Speaker’s Rulings — Speaker’s Role under Electoral Act 1993

I wish to clarify for members the role of the Speaker in relation to the creation of vacancies under the Electoral Act 1993. A seat of a member becomes vacant only if one of the circumstances set out in section 55 of the Electoral Act 1993 has arisen. If the Speaker is satisfied that a seat has become vacant in accordance with that section, then the Speaker publishes a notice of the vacancy. See sections 192(1) and 134(1). There is no other basis on which a vacancy can occur. Representation in this House is central to our democracy. As Speaker, I must be careful to ensure the law is applied correctly in such cases.

As I advised the House yesterday, section 55A(3) is very clear that, for the purposes of the Electoral Act 1993, a member ceases to be a parliamentary member of the political party for which the member was elected only if a written notice is delivered to the Speaker that complies with section 55B or 55C. I have not received a message that complies with either of these sections.

There is no leeway for the Speaker to declare a seat vacant if they are informed or become aware of the information that a member has ceased to be a parliamentary member of the political party for which the member was elected in any way other than through such a written notice. Like you all, I have seen media coverage stating that the Hon Meka Whaitiri intended to leave one party and join another. But those statements themselves do not cause the member’s seat to become vacant.

Section 55B of the Electoral Act 1993 provides that for a notice from a member to have the effect of making that member’s seat become vacant, the notice would need to be signed by the member giving the notice and be addressed to the Speaker. It would also need to notify the Speaker that the member had resigned from the parliamentary membership of the political party for which they were elected, or that they wished to be recognised for parliamentary purposes as an Independent member or a member of another political party. A communication that does not comply with these requirements is not a notice that gives rise to a vacancy.

As I have outlined previously, I have received a message from the Hon Meka Whaitiri informing me that her vote would no longer be cast by the Labour Party and that she wished to be seated in the Chamber next to members of Te Paati Māori. It therefore is not a written notice that complies with Section 55B of the Electoral Act 1993.

As Speaker, I must administer the House’s procedures, and this is problematic when a member’s party status is unclear. In practical terms, I need to rule on how to treat a member who no longer sits or votes with the party they sat and voted with previously. Using my judgment and the knowledge I had that the Hon Meka Whaitiri no longer wishes to serve as a member of the Labour Party, I determined that under Standing Order 35(5), the member would be regarded as an Independent member for parliamentary purposes. This means that the member will have rights to ask oral questions and speak in debates in proportion to the fact that they are one of 119 members in the House, and the Labour Party’s allocation will be adjusted accordingly. The member also will need to apply to me if she wishes to seek permission to be absent.

Point of order, Mr Speaker. Thank you for your further clarification of the situation. I have two questions: first, are you prepared to release all of the communications regarding this matter, and, if the answer to that question is no, does that decision preclude the Hon Meka Whaitiri herself from releasing those communications, including the communications from the Speaker’s office back to her?

I thank the member for the question. I was hoping that question would be asked.

💬 Hon Michael Woodhouse: Happy to oblige.

Thank you. As Speaker, I receive correspondence with members daily. It is extremely important that members can trust that all such correspondence can remain confidential, but in this particular case I can reiterate that I have not received any correspondence from either the member or the Labour Party that complies with section 55B or 55C of the Electoral Act respectively. I can also say that I cannot release that information, but the Hon Meka Whaitiri is able to if she wishes to do so.

Point of order, Mr Speaker. Thank you, Mr Speaker, for that. I found that clarifying after the confusion that we had yesterday.

The one bit that I just want to understand is towards the end of your statement, when you talked about the understanding that she would now be treated as an Independent MP, but I understood from the earlier part of the statement that, because the Hon Meka Whaitiri had not notified you that she was resigning as a parliamentary member of the Labour Party, then, essentially, she is still a member of the parliamentary Labour Party. It doesn’t then follow that she can both be a member of the parliamentary Labour Party and also an Independent MP at the same time. Whereas I was following you were saying that she has notified that her vote has been withdrawn and that she wants to sit somewhere else in the House, but that doesn’t change her status as a member of the parliamentary Labour Party. It just means that her vote is treated differently and she sits somewhere differently, but it doesn’t then follow that allocation of questions and so on would move away from the Labour Party, because that would indicate that she has left the parliamentary Labour Party, which she hasn’t notified you that she has.

Under Standing Order 36, the Labour Party has now advised me that the Hon Meka Whaitiri is no longer a member of the Labour Party.

💬 David Seymour: Speaking to that, Mr Speaker.

A new point of order?

Yes. To help understand that, would it be fair to say that Meka Whaitiri is now an Independent member under the Standing Orders, but a member of the parliamentary Labour Party so far as the Electoral Act is concerned?

Speaking to that point of order, I think I get what Mr Seymour is saying in that particular point of order, which is to make the point that the Standing Orders are the rules of this Parliament, and the Electoral Act are the rules of the land. They are by and large consistent, although, for example, there are things you can say outside Parliament you can’t say inside it and so on. So I think the point Mr Seymour is making there is that there is an Electoral Act that has a particular set of information; there are the Standing Orders that have another set of information within them.

💬 David Seymour: I was hoping that you might clarify, Mr Speaker.

I thank—actually, I thank both members, because both the question and the contribution actually answered the question: yes.

Point of order, Mr Speaker. It can’t be the case that both positions are correct. One has to be correct. The other, simply, was a notification of what we all know to be the fact: there is a set of Standing Orders; there is the Electoral Act. The thing that’s most interesting is that you’ve just said that the Labour Party have notified you that Meka Whaitiri has resigned from the Labour Party. Now, what’s the standing of that, because anybody could send you a letter from anywhere saying that, you know, so-and-so has resigned from their party. There has to be some basis for you to accept that, and then, when you do accept that, how does that stack up? It’s a notification to you about a member having resigned from the party that they were elected to.

The next point I’d make is: is it possible now for members just to write to you to suggest where they would prefer to be sat inside this Parliament?

What I will say in response to the point of order is that this House makes the laws—that’s the first thing I’d say. The second thing I’d like to say: if I had’ve accepted and notified yesterday that the Hon Meka Whaitiri—that her seat was vacant, we’d be having an altogether different constitutional discussion right now. The only way the member can vacate the seat is by telling me under section 55 of the Act. Now, as I’ve told this House several times, that has not been complied with. Given that fact, there has to be some way that the Hon Meka Whaitiri is to carry out her parliamentary work, and so I have said—as I have said—for parliamentary purposes, I’m considering that she is an Independent member.

Point of order, Mr Speaker. Will you be releasing, for us all to see, the advice that you’ve had on how you’ve interpreted—

💬 SPEAKER: Sorry, I missed the first part of that.

Yeah. Will you be releasing, so that we can all see, the advice that you’ve had with regards to that? Because it seems to me somewhat odd that you can determine that someone is an Independent without having left their political party, and that would also then suggest that the trigger for those two clauses that you have repeatedly recited this afternoon is somewhat less than the test that you yourself are applying to them.

Speaking to the point of order, Mr Speaker. Just to pick up a point that you made: under Standing Order 36, the Labour Party is obliged to write to you if there is a change in our membership. We have done that—that’s what you just said before. So, you know, we’ve fulfilled our obligations in that regard. It is at that point you then make decisions about what you need to do in response to that. It is the identical set of circumstances that occurred when Jami-Lee Ross was both expelled from and resigned from the National Party on the same day. Under those circumstances, Speaker Mallard indicated what he would do in that situation. So we have fulfilled our obligations to do that. How that then relates to the matters within the Electoral Act relates to your earlier comments about what is required for that to happen.

💬 Hon Gerry Brownlee: Point of order.

No, I’m going to rule on this, thank you. As I stated before, in terms of releasing information, communications, between myself and members, I think every single member in this House should be wary of that. As I stated before, I receive daily communications from members. That confidence—[Interruption] Who is commentating over there?

💬 Simeon Brown: Oh, look, I made a comment—

This is the probably one of the most serious things I’ve ever had to rule on, and having commentary from you, Mr Brown, is really not helpful.

Mr Brownlee, so it is really in the interest of every member that the Speaker not be able to release private communications on anything, but it’s entirely appropriate that members, if they choose to do so, can do so.

Point of order, Mr Speaker. Thank you, Mr Speaker; we appreciate your elucidation. I think there is one bit that we’re all interested in, which is: if it would be possible for you to explain in a bit more detail how the communication you had from the Hon Meka Whaitiri did not fit within the terms of the relevant parts of the Electoral Act, because I think many people watching, and in this House, actually, regard the communication as having complied in the sense that it was sent to you, it was a message, it indicated an intent to resign from the parliamentary Labour Party and, in fact, join another party. You’ve outlined what the law is, carefully and deliberately. But you haven’t outlined—and I think it might be helpful if you outline—how what happened didn’t meet with the law, and so the factual scenario and how it measures with the law. That, I think, would be useful for us.

I can say to you, Mr Bishop, that you have made a number of assumptions about what you think—

💬 Nicola Willis: Well, just clear it up.

Nicola Willis will stand, withdraw, and apologise.

💬 Nicola Willis: I withdraw and apologise.

Mr Bishop, you have made a number of assumptions that are incorrect. It is not for me, after telling this House that I will not be releasing that information, to then discuss that information. That is private communication between the Speaker and a member. Any member can ask for advice. Any member can communicate with me about any matter they would like. I’m absolutely certain that none of the parties want to know and none of the members want me to tell you things that I get told as Speaker of the House. That would be highly inappropriate. I stand by what I’ve said before. It’s entirely up to the members themselves if they wish to release any communication with me.

Point of order, Mr Speaker. Can I just make it clear: I wasn’t asking for that to be released. I think communications between the Speaker and members should remain between the Speaker and the member. I fully accept that. But you’ve read out to the House this afternoon a ruling which clearly would have had some advice provided to you in the preparation of that ruling. That advice, most likely, would have gone to some explanation—more explanation than you were able to read in the ruling that you did read—about how each of those particular provisions interact, and why it is that the conclusion should be reached that has led to your ruling today. Now, that can’t be confidential. That would be between the Office of the Clerk and the Speaker, and I would have thought that that is information that should be available to every member of the House.

Speaking to the point of order, I suspect the answer to that is that, if the Speaker had received a notice in accordance with section 55—whatever the subsection is—of the Electoral Act that was in accordance with the Act, he would have acted on it and released the letter. That’s not the sort of communication to which the Speaker’s referring.

💬 Hon Gerry Brownlee: I think the point has been missed.

I would add to the mix that I am capable of carrying out the Office of the Speaker, and when I read things, some things are glaringly obvious to any member. The Hon David Parker is correct also.