Electoral (Integrity Repeal) Amendment Bill

The Electoral (Integrity Repeal) Amendment Bill was sent to the Justice Committee, of which I am a proud member. I am proud to defend the waka-jumping provisions introduced by the Electoral (Integrity Repeal) Amendment Act 2018, which this member’s bill seeks to repeal.

💬 Simeon Brown: Oh my goodness! Shameful.

The member opposite Mr Simeon Brown says that’s a shame.

💬 Simeon Brown: It is.

And I say, Mr Brown, please wait and let me have my say, because you’ve had yours, as I explain why we oppose this bill.

First the question of “Do the waka-jumping provisions curtail an MP’s freedom of speech?” Let me start by acknowledging the arguments of my colleagues around the House who have, for the most part, engaged in this debate extremely passionately and respectfully, and the Hon Dr Nick Smith for not only bringing this bill forward but also his 30 years of service. In the time that I have known him, we have never once agreed, but I admire him for his loyalty to his party and the unwavering commitment to those he represented. The Hon Dr Smith gave particular attention to his arguments and the arguments of submitters about the way the waka-jumping provisions curtail an MP’s freedom of speech, and I don’t wish to underplay that, because I share his commitment to MPs’ ability to freely express themselves. The Attorney-General acknowledged it in the section 7 analysis from December 2017, of the 2017 waka-jumping bill, and he concluded the impairment of the New Zealand Bill of Rights Act rights, particularly freedom of expression and association, were significant. I’ll bring your attention to the Attorney-General’s finding that the freedom of expression in this House has a special constitutional value. I think that’s true.

So are they justified? The argument we’ve heard from some submitters—and the Opposition have picked up and run a mile with it—is that New Zealand already has electoral mechanisms to hold politicians to account for breaking their electoral mandate, and that the size of the problem that the waka-jumping provisions are addressing is small; maybe it doesn’t exist? That analysis mischaracterises what the problem is, and I’ll come back to that. But the argument continues. They said that New Zealand already has effective political sanctions that do everything the waka-jumping provisions do. It says that political imperatives, electoral judgments, and media scrutiny are the best tools we have for regulating the views of politicians and ensuring they’re accountable. I don’t agree with those submitters. Without the waka-jumping provisions, some MPs have a disproportionately large platform with which to express themselves. It serves no one but the MP personally, and it definitely does not serve the voters who elect them.

💬 Matt Doocey: Come serve a big party.

So what do they do, then, Mr Doocey? The waka-jumping provisions are effective because they do three things, and let me tell you what the first is, Mr Doocey.

The first is that they protect from some sort of lone wolf defection, and that’s what’s been talked about most in this debate, but it’s only one of three. That’s in the situation where the distortion of political proportionality is the issue, and it was summed up by Chris Bishop when he said, “We want MPs to say unpalatable things.”—as if he wasn’t saying that those things would be so unpalatable to the party that the MP stood for that they would face expulsion. The idea here is that one person acting alone can be the critic and conscience of the country, that they can say unpalatable things, thereby holding back a Government from doing something it was elected to do. That’s a fantasy; it’s not what’s at stake here. Every brooding, complicated heartthrob in this place sees themselves as the person who will stand against the tide of a Government who has lost their moral compass. So do; in that situation, resign. Use your enormous platform that your resignation has bought you to say the thing you so passionately believed. You can exercise your freedom of speech, and not the one that you earned from the voters who elected you.

The second thing that the waka-jumping provisions do is that they protect from a party merger or split situation in the middle of a parliamentary term. They don’t protect from a party merger or split situation before an election, as is appropriate, and they don’t hold that party merger back from contesting the election and putting their case to the voters, building power in the communities that they seek to represent. It does none of that. A merger or split in the middle of a parliamentary term lumps voters with a group that has little accountability to electors, in circumstances where they probably have a huge amount of power.

The third effect of the waka-jumping provisions, and Mr Brown I hope you’re listening, is that there’s no protection in law or the Standing Orders to limit the participation of an MP in the House for past criminal convictions, lying, deception, or gross misconduct in employment, and I think that’s something we can all agree should be provided for. An MP who, once elected, is found to have been in prison for something like serious fraud is not required to disclose that in this House. They’re not subject to the rules that protect staff or taxpayers’ money. They’re not required to recuse themselves from decision-making in this House or in select committee which is directly relevant to their offending and their victims. They’re not required or even encouraged to resign. The very most basic standards that voters expect of us as parliamentarians, as the guardians of our democracy, are not set out in rules or in law by which we govern ourselves here. Voters are entirely reliant on the media during selection and election periods, who can be defrauded like any other human being, or on party discipline to identify those people who are unfit to hold office.

This is where I want to speak directly to the Hon James Shaw. That member has broadly agreed with many of his colleagues on the opposite side. He said, “The waka-jumping provisions that I will be voting down are obnoxious and anti-democratic.”, and that “The Green Party executive made a decision some time ago that we would not exercise as a party this piece of legislation.” He went on to dispassionately observe that when they—meaning the National Party—went through all that trouble with Jami-Lee Ross they didn’t exercise the opportunity to use this legislation. And those comments are the reason I’m singling him out. There is no need to read into what I’m saying with any specific allegation or gossip. I’m singling him out because he got up and he flogged the Hon Dr Nick Smith for being unprincipled, but I’m not interested in the National Party’s principles on this matter, after sitting through the select committee; I’m interested in what he had to say. And so what did he say?

Well, I wanted to hear that Mr Shaw would use the waka-jumping provisions in the circumstances he described as “all that trouble”. I hope he would expel someone in his caucus who abused their power, who hurt their staff, who hurt their colleagues. I’m talking here about the most intimate kinds of abuse of power that, thanks to the Francis report, we know happen in here all the time. No amount of commitment to liberal values makes any member immune. It’s important to me that Mr Shaw can look at those young women in his own party who aspire to be MPs in Parliament who are staffers and say that, if they were on the receiving end of that kind of abuse of power, he would act and not wait for his party to weigh up their options in the context of the politics of the day, because who knows what the political context will be? This stuff happens when the stakes are high. And, if we repeal the waka-jumping provisions, the party will never be the loser, and it’s unlikely that Mr Shaw would be the loser. But what about me, and what about those women?

Now I want to speak directly to those young women in any political party or from any political stripe who aspire to be MPs and staffers in this place. You’ve heard Government speeches which have defended the waka-jumping provisions to allow a party leader to, essentially, expel a member of their caucus, all from women—that’s because the Labour members of the Justice Committee, which heard evidence on this bill, are all women: Māori women, ethnic women, all women. And you heard speeches from the Opposition parties which ranged from questioning why backbenchers would ever support something which took away our free speech in this House to out and out belittling our ability to read. One member said we were allowing ourselves to be handcuffed. And to those women out there, I say watch closely when women MPs give up our power and hand it over to our woman leader. Watch what happens when that woman leader has the power to expel men who abuse their power. Watch the power shift, watch the panic rise, and watch the ones who panic most. Watch and understand that power isn’t evenly shared in this place, because these women can read, and we aren’t handcuffed because we’re into it, because these women know that our ability to speak freely in this House is curtailed by many things and there are constitutional and legal rules which prevent us from saying a great number of things, but we find ourselves shouting over the noise of the toxic gender politics in this place far more regularly.

So staff and MPs shouldn’t be dependent on having the right person in the right position within a party hierarchy to feel safe and able to do their jobs. Nobody should have to put up with bullying. There should be absolutely no tolerance for harassment at all, and removing the waka-jumping provisions in the way that this member’s bill proposes would take away one of the only mechanisms that allows leaders to stamp it out and to be leaders. This bill intends to reverse the provisions of the Electoral Act 1993 that allow an MP’s seat to be declared vacant upon their departure from the political party for which they were elected. It would repeal these provisions introduced to the Electoral Act 1993 through the Electoral (Integrity) Amendment Act 2018, and the effect of that relatively innocuous change is a step backwards for the MPs of this House to speak freely and for the proper running of this place. That’s why we oppose it.

Thank you, Madam Speaker, for the opportunity to take a call on the Electoral (Integrity Repeal) Amendment Bill. Can I start by acknowledging my colleague Nick Smith, who has brought this bill to this House because he believes in democracy, a value which all members of this House should believe in, and passionately believe in. That is something in which I know Nick Smith will leave this House with that legacy intact.

This bill is an important piece of legislation. This bill is about undoing the shameful legacy of Winston Peters, but the fact that the Government still want to keep this bill on our law books shows that Winston Peters still has something over this Government. I think that is absolutely shameful. This piece of legislation should have been the first piece of legislation this Government got rid of once Winston Peters was not required to support them into Government. We know the dead rats that were swallowed by the Green Party to get this legislation on to our law books in the first place, but at least the Green Party have had the courage of their convictions to put this bill to select committee in the last Parliament so that it could be removed in a new Parliament where Winston Peters was no longer there. But the Labour Party do not have the courage and do not have the moral fortitude to actually do what is right—to do what is right: to ensure that our Parliament actually gets rid of this undemocratic piece of legislation.

When we talk about morals, this Government fails to stand up for the morals of this country and the democracy of this country, which is actually what is important and is what is required. The Attorney-General said that this piece of legislation has a chilling effect on our democracy, and, whilst we heard from the previous speaker a nice speech—and I’m not sure whether it was about this piece of legislation or another piece of legislation—what she failed to do was actually talk about the submitters who came to speak to the select committee.

Respected experts from across New Zealand came to submit and said this piece of legislation needs to go through. The waka-jumping legislation must be gotten rid of. We had the New Zealand Law Society, five law faculties, four departments of politics, three schools of history, and a joint submission of 15 university academics on this member’s bill, all enthusiastically in favour of it. Those members of our community—respected members of our community—people who believe, fundamentally, in our democratic principles, the freedom of expression, and the freedom of members of Parliament, they supported this piece of legislation because they understand how chilling it can be.

The Inter-Parliamentary Union (IPU), the lead expert body on best parliamentary practice, vehemently opposes such integrity laws. Most members of the New Zealand Parliament are part of the IPU, and Louisa Wall, who is the chairperson of the IPU in New Zealand, she should be standing up and supporting this piece of legislation, not voting it down. But, because of this piece of legislation, she’s probably concerned that that could have an impact on her role. It has a chilling impact when issues of principle come before this Parliament.

The current piece of legislation would be in breach of the United States, Canadian, and Australian constitutions. It would even breach basic law of Germany, the home of the mixed-member proportional electoral system. But here in New Zealand, for some unknown reason, this Labour Government seeks to continue putting this piece of legislation through and allowing it to stay on the books, and that is something which we on this side of the House will call out and will say, “Shame on this Government for keeping this legislation in this House.” What has Winston Peters got over this Government that they feel the need to continue to have this piece of legislation on the books of this House?

💬 Dr Duncan Webb: I raise a point of order, Madam Speaker. Mr Brown seems to be suggesting there is some illicit motive behind the Government’s actions, and that’s in breach of Standing Orders. I would seek for him to withdraw and apologise.

ASSISTANT SPEAKER (Hon Jacqui Dean): The member will just give me a moment. I thank the member for that point of order. I ask the member to withdraw and apologise.

I withdraw and apologise. The Labour Party did not have this policy on their manifesto going into the 2020 election. They didn’t say to New Zealanders whether or not they were going to support this piece of legislation. Even in the Clark years, they said this type of legislation should only be there for a transitional period of time. But now they’re saying they want to bake this piece of legislation in for no known reason other than that they want to keep it on our law books.

The vague idea that this Government wants to put proportionality of this Parliament ahead of democracy is something that this Government should be absolutely ashamed of. The National Party will stand for our democracy, our democratic principles, and we will support this piece of legislation because it actually is what upholds democratic institutions in New Zealand. I support this piece of legislation.

Thank you, Madam Speaker. I do just want to take the brief opportunity to acknowledge the Hon Dr Nick Smith, who is in the House this afternoon—the member whose bill it is—and who I have spent many hours in the select committee discussing, along with my other colleagues who are in the House tonight, and debating and listening and hearing a lot of theory. We heard about a lot of ancient politicians. It was a fascinating discussion in select committee. I wasn’t part of the select committee or any of the speakers in the previous Parliament on this bill, so it was all new for me, and I did appreciate the opportunity to be part of the select committee.

As the honourable member knows, we will not be supporting this bill. That was very clear during the process, but I do want to just outline that and give some of the reasons. But I first wanted to just respond to one of the comments made by the member Simeon Brown about Labour’s 2020 campaign and our manifesto, and that we didn’t specifically campaign on not supporting this bill. Well, I do want to point out that this isn’t actually one of the Government’s priorities. This bill isn’t one of the Government’s priorities. We campaigned on a manifesto that outlined what our priorities were. Those were the measures that we will take to keep New Zealand safe, accelerate our economic recovery, and take on the foundational challenges in our economy and society—in particular, housing affordability, climate change, which we’ve just received the report on today, and child wellbeing. The proposed repeal of the 2018 Electoral (Integrity) Amendment Act was not among them in our manifesto, so that is true.

💬 Hon Member: It was already law.

That’s right—already law.

I do want to also make the point that we have spent a considerable amount of time, Parliament’s time, on the first piece of legislation as well as this one—over 21 hours on the previous legislation, and then, of course, this one.

I wanted to reflect on a value or a principle that I have been raised with and have been very familiar with over at least the last 10 years of my career, and that was when I was working with Ngāti Hine. One of the values and principles that Te Rūnanga o Ngāti Hine has is: “He rahi kē atu te kaupapa i a koe.”, which is to say that the kaupapa is always bigger than the individual, than you, the one person. We are not against having robust discussion and debate and dialogue and a competition of ideas. In fact, we do that on our marae all of the time. We reach our decisions. Waiho mā te whare e kōrero—it’s the whare that ultimately decides. If I am not happy with that outcome, I can’t just throw a hissy fit and walk out and potentially destroy the entire kaupapa. Tikanga Māori reminds me of why this legislation that we currently have in place and why the bill that is proposing to repeal it—why we don’t support it is that, essentially, it could give an individual more mana and more power than the collective decision that has been made, and I just don’t think that that is right. I don’t think that’s what we want as a democracy in New Zealand. We don’t want to empower an individual more than the millions who voted for the proportionality of Parliament, and so I use that principle and that value that I have been raised with: he rahi kē atu te kaupapa i a koe—the kaupapa is always bigger than the individual.

I was reading the previous debates and, unfortunately, I think Dr Duncan Webb has just left the room, but I wanted to acknowledge him because he too acknowledged the same thing. He said, “Now, we in New Zealand are here to decide our own constitutional and electoral future, and the fact of the matter is … how we express our voting system to all of New Zealand. It’s pretty simple: the party who gets the most votes gets the most seats, and to not have this Act, to not have this piece of legislation, would do away with that principle. To suggest that a member can of their own volition upset the proportionality of Parliament is to put in the hands of the individual the destiny of our nation, and that’s wrong.”

So as I referred to the value—he rahi kē atu te kaupapa i a koe [the purpose is always bigger than the individual]—what we have here is that perhaps an individual could have more power over the kaupapa than that of the collective. I think it’s a dangerous concept in Te Ao Māori and it’s also a dangerous concept for Parliament.

I do want to acknowledge the select committee process, the 19 submissions, and the seven individuals and organisations that we heard from. Yes, there were more submissions in support of the bill than those opposed to it. But I do want to just touch on one point, which was stressed by many submitters, and there was a lot of discussion about it. It is the perceived impact that the current legislation, the one that this bill seeks to repeal, has on the rights of freedom of speech and association. Some submitters, according to the report, argued that the current electoral provisions could limit MPs’ rights to freedom of speech and association and are unjustified. However, I do note that the Attorney-General, who examined the consistency of this bill against the Bill of Rights Act, said he did not agree with the submitters. He argued that the limits on MPs’ rights, or perceived limits on MPs’ rights, imposed by the bill are justified. This is because of the importance of the bill’s objectives and because the capacity to remove and replace the distorting MP is the minimum necessary to achieve these objectives. So we were debating this across the House, and I was thinking: should one individual’s right to freedom of speech compromise the millions of voters who determined the proportionality of Parliament? I just can’t see how that specific right should be able to override something as important as the proportionality of our Parliament as determined at the last election.

The other thing, too, that I just wanted to reflect on, and I remember this was an area that there was a lot of angst and concern about, was the power of party leaders to simply dismiss members who they didn’t necessarily agree with or had concerns with their behaviours, positions, and so on. But I referred to the third reading of the Electoral (Integrity) Amendment Bill, to the speech of the Hon Andrew Little, in particular to point out that he believes—and I believe he’s right—that there are sufficient safeguards in the legislation to ensure that party leaders don’t single-handedly have that much power over this process. He describes what some of those safeguards are, including that there has to be notice in writing, that the leader of the party in giving a notice to the Speaker about this apparent change in proportionality has to have a reasonable belief that the proportionality of Parliament would be distorted.

Now, under the current arrangement that we’ve got, of course, we enjoy on this side of the House a significant majority. But there have been parliaments in the past where the numbers are much tighter to which this would or could actually apply. A leader of the party is required to write to the Speaker to say they believe proportionality would be changed by that. Then there is a 21-day period, and the Minister referred to it perhaps as a cooling-down period, a chance to negotiate or to talk or call it a chance to rally the numbers for that particular member or indeed for the leader who has to give the notice. And then there is the requirement for two-thirds of the caucus to support the action to remove. The Minister in his contribution, in the third reading of the legislation that this bill seeks to repeal, believes that there are sufficient safeguards in there so that a leader does not have so much power in this process.

I just want to conclude by going back again to that fundamental principle that I believe in: he rahi kē atu te kaupapa i a koe—that the kaupapa is always bigger than the individual, that the individual shouldn’t have the power to be able to overturn a kaupapa like the proportionality of Parliament. So, therefore, I do not commend this bill to the House.