Electoral (Integrity) Amendment Bill

Members, the committee is resumed for further consideration of the Electoral (Integrity) Amendment Bill. When we were last considering the bill, we were debating clause 6. I understand Chris Bishop had the call and has four minutes 39 seconds remaining, should he wish to take it.

Yes, thank you, Madam Chair. Thank you very much. When I had the call last night, I was talking about the errant MP from Hamilton West, Tim Macindoe—in the formerly marginal seat of Hamilton West, now a very safe National seat. But I was speculating in a hypothetical way about what clause 6 of the bill does to the sacred, inviolable—apparently—alleged principle of proportionality. The strange thing about clause 6 is that it actually says that electoral petitions are so important they supersede that principle of proportionality that is given effect to by the Electoral (Integrity) Amendment Bill. I was talking and I was using Mr Macindoe as an example of how the bill creates a weird incentive for MPs to, essentially, use electoral petitions to get around the provisions of the Electoral (Integrity) Amendment Bill that may see their removal from Parliament.

I was talking about Mr Macindoe; I was taking the example that he was elected, and then it turned out that he was a bit like Gilbert Myles—and I’ve had some correspondence overnight in relation to that, but I do wish to make clear to the committee that I’m not besmirching Mr Macindoe’s honour, or, indeed, Gilbert Myles’ honour. But, it turns out, we were speculating about him coming into the Parliament and, essentially, voting with the Opposition on a few occasions and being a bit scurrilous with his behaviour, and the Prime Minister or the leader of the day going to the caucus and saying, “I want Mr Macindoe removed from my caucus. I’ve had enough of this. This is violating the principles of proportionality. He’s not really a National MP.” And I was speculating about how the incentive would be for Mr Macindoe, from a marginal seat background, to use the electoral petition process to call a halt to the provisions laid out in the Electoral (Integrity) Amendment Bill, because this is what clause 6 does. This is very important.

Clause 6, essentially, provides that electoral petitions trump all else, and they say that electoral petitions must be resolved before parliamentary leaders can invoke the provisions in the Electoral (Integrity) Amendment Bill. So to take the example of Mr Macindoe, that would provide incentive for him and some of his colleagues and his good friends and Hamilton West to arrange for a petition to be presented in order for that to be heard. As we know, in the case of the Rt Hon Winston Peters himself in 1975 in Hunua, and in the case of various other electoral petitions, they’re rare but they take a long time to resolve. And in the interim Mr Macindoe might have restored his mana and his pride in the National Party and decided to vote again with the National Party, not cross the floor on numerous collections as I know he is often wont to do. Mr Macindoe hasn’t done any of that—[Interruption] Yeah, exactly; he’s a former whip—but I use that as an example of the perverse incentives that actually clause 6 of the bill puts in place on elected members.

I’ll just repeat again: the perverse incentive it provides is for members to use the electoral petition process in order to subvert the principle of proportionality that the rest of the bill gives effect to. In fact, the whole purpose of the bill is to raise above all else proportionality as determined at the election. We’ve already had the debate on the inconsistency of not taking into account by-elections.

I’ll go back to where I started at the start of my contribution. You look at clause 6 and you think, well, it’s just a tiny little consequential amendment, but, actually, when one stops to consider it and you think about the consequences, like with a lot of things we pass through this Parliament—particularly when it comes to electoral matters that are not done on a bipartisan basis—there’s been no outreach from the Government on this to National to try and get them to support it, because we would never do it. So this is not a multipartisan bill. This is not a bipartisan piece of legislation. This is a piece of untrammelled political expediency by the coalition, and when that happens you get unintended consequences, and this is an unintended consequence. I want to know from the Minister in the chair, Andrew Little, what he is going to do about the unintended consequence of the perverse incentive of electoral petitions being allowed to subvert the principle of proportionality.

I want to further the debate on clause 6 and the quite perverse incentives that are required in this important area of electoral law.

Now, the first point I’d want to make is that, normally, when it comes to electoral law, this Parliament takes a very cautious approach. That is right, because most Western democracies have a constitution, and Parliament is not able simply to ram through electoral law changes that suit the Government of the day. What we have here with clause 6 is another provision that is being passed not just by the barest majority; but actually a majority of this Parliament opposes this bill and opposes this clause. We know that, because members of the Green Party have been very open about the fact that this bill, this clause, is undemocratic.

The specifics of this provision are about the interaction of these Draconian powers to enable a party leader to sack an MP, and how they interact with an electoral petition. The issue here is that let’s say you’ve got a scenario where a member of Parliament has fallen out with their caucus and the party leader wants to get rid of that MP. We know over history that there’s been a number of tense examples that occur as part of proper political discourse, whether it be Marilyn Waring with Sir Robert Muldoon, whether it be the Gilbert Myles of the National Government with Jim Bolger, whether it be the Tariana Turias under the Labour Government, or whether it be Hone Harawira with the Māori Party. So there are times when there are great frictions that exist within caucuses, quite properly, over the debates and the arguments that we have within the Parliament.

The really odd part about clause 6 is that, if you’ve got half a bit of initiative and you’re being lined up by your leader, with these Draconian powers, to get biffed out of this Parliament—something members on this side of the House think is fundamentally wrong; something that would be disallowed in most constitutions in Western democracies around the world—if you wanted to, my advice to any member would be to use clause 6 and initiate a petition. So if the leader of my political party comes along and wants to nail me and throw me out, I’ll just talk to some of my mates at home and say, “Hey, look, can you lodge an electoral petition with the High Court and that’ll stave off the leader from being able to have a go at me.”, in terms of the new section 55A provisions for the dismissal of a member of Parliament. So clause 6 of this bill just furthers the nonsense and the legal confusion, but it’s more serious than that.

At the very essence of New Zealand’s parliamentary democracy is the separation of powers between the courts and the Parliament. We have this long-established comity that exists: that we in Parliament don’t interfere in the work of the courts, and the courts are respectful and they don’t interfere in the business of Parliament. Well, what we have here in clause 6 completely overruns that. It creates this messiness between these two important institutions of our system of Government—the courts and the Parliament—because you are going to have this incentive for a member of Parliament who is in trouble with his party leader and his caucus about an issue, and I’ve given examples, to then stroll the issues over, initiate an electoral petition, and create this sort of mess. And I just ask the Minister of Justice, in the chair, who, actually, one of his most important responsibilities—and I’ve been appalled by the lack of respect that he’s had for this country’s democratic traditions. He is a Minister of Justice that is taking electoral law in New Zealand backwards. He needs to get to his feet and understand “Why do we want to blur the boundaries, with this clause, between the courts and our Parliament?”

We on this side of the House believe that New Zealand has a very proud liberal democratic tradition. Only last week, we celebrated women’s suffrage. We celebrate so many elements of this country that are more democratic and more transparent than most other countries around the world. So why on earth do we want to go down this track that is proposed in clause 6 and confuse these boundaries between our Parliament and the courts?

I move, That the question be now put.