is, and the Supreme Court was very clear in the Awatere Huata case: it was a member abandoning their party that constituted the distortion in parliamentary numbers. This bill is very clear: it is about sustaining the fundamental principle of MMP, which is the proportionality of party representation in Parliament.

Can I just very quickly go through some of the other points raised. Mr King asserted the argument that the leader is exempt. I’ve already dealt with that argument before, but I will just repeat it for Mr King. New section 55A is very clear: “This section applies to every member of Parliament”. The leader of a party is not exempt. Mr Brown spoke to his Supplementary Order Paper (SOP) 64 about the secret ballot, and I say to Simeon Brown that that is taken care of in paragraph (d) of new section 55D, which is that everything else has to be compliant with the party rules. His SOP adds absolutely nothing. Ms Denise Lee raised the issue of her SOP 60, which, effectively, hands the decision over to a party board or the governing board, which, apart from possibly being in contravention of the Parliamentary Privilege Act, actually does not add anything, in any event. It is a decision of the caucus—two-thirds of the caucus—compliant with the party rules.

I did note that Stuart Smith took a call, but I don’t have any notes next to what he said, so I’ll go straight on to Lawrence Yule, who went on to argue about the two-thirds of the caucus having to sign the notice that the leader gives. I simply say this: is it ever conceivable—is it ever conceivable—that a leader of a party in this House would say something or take a constitutional act that was simply based on an untruth or simply was not correct? That is not how this place operates, and every member knows that their words and the actions of their colleagues in this House, regardless of which party they come from, are to be taken at their face. So I cannot conceive that a leader would happily go off and assert that two-thirds of the caucus supported a proposition that they demonstrably did not. That might be “Planet National”, but it is sheer and utter lunacy. And Mr Woodhouse—I’ve responded to his points there.

We’ve been through many of these points before, and it’s important that legislation like this achieves great scrutiny. Three hours into the debate that we’ve now had, this has had great scrutiny, but I want to say this bill is very important for ensuring that fundamental principle of MMP is sustained and is reflected on our statute book, and that is that the proportionality of party representation is maintained. By-elections in the electorate do not change that, because by-elections that change the party from which that MP comes from are following the verdict of the electorate. This is about taking out of the hands of individual MPs the ability to alter the proportionality of Parliament on a whim.

It’s always a pleasure, actually, to follow after the Minister in the chair, Andrew Little, but I would have to make the observation—

💬 Hon Tim Macindoe: Because it makes you look so good.

Well, I couldn’t possibly comment. We’ve had a few things here today, and it was mentioned as the Minister was attempting to get, at the start, to—it’s the old adage of dancing on the head of a pin. Why I mention that is it’s often thought that that’s an attack or a critique of the medieval theologians; in fact, what it was is a guy called Jonathan Swift parodying them. Why I mention that is that’s exactly where we are ending up with explanations from the Minister in the chair. It’s actually a parody of a parody.

It’s getting almost ridiculous, and the best way to illustrate it is a comment from himself—and he would know this. He said, “those members of Parliament that choose to leave the party”. Well, the corollary to that is, of course, what about those people who find that the party has abandoned them? This is an evolving democracy, as is the party nature, if you will. I mean, the Minister himself is a scholar of history. He will know that the Westminster system did not begin as a party system, but, in fact, a bunch of individuals, a group of Independents, and it has evolved. So, again, I posit in retort to him that just as he may suggest that people leave their parties, there are instances where the parties abandon them.

But my major focus is on, of course, new section 55A(1), where it says, “This section applies to every member of Parliament, except a member elected as an independent.” I’d like to put forward to the Minister that that is actually a discrimination. It’s a discrimination, actually, based on association. That Minister will also understand that freedom of association, along with freedom of speech—which some of the left don’t tend to like, such as the vice-chancellor of a university beginning with the letter “M” and ending with a “Y”, with an “A”, “S”, “S”, and an “E” in between. Fundamentally, it’s a discrimination based on a freedom of association. So, in other words, if people choose not to associate with a party, they get exempted from this law, and, on the flipside, where a member chooses—and I think all of us, as members of Parliament, choose to associate with a political party. We all of a sudden become—

CHAIRPERSON (Hon Anne Tolley): I’m sorry to interrupt the member, but we’ve already ruled out of order a Supplementary Order Paper (SOP) that dealt with this issue, which is about Independents versus party. So this discussion is out of order because it’s out of scope of the bill, as the House accepted at the second reading. I have stopped the clock in fairness to you, but—

So are we saying we, in committee—and I’m happy to be corrected—can no longer critique the bill itself, but it’s only the amendments that are put forward?

CHAIRPERSON (Hon Anne Tolley): You can, but you can’t debate a Supplementary Order Paper that’s already been ruled out of order.

At this point, I’m actually just critiquing the bill itself and the inclusion of new section 55A(1).

CHAIRPERSON (Hon Anne Tolley): I’m aware of that. That’s why I’m explaining to you that the SOP that targeted Independent members has been ruled out of order because the bill, as it was accepted by the House at the second reading, is for all members of Parliament who are members of parties.

I hope not to trifle with the committee, but I’m not actually speaking to an SOP.

CHAIRPERSON (Hon Anne Tolley): No, but you’re speaking to the bill—

I’m speaking to the bill.

CHAIRPERSON (Hon Anne Tolley): —and it’s out of scope of the bill.

But you’re saying that because it’s gone through second reading, I can no longer critique the bill as written.

CHAIRPERSON (Hon Anne Tolley): It’s out of scope of the bill to discriminate—to try and call the difference between parties and an Independent member.

I will move on to other matters and come and consult further after this. I still think there are elements of discrimination which need to be noted, but there are two SOPs that I do want to particularly address, and I’m more than happy to be pulled up on these. The first is that of the Hon Tim Macindoe, his Supplementary Order Paper 65, which is inserting a new section 55D(e) where, basically, it’s suggesting that the parliamentary leader needs to ensure that the party secretary is involved. Why I think this is important—and I would encourage the Minister to accept it—is that the broad principles put forward on this bill are all about the party, or, in particular, maintaining the party proportionalities. Now, that all makes good sense, well and true, if you buy the argument from the Government in terms of the math. However, if that’s to be a true representative or a true proportionate response, it should be that the party as a whole is engaged.

I would quibble with some of the wording that the Hon Tim Macindoe has put in here, and I may insert a further Supplementary Order Paper that “party secretary” itself may be too narrow. Different parties do have different titles, and I would not want us to get bogged down in some basic nomenclature problems, so I think we could broaden that out. But I think the general intention is correct, and for me it actually reflects what is erroneous but the intention of the Government, which is party first—that the party’s proportionality must come first. We heard from other contributions, including Michael Woodhouse’s earlier, that these other considerations—the other hats, as I’ve often described them, that MPs wear—are subordinate to that of the party. So I don’t think it’s a bad idea in the Supplementary Order Paper 65 to have the party secretary involved.

The last one that I might touch on is Supplementary Order Paper 85, in the name of the very fine MP for Pakuranga—not as fine, unfortunately, as the electorate to your west, Tāmaki, but hey, that’s a different point.

CHAIRPERSON (Hon Anne Tolley): Unfortunately, that one has been ruled out of order.

Really—as well? Gosh, I really shouldn’t buy a Lotto ticket this weekend. Well then, fundamentally, we return to the whole point around, if the party structure is going to be front and centre of the principle, then we really need to understand where discriminations are already written into this bill. Secondly, as in my earlier point—particularly around Jonathan Swift—where do the party democracies evolve, and is this bill fit for purpose?

Thank you very much, Madam Chair. I didn’t come into this place to be a lapdog of the leader. I didn’t come into this place to be a number. I didn’t come into this place to be told what to do. I came into this place because I was voted by my electorate to voice my opinion, to voice my ideas, and to express what I felt about an issue. Minister Little is shaking his head, because I know what he’ll say. He will say, “You can still do that, Mr Scott.” He’ll say, “You can still do that because you’re an electorate MP and you have a vote as a member of Parliament.”

That is true. That is true under this bill. But the problem with this bill is that it stymies that independence. It stymies the ability to express a view. It hinders people’s ability to cross the floor. The Minister in his last call said exactly the same thing. He said that he or she can cross the floor but that it might trigger this legislation. They might feel uncomfortable crossing the floor, because it might trigger this piece of legislation, and therefore they might end up being kicked out of the party.

That’s what the Minister just said. He knows that this piece of legislation hinders the ability of MPs to operate as independent voices of their electorate. Now, ask Mr Damien O’Connor what he would have done with regard to his crossing of the floor vis-à-vis the windthrown trees with this bill in place. Would he have had the balls to cross the floor? Would he have? I don’t know. We will never know. But my point is that this bill stymies the ability of the person to cross the floor.

Nikki Kaye’s name’s already been mentioned. She crossed the floor from this side to that because she had a view that she wanted to express, and this bill stymies that ability to express the views of the electorate. Even though, yes, the member can continue to advocate, continue to speak out, about the interests of their particular electorate, at the end of the day, there’s a threat, there’s an attitude, and there is a hindrance to the members’ ability to express themselves freely.

Now, the other point the Minister made in his last contribution—then he said the ridiculous thing that you cross the floor and there’s a possibility, and you should stand up for your electorate in a by-election. I mean, that’s just the most ridiculous suggestion. If that really is the result of this piece of legislation, then that’s expensive, wasteful, and unnecessary.

But the other point the Minister made was around Simeon Brown’s secret ballot. He said that the constitution of the parties should be able to dictate and allow for—and I’m sort of assuming here, but the Minister implied that the constitution of the various parties should allow for the voting procedures to establish your two-thirds. It may be that on this side we do have a secret vote to determine the two-thirds, and that’s a good thing because of the argument that Mr Brown put, which is that it gives people confidence to express themselves without being threatened in any way by the rest of the group. But why not instil that in the legislation? Why not make it—because it is an important issue.

Other parties may not have a secret ballot to determine whether the two-thirds agree against the one-third, or the two-thirds agree to kick a party member out. They don’t have to have a secret ballot. I think it’s important that there is a secret ballot, and that there is an ability at least to improve the bill, as Mr Brown was trying to do, to ensure that the constitution of the parties—well, not the constitution. In fact, put it in legislation so that it overrides the constitution of the parties to ensure that there is the ability to have a secret vote, a secret ballot, and thereby protect the members of the parties across the House to determine in a much more fair and reasonable and sensible way the two-thirds majority that is required under this bill to kick a member of their party out.

So, as I say, I’m pretty disappointed. I’m not here to be a number, and that is why I’m very pleased to be standing here today talking and speaking against this bill.

Thank you, Madam Chair. I made it! I want to speak principally to—

💬 Hon Member: It’s only because you blocked the view of everyone else.

—that’s right—clause 5, and new section 55AAB. But before I do that I just want to make a few comments on the contributions of the Minister in the chair earlier.

The first one—which he reiterated just after the dinner break but spoke a little bit more on just prior to that—is his seeming misunderstanding about what creates the proportionality of Parliament. His claim was that a by-election would not distort proportionality of Parliament because the electorate made that decision. Well, here’s the news for Mr Little: the proportionality of Parliament is not set by the electorate votes of 71 electorates; it is formed by—in the last election—around 2.5 million party votes that were cast right across the country and that were tallied together, and those gave the proportions. Now, in a by-election you have a possibility that the party the electorate MP comes from could be determined by less than 1 percent of the voters that formed the proportionality of Parliament. So there is no way—there is no pin with a head large enough to dance on—that would hold that that maintains proportionality of Parliament. The Minister needs to school himself a little more on that.

The other point the Minister raised in an earlier contribution was the view that some 21-odd constitutional experts were wrong and he was right. I listened to this. I listened to this position and I thought of Blackadder. In an episode of Blackadder, Blackadder says to Captain Rum, “Isn’t it standard maritime practice to have a crew?”, and Captain Rum says, “Opinion is divided on the subject. Everyone else thinks you do, and I think you don’t.” Mr Little, you did a great job of paraphrasing Captain Rum in the committee tonight.

But to clause 5, which introduces section 55AAB(a)—this is the purpose part to the sections introduced with this clause. It states it will “enhance public confidence in the integrity of the electoral system;”. My problem here is that all of the sections that this clause introduces fail to deliver that purpose. Why do they fail to deliver that purpose? Well, I ask you this: how can the public have confidence in the integrity of our electoral system if, in effect—and just to be clear, I’m not talking about the semantics of the wording—this bill allows a party leader to dismiss an MP at their will? How can the public possibly have confidence in the integrity of our electoral system?

The reason it does that is that, one, only a party leader can notify the Speaker that a member has been deemed to have left the party, and, two, the party leader only has to state that they have the support of 66 percent of their caucus. Now, there are two things wrong with that. One is that they only need to make the statement, but the second one is that, effectively, that turns that whole question into a question of the party leadership.

Now, if a caucus is faced with “Back your leader and agree to dismiss a member, or vote the leader down.”, then that is simply a test of confidence in the leader. It is simply saying either “I’m voting to continue with the leader I have.” or “I’m voting to remove them.” So, in reality, while in the past it is true that there have been leaders that haven’t been able to muster the support of enough of their colleagues to do much at all—and the previous Labour leader is a good example of that—in most cases, leaders will have no problem in having the support of their caucus, because they already have it. To not give it to them on that question would call into question the continuance of that leader, so the reality is the leader will be able to make the decision. They know they will get the support of caucus.

Then, again, another part which fundamentally undermines the concept that the public would have integrity in the system under this model is the requirement only that they state certain things as holding true. They don’t need to provide evidence, for instance, that the party’s constitutional rules have been met in going through the process to work through the decision to expel the member; they merely must state that they have done so. In this House, it is true that we accept members’ words, but the test here is not what members of this House are prepared to accept; the test here is what the public would think. In this instance, I would say that the public would want to see more evidence than a simple statement from a leader that the rules have actually been followed.

Thank you very much, Madam Chair, in particular for the opportunity to speak to Supplementary Order Paper 67, which has not yet been ruled out, I understand—if you’ll excuse the double negative. I’ll speak very quickly before you can establish that, one way or the other.

It’s important because in the context of clause 5—which we’re considering, obviously—in relation to the Electoral (Integrity) Amendment Bill, we’re talking about formal requirements. While procedural matters might seem less exciting to some than others, they are of great excitement to me and many members of Parliament, but they would also be a matter of great excitement to courts that might be called upon to interpret the way that this law is exercised. It’s precisely because the courts are not an appropriate forum to investigate and inquire into the substance of a decision that is made under this bill that the procedural requirements assume such great importance. So in the notice that must be given by a party leader when exercising their right under this bill, it’s so important that the courts have something on which to base their decision on the lawfulness or otherwise of such an action.

If I might pause briefly to draw inspiration from that wonderful documentary series Yes Minister, or perhaps Yes, Prime Minister, Sir Humphrey Appleby said to the Hon Jim Hacker—perhaps right honourable by that time—“If you must do this damn silly thing, don’t do it in this damn silly way.” So, on that note, I request that the Minister consider that if this bill is to pass and if he’s intent on passing this legislation to do these things that we’ve discussed now at some length, at least have regard to the manner in which it might take place in a less obnoxious way.

So it is that I propose by way of a Supplementary Order Paper that—and I quote now—“after completion of all other requirements imposed by the rules of the political party for which the member of Parliament was elected to relating to selection of candidates, the next available list candidate for that party has been informed of the leader’s intention to give notice under [the relevant section] and has indicated they wish to accept the seat when it becomes available.” A couple of different actions must take place under this proposal that I’m making. One is that before the process is completed whereby, we’re told, proportionality is to be maintained, the party leader must have in mind that the next person on the list will be available, the whole purpose of which is that if proportionality is to be maintained, then the next person has got to be ready, willing, and able to take up that position so that there are the right number of members of Parliament in the House and, indeed, the right members of Parliament in that party—that being the whole rationale, the whole raison d’être of this particular piece of legislation.

There are a couple of particular elements within that, if you’ll excuse me being quite specific. The first is that I’m suggesting it’s after completion of all those other requirements that the party leader would establish the availability, readiness, and willingness of the next candidate. The reason that I’ve set that up deliberately in terms of the sequence of events is that I don’t think that the bill—indeed, the law by that time, if it should pass—should be able to be used as an excuse for a party leader to say to himself or herself “There is a person who is next on the list who is more attractive for my party.” in terms of whatever they might bring, whether it’s particular strengths in a portfolio or other matters, and so they would be more inclined to bring about the actions under this law. We don’t want that to be a motivation. We don’t want that to be an excuse to be able to be used, and so I’m suggesting that all the requirements must be met in accordance with the party rules before that might take place.

I perhaps could’ve gone further and actually suggested that there be a requirement that the next list MP available actually state that she or he will sign up to the party’s manifesto as interpreted by the leader, otherwise we’re potentially in a situation where one MP gets replaced under this law and the replacement themselves fall foul of the same judgment, effectively, by the party leader, and they, in turn, will be knocked off the perch, and so on and so forth. So that’s why I’ve stepped away from that a little bit, because I think that would unduly complicate matters. Nevertheless, I’m proposing this amendment, and I would love the Minister’s comment on ensuring that next flow of MPs thereafter.

What a pleasure it is to rise to speak in this debate in which there are clearly very passionately held views, because this is a matter that comes to the very principle of what it is to be in a representative democracy. It is with those high principles in mind that I want to address clause 5 this evening. What this clause is is a whole lot of process trying to dress up and cover up the fact that, substantively, what this bill does is lacking in principle. I want to take a moment to look at some of the processes that the good Minister has put in to cover for the fact that, actually, the very acts being described are hollow.

So we have the form of the statement to be made by the parliamentary leader, because, of course, what matters when you’re kicking someone out of Parliament for having a view contrary to that which you believe is right is that you give them three weeks’ notice—three weeks’ notice—and you put it in writing. That is what is important in this clause. I would ask the Minister: how is it that he’s decided that 21 working days from the date of receiving the notice to respond to the matters raised is the right number of days? Is that the point at which justice will be served, because, in fact, the caucus has had three weeks to reflect on the notice from the caucus member responding to the leader’s document? Is that the amount of time required to make people’s consciences prick? Is that the amount of time required to make people think, “Well, actually, perhaps it’s a little unreasonable to kick someone out of Parliament altogether because their views don’t align with the leader of the moment.”?

I would also ask Minister Andrew Little, as he sits in the chair, what sort of things he would expect to come in the reply that comes from the member. Of course, what clause 5 allows for is that when a party leader informs a member that they are going to have written notice that they are to be excluded from Parliament, the member then has 21 working days to respond to the matters raised in the notice, by a notice in writing addressed to the parliamentary leader.

So I want us to imagine what sort of a letter it is that we’re expecting from members of Parliament in this situation, and I’d like the Minister to comment on what sorts of arguments he thinks would be in such a letter that would make everyone pause and say, “Well, actually, thank goodness we’ve got clause 5 and we’ve got these process steps, because now that this member has responded in writing after considering for 21 days and has clearly set out their case, actually, let’s take a step back. The caucus got it wrong. The leader got it wrong. Actually, when we said we wanted to kick you out of Parliament, that was completely wrong, and we’re not going to do that any more.” I would suggest to members of this House that having a process like this that tries to give the aura or the smell of justice is simply misleading, because what we have here is a bill that goes against the very principles of democracy that we are expected to uphold in this House.

I also want to talk about this idea of the notice from the parliamentary leader, which we have at new section 55C in clause 5, where written notice is required to come in a particular form. It is to be signed by the parliamentary leader of the political party, it is to be addressed to the Speaker, and it is to be accompanied by a statement that complies with new section 55D. This is where I would ask at what point do we think that members of a caucus, that members of this Parliament, would actually have any power to say to the leader “Well, actually, we think your statement is hollow. We don’t think it stacks up.”, because nothing in these clauses allows for the fact that what is happening here is a leader being able to kick out members of Parliament.

We shouldn’t have to be raising these matters except that we know that all of these matters have been put in place and have been argued for by a leader of a particular political party who, I would suggest, may not necessarily be that good at putting things in writing and who, I would suggest, has a track record of perhaps not having the most cogent arguments. Wouldn’t it be lovely if clause 5 had a little section that said “And if the leader is unable to make a cogent argument, then the arguments won’t stand.”, because I’d suggest that for some of the members opposite who are so intent on having these clauses in this bill, that could become a particular stumbling block—that, in fact, they are unable to set out their case very clearly.

I would advise that the 21 working days in which the member has to respond to that notice could be 21 very interesting days if, in fact, what was happening was a contest of two minds, because, in some of the parties opposite, where we have a leader and we have other members, I’d invite members opposite to suggest whether or not they think they could argue strongly within 21 working days to convince the other members of their caucus. So what we have in this clause 5 is a triumph of process over substance.

I move, That the question be now put.

The Hon Amy Adams’ amendment set out on Supplementary Order Paper 68 to replace section 55E is out of order as being contingent on a previous amendment, which was to replace section 55D(a) to include a term that is defined in new section 55E.

The question was put that the amendment set out on Supplementary Order Paper 57 in the name of the Hon Dr Nick Smith to clause 5 be agreed to.