Electoral Matters Bill

I move, That the Electoral Matters Bill be now read a first time. At the appropriate time I will move that the bill be referred to the Justice and Electoral Committee for consideration and that the committee present its final report on or before 1 November 2004, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, and during any evening on the day on which there has been a sitting of the House and on a Friday in a week when there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c).

This bill amends provisions in section 55 of the Electoral Act relating to when a member of Parliament must vacate his or her seat. It also cures an anomaly in section 55E of the Electoral Act that could see the Governor-General or a senior judge take a role in the party-hopping procedure, which would be inappropriate to their constitutional functions. The bill also makes a number of procedural and technical amendments to the electoral broadcasting regime to allow the Electoral Commission to allocate funds effectively for electoral broadcasting for the next general election.

New Zealand is a diverse, multicultural society that recognises the rights of its citizens to hold citizenship in other countries in addition to their New Zealand citizenship. In the 21st century New Zealand people with dual or multiple citizenships are becoming more and more common. There is no reason to think that the situation will be different for members of Parliament. However, MPs differ from other citizens in one vital respect. They represent the people of New Zealand, and it is essential that they demonstrate an ongoing commitment to New Zealand and the people they represent. This bill clarifies the position of MPs who wish to exercise the same rights of citizenship that are granted to other New Zealand citizens.

The bill amends section 55 of the Electoral Act so that it is clear, first, that a member of the New Zealand Parliament must be a New Zealand citizen at all times and, second, that an MP must vacate his or her seat if he or she acquires the citizenship of another country by grant. This means that an MP must vacate his or her seat in the New Zealand Parliament if, firstly, he or she accepts nomination as a candidate for election to another Parliament or, secondly, takes office, including by appointment, that involves the swearing of an oath of allegiance to a country other than New Zealand. But an MP who is entitled to citizenship of another country by birth or descent, who renews an existing passport to another country, or who automatically acquires citizenship as a result of marriage to a citizen of another country can continue as a member of the New Zealand House of Representatives and does not have to vacate his or her seat. I am sure that members of the House and the public would view this as a sensible arrangement.

Turning to section 55E of the Electoral Act, the current wording of this section has it that when the Speaker of the House is absent the Governor-General or, in her absence, the Administrator of Government—either the Chief Justice or the President of the Court of Appeal—would be the person to whom a parliamentary leader must deliver notice that he or she is exercising the party-hopping provisions under the Electoral Act. Given the political nature of these provisions, it would be undesirable for the Governor-General or a senior judge to take such a role. The bill, therefore, substitutes a new definition of “appropriate person” in section 55E of the Electoral Act, which removes this anomaly by referring only to the Speaker, and which is consistent with similar provisions in the Electoral Act. In other words, in the absence of the Speaker, the Deputy Speaker would fulfil the function.

The electoral broadcasting regime is vital to our healthy democracy. It allocates a slice of the pie to parties, whether they be big or small, to enable them to deliver key messages to voters in a fair and equitable way. Following inquiries into the 1996, 1999, and 2002 elections, the Justice and Electoral Committee has recommended a number of procedural and technical amendments to the broadcasting regime. While not all those recommendations have been included in this particular bill, it does include a number of straightforward amendments that will allow the Electoral Commission to more effectively allocate funds for electoral broadcasting for the next general election. It does this by removing some of the well-recognised anomalies and administratively burdensome processes of the current broadcasting regime.

In particular, the bill will repeal the outdated requirements for the Electoral Commission to invite broadcasters to provide free or discounted time for electoral broadcasting—a process that must start some 8 to 9 months before Parliament is due to expire. The invitation process is administratively burdensome and achieves no greater level of discount than broadcasters would offer in the normal course of events. The select committee inquiry into the 2002 election saw no value in retaining those provisions. The change effected by this bill would not remove the allocation of free time for the opening and closing addresses that TVNZ and Radio New Zealand have to provide, but it will allow the Electoral Commission to conduct the allocation process more efficiently.

Secondly, the bill amends the provisions of the Broadcasting Act so that only registered parties will be eligible for allocations of time and money. The current provisions allow unregistered parties to be eligible for an allocation if they have at least five constituency candidates on the eligibility date. The select committee considered that eligibility should be confined to registered parties in order to ensure that parties have some degree of public support before being eligible for an allocation of public funds. I agree with its recommendation. Because the invitation process, if it were to remain, would have to commence in November this year, and because a select committee has already debated the proposed amendments in relation to the broadcasting regime, I shall be asking the Justice and Electoral Committee to make its report to this House on or before 1 November 2004.

The primary objective of bringing this bill before the House has been to amend the Electoral Act to clarify when a member of Parliament must vacate his or her seat. At the same time it has provided an appropriate vehicle and an opportunity for other amendments, particularly those that will assist the efficient operation of the Electoral Commission. The Justice and Electoral Committee has, of course, recommended a fundamental review of the law relating to parliamentary elections. The Government is giving further consideration to the significant matters raised by the committee and the scope, resource implications, and timing of the work required to undertake this review.

I intend to move that the bill be referred to the Justice and Electoral Committee for consideration, and that the committee present its final report on or before 1 November 2004, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, and during any evening on a day on which there has been a sitting of the House and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191, and 194(1)(b) and (c). I commend the bill to the House.

On behalf of National I want to take a call that primarily will deal with the changes to the Broadcasting Act. But, firstly, I would like to comment on the changes the Associate Minister of Justice mentioned that relate to the eligibility of people to stand for Parliament when they cease to be a New Zealand citizen, or acquire dual or multiple citizenship except by descent or birth. Those criteria, which are mentioned in the explanatory note, can be regarded as coming about because of the Harry Duynhoven case earlier, when we had the Electoral (Vacancies) Amendment Bill, so I will be referring to the “Harry Duynhoven amendments” that will come forward. It will be very interesting to see in the Justice and Electoral Committee how that matter will be handled.

As I mentioned, I want to spend my time on the other matters, because they affect the way that we will be operating the next election. I draw the attention of the House to the select committee report Inquiry into the 2002 General Election. One of the points made in that report—and that inquiry was the third inquiry following a general election, after the 1996 inquiry and the 1999 inquiry—was that recommendations that had been made had not been carried through. National will support this bill going to the select committee because it allows a very focused attempt, in the short term, to remedy some of the inconsistencies and problems that were highlighted in those previous inquiries.

But I make the point that what we are doing today does not matter, because the Electoral Act is riddled with ad hoc fixes and additions, and there is very limited capacity in the system to consider the overall effect of changes that are made. We know, election after election, that there are things we would like to see changed; we would like to see some things done differently and we would like to make improvements. Yet Parliaments over that time, since the 1996 election, have not had the will to do anything about it. After the 2002 inquiry it became very clear that a fundamental review of the Electoral Act of 1993 needed to be undertaken. I was on that inquiry, and I am happy to say that I believe that the way the review will be set up—with the prospect of there being major changes that the parties can debate and agree to, and that will come into effect for the 2008 election—will be welcomed. Those areas that the review might cover include electoral organisational structures, State funding, election broadcasting rules, party donation disclosure regimes, the changes to the Broadcasting Act of 1989, a common date for the broadcasting of all types of election programmes, the inclusion in Part 6 of the Broadcasting Act of a procedure for establishing the start date for opening addresses, and, of course, the taxation status of political parties.

All of that, in effect, is a very good start, but it is part of the big review, which, I understand, Tim Barnett will be chairing, and which will have an effect in the longer term, on the 2008 election. In the immediate future, however, for the 2005 election, there are some changes that are mostly technical in nature, and they are included in this bill we are debating this morning—the Electoral Matters Bill. With that in mind, I want to comment briefly on a couple of areas that I think are important.

Since 1990 the amount of money allocated to political parties for broadcasting has remained very low. If we take into account inflation and the costs associated with broadcasting over that period of time, we see that the initial figure of just over $2 million will be increased up to $3.212 million inclusive of GST. If I look at the cost of inflation and other associated broadcasting costs, I think that increase does take account of those particular areas.

I also want to draw attention to new subclause (4)(b) of clause 2A of schedule 1 of the principal Act, which is in clause 8(2). We have the situation where there are two nominees on the Electoral Commission, one representing the Government and one representing Opposition parties. It is important that there is not a majority in that area. The bill actually allows that a quorum would consist of one of those people and not necessarily both of them. I think that is important because, over the years, there has been some disquiet about those additional members being on the commission when it is considering the allocation of funding—the State funding provisions. This provision says it is OK if only one of those representatives is there, and that both of them do not necessarily have be there, which in fact may have given the balance of power, as it were, to members who are not on the commission—who are just additional members. Those are areas that I think are significant.

I am also interested to note that, in relation to the allocation of time and money being determined according to whether the parties are registered at a certain time, the cut-off point of 3 months before the election will now disappear, and the date that will now apply from is when the election is actually called. The eligibility cut-off point of 3 months before the dissolution of Parliament can have a retrospective effect when a general election is held earlier than expected, but not so early as to bring an early election provision under section 76C of the Broadcasting Act into effect—in which case, the eligibility date for registered parties is the writ date. I think that what this measure is doing is saying that if a party wants an allocation of State funding—and the provision relates to State funding for political parties—then that party has to be registered at the time, and it has to have made a commitment that it will run in the election. The issue was very vague before, and I think this measure certainly tidies up those provisions.

The bill also allows for variation of allocations. I think the Electoral Commission has a responsibility to look at the variation of allocations. Members will be aware that in past elections some of the parties did not measure up, even though they had been initially allocated funding. If they did not meet the criteria set by the commission, then they lost that funding, which was reallocated to those parties that meet the criteria. For the 1996 election and for the 1999 election I was National’s representative in putting our case to the Electoral Commission. Having fronted up to the commission and put our case in those two elections, I know what the criteria were, what was involved, and how detailed one needed to be in terms of putting a case for State funding for a party. The amendments in clause 21 to section 76A of the Act give the commission the power to vary the parties’ allocations if there is sufficient change in the circumstances on which those allocations were based, thus avoiding unfairness and subversion of the allocation process. I think that is a good criterion for the commission to have.

Although these changes are technical, the point I made right at the beginning is that there needs to be a complete overhaul of the Electoral Act. We are moving towards another MMP election, and this bill will have only a small effect on it. But the bigger picture is the special review of the Electoral Act that will take place, which, of course, will affect the 2008 election. National looks forward to being part of that review.

I am happy to follow on from Lindsay Tisch, and I welcome the fact that on a lot of electoral issues we actually manage to get some level of unanimity around this House. However, in terms of this legislation, I have to say it is great to see a Government prepared to tackle some of the issues that others saw as either too hard or too complicated, and that, for years, sat as administrative burdens on the Electoral Commission—and, indeed, sat as legislation on the Order Paper prior to the last election. I am glad they will now finally be dealt with in what I expect to be a reasonably uncontroversial piece of legislation.

We are developing what I think is a really healthy cycle in Parliament whereby a review of the election is held by the Justice and Electoral Committee after each election. This is the second time that a number of recommendations that arose out of the select committee report have gone forward to become legislation that is passed in time for the next election. The focus between 1999 and 2002 was on electoral administration issues. There were, I believe, 87 reforms to the way in which the election was administered in 2002 compared with in 1999. The general view of the select committee was that the 2002 election ran a lot more smoothly.

This time the issues, in a sense, as Lindsay Tisch pointed out, are more major and more mundane. This bill deals with the mundane side of things in the sense that quite a number of the aspects of the broadcasting regime are complicated, are anomalous, and could conceivably lead to the Electoral Commission being in a really awkward position if a combination of circumstances arose. I think the passing of this bill, which, hopefully, will be improved by the select committee, will actually be a way to ensure that the commission can manage most effectively any risk it has for the election next year.

But there are a number of major issues that the Justice and Electoral Committee inquiry touched on that do require more fundamental examination. One problem with the 3-year cycle is that by the time the select committee, which is doing lots of other business, has dealt with the matters around the last election and produced a report, and that report has been considered by the Government, which might produce a bill, we are within 12 to 18 months of the next election. It is very hard to have fundamental debate on issues completed in that time and have measures in place for the next election.

The unique thing that has happened this time is that the report of the select committee into the election, as well as dealing with a lot of the detailed broadcasting matters that are contained in this bill, has also raised the fundamentals, which for a long time—even for too long—have been the subject of partial debate. These are the issues of donation transparency and State funding of party administration. We already have State funding of ongoing party communication, through leaders’ allocations, and we already have State funding of broadcasting, which is obviously relevant to what is in this bill. But the issue of State funding of administration, which was referred to in the Royal Commission on the Electoral System in the 1980s, is unfinished business. In my mind, our finishing it will help to mature our whole electoral and political system as MMP starts to bed in. We need to have that debate.

What is interesting, in terms of the debate in the select committee, is that I think there is now general acceptance that there are issues that need to be covered. By beginning that review before, hopefully, the election next year, we will actually be in a position to report back, and to put in place any amendments resulting from it, before the 2008 election.

The other issues that need to be covered by that review process comprise a lot of the other anomalies that are appearing in the Electoral Act. I think the citizenship matter is a very good example. It was a fishhook that no one had foreseen; issues arose, the Government had to deal quickly with a situation, and it was dealt with quickly. It took up the time of the House, and it took up a lot of political energy on all sides. What we do not want—and I think it is a statement about our democracy, not a statement about who is in power at the time—is for those kinds of issues to keep arising. By having this legislation, which deals with that citizenship anomaly but also with the commitment by the Government to look at the concept of a select committee - led review of the Electoral Act that reports back in time for reforms to be in place for the 2008 election, I think we now have general consensus on the select committee, between parties, that that process is necessary.

In the meantime the Electoral Matters Bill has some urgency attached to it, because we have to get it back in time for changes to be made. I am sure the select committee, with the permission of the House to meet while the House is sitting, will be able to manage that business comfortably, partly because we already undertook a consultation cycle on these matters only about a year ago, and I cannot imagine there are many agencies with new comments to make about these issues. So, essentially, the bill is non-controversial legislation. It reduces the risk attached to the administration of the election next year. I believe that its passage will be straightforward, and I believe that our select committee will do the job very well. On the basis of that, I would like to commend the bill to the House.

We have had two very interesting speeches on the Electoral Commission aspect of this legislation and the amendments to the Broadcasting Act. I wish to speak to Part 1. I do not wish to refer to the matter that took place last year, other than to show how it is relevant to what is happening today.

One of the issues that arose last year was the advice of the Crown Solicitor expressing concern about a member of Parliament renewing a passport or travel document after becoming a member of Parliament, and the uncertainty relating to whether that placed that member of Parliament’s position in this House in jeopardy. The Government has introduced this bill that now contains a clause inserting new section 55AA, which states: “Despite section 55(1)(b) and (c), the seat of a member of Parliament does not become vacant by reason only of the member—(b) renewing a passport or travel document that was issued to him or her by a foreign State or Power before the member took office.”

If at the time this Act was first passed—and we go back many years—members of this House thought that renewing a passport or travel document was something that should debar one from being a member of Parliament, was that a good idea, and should it be continued rather than revoked? I just raise that point and hope we will get submissions on it, because I believe that once one becomes a member of the Parliament of New Zealand, one should be travelling only on a New Zealand passport. That member should not renew any other passport, and should not be travelling on any other travel document. Either one is loyal to this place or one is not.

It is my view that we set the standard. I have indicated that we set a standard in other areas, and here we are setting a standard too. It is the standard we set as the leaders of this country—one that says we can put our nationality on our sleeves and just change our nationality as we wish. Today we could be New Zealanders, tomorrow we could be any other nationality that might apply to this House. I am not picking on anyone; I am saying everyone in general, and it includes, I suspect, members of all parties. I can have the nationality of more than one country, but since I became an adult I have only ever had a New Zealand passport, and I have only ever travelled on a New Zealand passport.

Hon Harry Duynhoven: Same here.

DAIL JONES: I ask that member, and other members, that if they agree with me, why do we have new section 55AA(b) in this bill? Why do we not have a clause that says that if one renews another country’s passport, or travels on another country’s travel document while a member of this Parliament, then that member has placed his or her position in this House in jeopardy, and he or she should resign.

Hon Harry Duynhoven: Let’s get the facts right—neither of those things apply.

DAIL JONES: No, I am not attacking the member at all. I am just making—

Hon Harry Duynhoven: Of course he is!

DAIL JONES: I am not attacking that other member. I wish he were not in the House today and was perhaps watching a replay on television, because this situation could apply to me. I am saying that we are members of this Parliament, we set a standard as New Zealand citizens, we always travel on a New Zealand passport, we never renew any other passport—or we decide that we do not want to be members here.

An interesting situation is now developing in New Zealand. The other day I was having a discussion at a soccer club over a few drinks after the game. One of the people in the conversation, born and bred here and very proud of being a New Zealander, was making comments about being a New Zealander and suchlike. Someone else chirped up and said he had come here 30 years ago and always travelled on his former country’s passport. There was no way that he was going to change, but he was going to tell me, as a member of Parliament, how this country should be run. The New Zealander looked at this other person and said: “If you’re not going to be a New Zealander, you shouldn’t be telling people how to run this country, even if you have been here 30 years, paid taxes, and will get superannuation and everything else as well.”

What I am asking is this: have we reached that stage of maturity in New Zealand where people should start making decisions as to whether they are New Zealanders first and foremost? Should not this House be setting the standard and saying that we are New Zealanders first and foremost, we do not want to travel on other countries’ passports, and we do not want to renew another country’s passport while we are representing this country in the most important way possible? So I hope we will get submissions on that clause.

The other clause that interests me is clause 5(1)(b), which has an interesting little change. Currently, the Act states in section 55(1): “The seat of any member of Parliament shall become vacant … if he or she takes any oath or makes any declaration or acknowledgment of allegiance or adherence to any foreign Prince or Power”—which is where the passport one came in as well. But the amendment now goes on to add “whether required on appointment to an office or otherwise;”.

I am just wondering why we have that, and whether it applies to people who might be consorts—to any person who might be the consort for Monaco, or somewhere else like that. I wonder whether that particular person has noticed those few words being added in, and whether, if this bill is passed in the form it is now, he or she will have to resign that position. I will be interested to hear submissions on that matter, possibly from that member, who is also a member of the Justice and Electoral Committee. Whether he has an interest in the matter, I am not sure, but he may have to remove himself from the committee. I am not being mischievous, but just stating the facts as I see them. I draw this matter to the attention of that member, and I look forward to seeing what this part of the bill actually means.

The Green Party will be supporting this bill’s referral to the select committee—indeed, aspects of it are long overdue. I would like to deal with the four aspects of this bill in the order they appear. The first one makes permanent what has become known as “Harry’s law”, and that is a good thing in our view. Members of Parliament should not be forced to resign because of where they were born or whom they are descended from. That is why the Greens supported the changes to the law to protect not only Harry Duynhoven but, I suspect, some other members of this House last year, and that is why we support making it possible for sitting members to review any foreign passport they may already have, and to become a citizen of another country, but only where this is because of their descent or place of birth.

These changes make the law consistent. As we all know, a member can already become a dual citizen by virtue of marriage—

Hon Harry Duynhoven: That was the result of a parliamentary petition, too.

ROD DONALD: It was indeed. It was the result of somebody who, I think, must have been breaking the law, and the law was fixed up to suit that person at the time. But the changes do not allow an MP to actively seek foreign citizenship for any other reason, and we obviously want to see that situation maintained.

The bill maintains an amendment, originally proposed by the Greens, that requires an MP to resign from Parliament if the MP ceases to be a New Zealand citizen. When we were having discussions on the amendment last year, I found it extraordinary that such a requirement was not already in place. Perhaps that is because of the carry over, whereby people could stand for Parliament if they were New Zealand residents and on the electoral roll on, I think, 12 August 1975 but did not have to be New Zealand citizens. That, of course, has all changed, and it is now a requirement that MPs cannot cease being a New Zealand citizen during their term in Parliament, or they risk losing their seat. It is also pleasing to see that “foreign Princes” have been removed from our law; they are now referred to as “foreign States”. Perhaps that is yet another important step towards republicanism.

The second aspect of the bill is the change to the definition of “appropriate person” in relation to party hopping. It is a significant change, and we support it because it protects the Governor-General from getting involved in grubby politics. But the need for this amendment highlights, yet again, what shoddy legislation the so-called Electoral (Integrity) Amendment Act was—and is.

Hon Ken Shirley: It was!

ROD DONALD: I am pleased to hear my colleague Ken Shirley support me on this, because, of course, the ACT party was at the forefront, along with the Greens, in opposition to the party-hopping legislation. As I recall, Stephen Franks drafted an excellent minority report opposing the party-hopping legislation. He pointed out the draconian powers it would give party leaders and how obscene it would be if any party leader chose to exercise the powers contained in those amendments. I know that Mr Shirley also gave an excellent speech opposing giving party leaders those powers. I must say I am very sorry to find that the only party that has tried to exercise the powers contained in that legislation is the ACT party. It is a gross abuse of our democracy, and the sooner that law dies the better. The fact that the courts are now having to rule on its application is another example of the undermining of parliamentary sovereignty. This House should never have allowed that to happen—especially to have inflicted upon itself the opportunity for members, quite rightly in my view, to resort to other courts to maintain their position in this House because they believed that the Electoral (Integrity) Amendment Act was being used in an inappropriate way.

I would like to foreshadow that the Greens will propose amendments to this bill to repeal the whole of section 55E, and we look forward to support from all those parties that opposed the imposition of this draconian legislation at the time, so that we can put an early end to this sorry saga in New Zealand politics. [Interruption] Mr Shirley is vacillating now, having opposed it so strenuously before. I am not sure whether he is prepared to have the courage of his convictions now.

Mr SPEAKER: The member will withdraw that comment.

ROD DONALD: I withdraw and apologise.

The Green Party will also be moving an amendment to the third aspect of this bill. Although we support the amendment to the quorum for meetings of the Electoral Commission so that it can make broadcasting allocations with one of the party political representatives absent, we are absolutely totally opposed to both of those party political representatives being on the Electoral Commission when it allocates broadcasting time and money. It is extraordinary that the National Party and the Labour Party get to sit on a commission and make decisions about the allocation of money to every other party in this House—namely, New Zealand First, ACT, United Future, Green Party, and to any other registered party standing for Parliament. The provision is archaic and should have been abolished when first-past-the-post was abolished. Our amendments will get rid of party political appointments to the Electoral Commission.

In saying that, I do not want to impugn any of those people who have served on that commission. I am merely pointing out that it is impossible for those people to represent all the competing interests in this Parliament and of those parties out in the community who are hoping to win seats in this Parliament. Indeed, the commission has drawn that observation itself in its own reports, and if members want to read the debate we had on the 2002 general election inquiry held a few weeks ago, they will see that I had to say more on that point.

The fourth aspect of the bill that we support relates to some anomalies in the broadcasting legislation as it applies to political parties. The reason I personally support those changes is that I was on the select committee that reviewed the 1996 election, and that is when we came up with most of the amendments that are finally coming back to this House—although I have to say it is not the first time they have come back to this House. So I shall reserve judgment on the Government’s commitment to this bill until we actually see it passed, hopefully later this year, so that the commission does not have to go through the extraordinarily useless process of writing to every broadcaster in this country to see whether they will be offering discounts to political parties. That is a waste of time that has been inflicted on the commission for the last two elections, simply because this Parliament did not get its act together.

I remind this House that the amendments in this bill to the broadcasting legislation were virtually all in a bill that was introduced on 29 September 1998. That is when the then National Government recognised the need for change, as a result of the 1996 election review. That bill had its second reading in November, submissions were called for in February 1999, and the select committee finally reported back in May 1999—too late to be of any use for the 1999 election. So already the then National Government had stalled that legislation to stop it getting through. In fact, I managed to come across the speech notes I had prepared for the second reading debate, which I never got to deliver and will not get to deliver today. But I chastised the National Government at the time for dragging the chain. Indeed, on 27 May 1999 the House adjourned 15 minutes early, when the broadcasting legislation was next on the Order Paper. We could have dealt with it then. But, oh no! It was still on the Order Paper at the 1999 election. It was still on the Order Paper on 17 February 2002 when the Labour Government discharged it for no good reason that I can fathom, except that it was, again, already too late to have any benefit for the 2002 election. So I sincerely hope it will have some benefit for this next election. I look forward to the select committee dealing with it because I think there are a few things that could be improved in the bill. There is a ridiculous section now—which is hard enough to understand, let alone apply—which is that the commission will not make payment if it receives a bill from a party no later than 30 working days after the month in which the election was held. Would it not be simpler just to make it 60 days after the election was held?

I close by endorsing what the chair of the select committee, Tim Barnett, had to say about the fundamental review of the whole area of donation disclosure and State-funding of political parties. I only wish that the select committee had had what it takes to grapple with those issues here and now, rather than putting it off for some future time.

The Electoral Matters Bill is the wash-up from the review of the last election, and of the one before it. Mr Barnett claimed that this was only the second review that had ever been undertaken. That, of course, is nonsense. Parliament has reviewed its procedures from elections throughout the ages. That was really a bit of self-congratulatory pap at best, I think. There are ad hoc tinkerings associated with this bill, but it does not pick up all the recommendations of the Electoral Law Committee. That, I believe, is regrettable in itself. I think those recommendations should have been picked up.

If we look at the amendments to section 55 of the Electoral Act, firstly we see what is being referred to as the “Harry’s law” amendment. I think this Parliament needs to reflect on that, because I do not think Parliament behaved well on that issue. The law may have been unreasonable and may well have been unfair, but nevertheless it was the law, and the very fact that we are making these amendments here today underpins the point that at the time when the Harry Duynhoven issue arose that was the law. Under the current law the Speaker has no discretion, but must act forthwith and declare a vacancy. That did not happen, and I believe that is a constitutional problem that this Parliament lives with. It is regrettable. It most certainly would have been unfair on Mr Duynhoven and it may well have been unreasonable, but it was the law. The difficulty is that when the Speaker does not act when he should act, that creates a precedent. There are many, many very important constitutional matters that do require action. If the situations when the Speaker does or does not act are picked at random, there is a very serious problem, indeed.

The other aspect of section 55E of the Act is the clarification in this bill of the definition of an “appropriate person”. I agree with Mr Donald that the party-hopping legislation brought to this Parliament by Dr Cullen for overt political reasons is very bad legislation. That has always been the position of the ACT party. It is very bad legislation, and there is a delicious irony in the fact that the only party that may invoke that legislation could well be the ACT party. I have no difficulty with that, and I want to be right upfront on that. I do not believe in a taxation rate of 39 cents in the dollar. I think that is a bad, foolish, stupid law, but I pay it because it is the law. ACT is a law-abiding party. We believe in the rule of law and if the Government makes stupid laws like the party-hopping legislation, then it is the law and it does stand. So that is the situation with regard to that matter.

The other issue we have is the question of the Electoral Commission and the various broadcasting regimes. I think it is an outrage that the major parties in this Parliament have used the tyranny of the majority to ensure they both have a party representative on the Electoral Commission, which makes the determination of who gets money for broadcasting, and of how much people receive. The two major parties use the tyranny of their majority to put their own people—their own stooges—on the commission, to make sure that they queer the pitch in their own favour. That is wrong in principle. It could be argued that the commission should be independent, but I would take the argument further and ask why on earth we need an Electoral Commission at all. It is totally unnecessary. We do not need the State to dictate to us, and to set up commissions on who can advertise and on how people can promote themselves.

All sorts of anomalies still exist with that system. We seem to have a fixation that we cannot advertise on radio or television, but we can put unlimited advertising in the newspapers—as indeed we have seen in recent weeks, with the parties who had not organised their affairs very well trying to spend all the taxpayers’ money allocated to them before the end of the financial year. Parties have been engaged in great, wasteful splashes of advertising all over the metropolitan papers, just because they could not organise themselves. When someone in their offices realised there was a big bucket of money and they either had to use it or lose it, they splashed it all out on very expensive advertising. The worst example would have been New Zealand First’s advertisement, with Winston Peters’ photograph and the text of an old speech he had given. Winston Peters had an old speech printed and took up a full page of prime advertising space in the Sunday Star-Times, purely because he realised he had to spend up his allocated taxpayers’ money before the end of the year or he would lose it. He had been so disorganised throughout the year that he had not organised the spending of the budgets appropriately, so he just splashed out on very elaborate advertising.

What we have with regard to electoral broadcasting is an unnecessary and foolish restriction. Parties can have unlimited communication through the Internet or through newspapers, but somehow we have a fixation on broadcasting on the airwaves—whether it is on television or radio—and we have to have a big, elaborate State commission that sets out rules and appoints commissioners, and that the two main parties have their own stooges on. It is very bad. As I have said, we could argue that the commission should be independent, but I would go a step further and say we do not need it at all. The commission should be totally abolished; it is totally unnecessary.

Other aspects of this bill concern us. I have outlined one, the “Harry Duynhoven amendment”. It is a tidy-up, but it is also a recognition of a failure to act in a constitutional sense, which is rather important. The “appropriate person” issue in section 55E only endures for this Parliament. The Electoral (Integrity) Amendment Act was only ever to apply for one parliamentary term, so it is really almost redundant before it even comes into effect. It is after the fact, in essence. The other aspect is the electoral broadcasting regime. I have outlined ACT’s position on that. We are opposed to it, because we do not believe we need it.

The first part of the Electoral Matters Bill resurrects for us the farce of the legislation that was the Electoral (Vacancies) Amendment Act of 2003. That was a farce and no credit at all to this House and to this Government. It arose because the Hon Harry Duynhoven, a highly respected colleague, confessed that he might have breached the Electoral Act. The Privileges Committee found that was the case, with the Crown Law Office affirming that from an objective point of view. Other members were purported to have probably been in the same situation as Harry Duynhoven, but had failed to disclose it. The Government passed a bill that made a mockery of due process. The Government should have been at pains to demonstrate respect for the law as it stood, but instead in a cynical attempt turned the situation around and covered over a breach of the Act. I know that Harry Duynhoven was embarrassed about that situation, and he indicated that he would rather have had a by-election than that legislation, because of the doubt over it. It was a situation that, as the Hon Peter Dunne said in his first reading speech on that legislation on 6 August 2003, showed a preferential treatment of members of Parliament over ordinary citizens. I would go further than that and say it showed a preferential treatment of members of the Government over members of other parties, given the situation that subsequently arose with regard to Nick Smith.

However, the real issues with regard to this bill—and it is appropriate that we should review the eligibility criteria—go back to the situation and the intention of the original legislation. That was very well outlined by the Hon Peter Dunne in his first reading speech, when he said: “one has to go back and look at the intention of the clauses that were passed—going right back to 1852. It is absolutely clear that the circumstances at the time of the passage of those clauses, and their subsequent carry-through, related to a far different world than our world today. At the time of their passage, there was, essentially, the British Empire, hostile Europe, and not much else … We can even take the situation right through to the outbreak of World War II, and argue with some validity that these provisions were relevant then—certainly in the way in which we detained people deemed to be hostile aliens. But I do not think that anyone could mount a reasonable argument today to suggest that relations with the Netherlands have so deteriorated that any member who takes an action in respect of that country is breaching the intent of the provisions set out in the original bill.”

The bill outlines four circumstances when it is suggested that a seat should become vacant. Those are when a person ceases to be a New Zealand citizen, when a person acquires dual or multiple citizenship, except by descent or birth, when a person is appointed to or takes an office that involves the swearing of an oath of allegiance to a jurisdiction other than New Zealand, and when a person accepts nomination or agrees to be a candidate for election to another Parliament. In that respect, there are a couple of points to note. One is that section 55(1)(c) of the Electoral Act is not deemed to be altered. That provision states that if a person “does or concurs in or adopts any act whereby he or she may become a subject or citizen of any foreign State or Power, or entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power;”, he or she vacates the seat. That may well prove to be really too onerous. That was the situation the Hon Harry Duynhoven faced, as well. The situation whereby a person may become a subject or citizen of another country may be wide ranging. Once again, I am not sure whether it is appropriate to put such a harsh restriction on what could be an unintentional default and have a seat vacated.

Also, we should look carefully at the area of whether a seat should become vacant when a person accepts nomination or agrees to be a candidate for election to another Parliament. I can well envisage a situation whereby members of Parliament who had close family connections with Pacific Island communities, such as Samoa, were looking to stand for an office there because they were intending to leave their seats here and go and live over there, or something of that ilk. The fact is that their seats would become vacant if they even agreed to be candidates there in future—there is no time limit here. Such people may say that they will finish up in New Zealand and go over there, and that they would be happy to stand for Parliament in a few years’ time when they get there. That would be an agreement to stand, and could in itself be sufficient to bring this clause—if it passes—into effect, and mean that their seats were vacated, even though they were talking about a time in the future. I think we need to look very carefully at that. I am not sure whether it is entirely appropriate that people who have some affiliations with other countries should, in a lot of instances, be debarred from being in this House, but that is something we can look at in the select committee. I welcome the discussion that will take place with regard to that, and welcome the outcome of it. I am sure it will be an interesting discussion.

The second part of the bill relates to the Broadcasting Act. Certainly a number of things within that Act need to be clarified. These are small, largely technical amendments, and there are some interesting issues there that have given rise to unnecessary bureaucracy in the past. It is just a pity that recommendations for these changes have been around since the inquiries into the 1996 and 1999 elections, as well as into the latest one, and that it has taken all this time to address them. In particular, some of the issues are, firstly, the question of the allocation to political parties of time and funding for election broadcasting when there are by-elections. Given that by-elections are all about constituency positions and not list positions, it is quite appropriate that we remove references to giving party funding in those sorts of instances. Secondly, the bill as drafted also provides for the removal of the need to circulate to all broadcasters an invitation for free time. I know from my experience as secretary of the United Future party, and of the Future New Zealand Party before that, that we used to get a mound of paperwork around election time from all sorts of broadcasters—radio mostly—that had all been invited to say whether they would give free time. They all came back with screeds of paper—we would get those plonks of paper landing on our desks at various times through the election campaign—and basically stated that they were quite happy to provide the time if it was paid for. I think it is quite a good idea to restrict that, and to take away the huge paper war the Electoral Commission has had to handle.

I also think, in terms of the whole democratic process, it is quite appropriate that electoral parties can register right up until the dissolution of Parliament, and not up until 30 days beforehand, particularly with regard to a snap election, which can catch some parties on the hop. I think that change is an improvement, in terms of the democratic process. I think that the measure for the resolution of disputes proposed in section 77, inserted by clause 22, is also very positive. A situation can arise during elections called at short notice whereby parties are unhappy with the way that broadcasters are treating them vis-à-vis other parties, in particular, and a quick mechanism for the Electoral Commission to have the ability to resolve those disputes and give a final decision is, I think, a good thing for everybody concerned. It may be that the outcome is not a happy one, but someone simply does not have the time to go through a core process in the heat of an election and have a dispute meaningfully resolved in a situation in which it will have an immediate effect. Nobody really wants to litigate the thing after the event—it seems to be a mere academic exercise at that point. I think that a quick dispute resolution process is a welcome measure here.

United Future will support this bill being referred to the select committee, and we look forward to the discussion and debate that will surround these issues.

I commend the first reading of this omnibus Electoral Matters Bill to the House. In doing so, I want to make a number of observations about previous speakers. The Green member Rod Donald and the Hon Ken Shirley from the ACT party stood up and proselytised about the Electoral (Integrity) Amendment Act, which is also known as the “party-hopping” legislation. Integrity is an interesting term for those two people to refer to, because veritably they have gone boing, boing around this House. They have been in more parties than the honourable “member for Courtenay Place”, Winston Peters, and that has to be saying something. Rod Donald has been in so many parties—the Values Party, the Socialist Party, the Green Party, the Alliance—that if we name a party, he has bounced around it. The Hon Ken Shirley is the same. The Hon Ken Shirley gave an opinion with regard to the Electoral (Integrity) Amendment Act. ACT members railed against that Act—they voted against it, they hated it, and they bemoaned it. But ACT is the first, and is likely to be the only, party that seeks to apply it. That is the type of standard that is brought to the House by the ACT party. I regret that.

I want to commend the work of the Justice and Electoral Committee. It is a very fine committee, and the type of report that it brings to this House is excellent. It is also noted that the amendments proposed in the bill in relation to the broadcasting regime are intended to enable the Electoral Commission to allocate funds more effectively. I too regret that more work was not done with regard to the way that parties could be funded, the way that we disclosed the type of funding, and the like. That is a very important debate that must be had at another time. I want to note, though, that parties have spent taxpayers’ funds, allocated to their parliamentary services, in ways that taxpayers really need to have a good think about. National Party members have run huge advertising pages, and have stood up and said all sorts of misleading and wrong things. If that is the way the National Party wants to conduct itself—by inappropriately spending parliamentary funds and money the taxpayer has voted for it—and if it cannot manage its affairs any better than that, then it has to be said that the party is in great difficulty and has great problems.

I want to conclude by indicating that Kiwis want finality and certainty with regard to the members of Parliament who represent them. To that extent, this legislation indicates quite carefully and clearly why an MP should cease to be an MP. There are four counts: that the MP ceases to be a New Zealand citizen; that the MP has acquired dual or multiple citizenship, except by descent or birth; that the MP accepts nomination, or has otherwise agreed, to be a candidate for election to another Parliament; and that the MP is appointed to an office that involves the taking of an oath, or the making of a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign State or power. I think we all agree that we should bring those matters to some finality and give some certainty to them. I want to acknowledge the role that the Hon Harry Duynhoven has brought to bear in ensuring that in terms of our constitutional processes we now have certainty, clarity, probity, and propriety.

Bill read a first time.

I move, That the Electoral Matters Bill be referred to the Justice and Electoral Committee for consideration, and that the committee present its final report on or before 1 November 2004, and that the committee have the authority to meet at any time while the House is sitting, except during questions for oral answer, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 191 and 194(1)(b) and (c).