Legal Beagle by Graeme Edgeler


What next for Winston?

The preliminary results of the Northland by-election were released last night. A few overseas votes will be winging their way back to New Zealand, and checks will be made over the eligibility of those who cast special votes, but Winston Peters has a lead of over 4000 votes, so the official vote isn’t going to change the outcome.

This means the National Party is down one on their election result: an electorate MP has resigned, and been replaced by someone from another party. Just like when this happened in the Te Tai Tokerau by-election, and the Te Tai Hauauru by-election, there’s no way for the party that previously held the seat to get a replacement except by winning.

There has been some dispute about what the law provides in these circumstances. I am entirely confident. I believe the Electoral Commission is confident also.

Winston Peters is currently an MP, a member of Parliament because his name was sufficiently high on New Zealand First list that he got elected with the help of New Zealand First’s 208,300 voters.

Like all MPs, Peters can resign. If he resigns, then section 55 of the Electoral Act says there is ‘vacancy’. If that vacancy arises before the writ is returned then that vacancy will have been caused by the vacating of a “seat of a member elected as a consequence of inclusion of the member’s name on a list”. I do not think it can be suggested that if Peters writes a letter of resignation to the Speaker, the Speaker can do anything other than accept it, and declare a seat vacant, as has happened every other time a list MP has resigned. The Governor-General will then order the Electoral Commission to undertake the process to replace him with someone else on New Zealand First’s list.

We shouldn’t assume that Ria Bond (or anyone else from the New Zealand First list) will become an MP next week. Winston Peters probably wants to be in the House next week, and the official count isn’t due for another 10 days. After that, there’s 3 working day period in which a judicial recount can be requested, and assuming that doesn’t happen, the ‘return of the writ’, officially declaring Winston Peters to be the member of Parliament for Northland, will happen on Tuesday 14 April.

Before then, we all assume Winston Peters will resign. But Peters is not required to resign, and has said he may not. The Electoral Act does not automatically declare a vacancy if a person who is already an MP wins a by-election. He can, if he wants, simply leave Parliament one MP down on its election result total. Philip Lyth has an interesting post here asking whether it is possible that if Winston declined to resign, could the Speaker, with or without assistance from the Privileges Committee, force a vacancy in his list seat? Philip asks:

But what if the Speaker considers that a list vacancy has arisen?  This is an area where the law is unclear.

I disagree, While I still consider the result would be the same, I would have agreed with Philip (and David McGee, writing in 2005) that there was room for debate, but for one matter: late last year, Parliament enacted the Parliamentary Privileges Act. Section 23 of that act makes clear that the Electoral Act is the only mechanism by which an MPs seat can become vacant:

23 Members' seats become vacant only as provided in Electoral Act 1993

(1) The House has no power to make a member's seat become vacant by expelling the member (whether to discipline or punish the member, to protect the House by removing an unfit member, or for any reason or purpose) from membership of the House.

(2) Subsection (1) overrides any law to the contrary.

A list MP winning a by-election is something we’ve discussed before, but it’s never actually happened so it will be interesting to see how it plays out. However, if Winston does resign, then the identity of the person who will replace him is, at least officially, out of his hands. The law requires the Electoral Commission to ask the Party Secretary if the next person on the list remains a paid up party member, and if so, requires them to ask that that person whether they agree to become an MP (if not, the same process is followed with the person next on the list). The New Zealand First board doesn’t officially have a say, but there is nothing to stop it asking a particular potential replacement to say no to the Electoral Commission. This has happened before: it took some cajoling, but ultimately both Mike Ward, and Catherine Delahunty agreed to step aside to allow Russel Norman to become a list MP with the resignation of Nándor Tánczos.

I agree with Philip that some clarity in the law would be nice. In light of the Parliamentary Privilege Act, I don't think there is debate about Peters' options now, but if Peters were to decline to resign, I'm not certain what would happen if he was, for example, hit by a bus later in the year: would any future vacancy after Winston is formally elected as MP for Northland result only in a by-election in Northland, or both a by-election, and a list replacement?


Update on the Former MP's travel perk

I blogged on the government's quiet moves to "expand" the International Travel perk for former* MPs (and their spouses) on Friday. [*if they were elected before the 1999 election]. I tweeted my post on Saturday, and got some traction - enough, it seems for a couple of MPs to indicate they didn't support the change (which, as the changes are in a statutes amendment bill, would be more than enough to defeat it). I will note at this point, that while the changes do increase the current value of the perk, that is only over its value since 1 July 2014, the changes return it to the value it held before that time. However, this does not necessarily mean the changes were an oversight of which MPs were unaware when they passed the law - they language the MPs themselves inserted is very clear.

The MPs who interacted with my tweets indicated they had no idea what it was about, so I wondered whether the Government had gone through the usual process of advising other parties of their proposals (this is the process for statutes amendment bills because, with one vote being enough to defeat any amendment, the Government's wasting its time if they don't get that support in advance). I've filed an Official Information Act request seeking the background to this change, including over what information was provided to other parties, but Annette King tweeted again today:

It's nice to have this confirmed, as I couldn't see why the government would not have done it, but it remains to be seen how clear the government was about the financial cost of the change when it consulted.

Was this a mistake? I’m not sure that matters, because even if it is a simple oversight, that does not mean that it is appropriate to fix it by a supplementary order paper to a statutes amendment bill released on a Thursday, to be adopted in a single debate the following Tuesday. But let’s look at this anyway.

Parliament passes a lot of law, and occasionally, words get drafted into those laws without MPs or officials realising exactly what they mean. Many of the other laws amended in Statutes Amendment Bills over the years have been fixed such mistakes. Is this one of them?

Recall that the law we are discussing will replace the words “the lowest-cost” with the words “an Air New Zealand”. So how did the words “the lowest-cost” get in there, and should other words have been written there instead?

Importantly, the rules that the law was replacing (.pdf), did set the maximum international travel perk by reference to the cost of an Air New Zealand business class fare:

If the new law was intended to just adopt the old rules in a different place, then there was a mistake.

There was no reference to Air New Zealand in the initial version of the Members of Parliament (Remuneration and Services) Bill, but, perhaps more importantly, nor did it include the word “lowest-cost”.

And that is why we can be confident this was not a simple oversight by our MPs – the word “lowest-cost” is there because it was added by the select committee:

It was a deliberate decision. I don’t think it can be seriously suggested that, in adding the word “lowest-cost” MPs on the Government Administration Committee were doing anything other than knowingly setting the maximum international travel perk except by reference to the lowest-cost business class airfare. And we have a pretty good insight into why this change was made: the Cabinet Office advised them to.

With ministerial agreement, officials from Government Departments provide government advice to select committees considering bills. When considering the Members of Parliament (Remuneration and Services) Bill, the Government Administration Committee got advice from quite a few; primarily, the Cabinet Office of the Department of Prime Minister and Cabinet. Two bits of that advice are important: first, it noted that the bill mirrored the substance of the old rule, and then a few paragraphs later recommended the insertion of the words “lowest cost”. The advice gave no reason for this substantive change, but was adopted nonetheless.

What officials intend with particular language and what MPs intend with it are occasionally differnt. It seems possible that, in the context of other advice about how the first draft of bill might accidentally change others aspects of the International travel perk, the MPs present may have thought this change was proposed by officials to ensure the law didn’t change, or they may simply have been following departmental advice without thinking about it at all. But it is also clear that they did know exactly what law they were passing. This is not a case where a mistake means the law includes unintended language, but it may be a case of a law including unambiguous language, that everyone intended to include, knowing exactly what it meant, because they mistakenly thought that it what the old law said, and no-one could be bothered checking.

In the end, that probably doesn’t matter. What we are discussing is not whether there was an error that ought to be fixed; we are addressing whether it is appropriate to remedy any error there may have been by a supplementary order paper to a statutes amendment bill, released on a Thursday, to be finally debated the following week. And it isn’t.

Worst case scenario: former MPs taking their annual taxpayer-funded overseas holidays have to fly Business Class with Malaysia Airlines instead of Air New Zealand, or can fly Air New Zealand, but have to holiday in Honolulu or Singapore instead. That simply is not sufficiently egregious to warrant such urgency.

Of course, the travel perk isn’t the only thing being amended in this SOP. The other changes have a little more going for them, but probably still not enough to really justify avoiding the scrutiny of a select committee and the public.

Regular readers may recall a post looking at the financial incentives involved in the Te Tai Tokerau by-election, I noted that once Hone Harawira resigned, his pay and perks stopped. He got one more return flight to Wellington to clear out his office, and that was it. It seems that since the Members of Parliament (Remuneration and Services) Act entered into force, MPs who resign don’t even get that final office-clearing return flight.

That was apparently an oversight, and the type that could properly be fixed in a Statutes Amendment Bill. But, while I can see why the Parliamentary Service might want to remedy it quickly, I’m not sure that the consequences of waiting for the next statutes amendment bill (there seem to have been four going through various stages during the last Parliamentary term) are so dire that the ordinary processes shouldn’t be followed. There will, no doubt, be several legislative tweaks in the next one, that just missed the cut-off for this one, and will have to go unremedied for that extra year. I assume in this instance retiring MPs would simply be advised to clear out their offices while they’re still MPs (and some might give notice that has their resignations take effect a couple of days later to allow this to happen). This isn't going to see the IRD unable to collect hundreds of millions in taxes, or convicted burglars set free.

But, while I don’t think the other changes this SOP brings in need to be processed so quickly, you choose your battles, and I’m probably ok with them, while noting that we send bills to select committees for goods reasons, and one is that sometimes that gives officials, or members of the public, the chance to pick up mistakes. I can’t see a problem with the others changes, but I’m certainly not going to declare them error-free. MPs can object to individual clauses in a statutes amendment bill, so an MP could object to the bit amending the travel perk while allowing the other bits to stay.

So the question we now have, is, will this pass? It only needs one vote against, but it’s a bit of a movable feast. I have the Stuff story open in four different tabs, carrying four slightly different stories. The first notes (I think based on tweets) opposition from a range of MPs, but that has gone from later versions of the story. The latest story I have seen indicates that Annette King has shored up support from New Zealand First and the Greens. We may find out on Tuesday.


MPs to vote on raising international travel perk

I don't really need to post this, as Idiot Savant of No Right Turn has beaten me to itBut, because I've written about the former MP's travel perk before, I thought I'd do it anyway.

For a reason it is yet to explain, Parliament is about to consider increasing the international travel perk for people who were MPs before 1999 by around 80%. Under the Members of Parliament (Remuneration and Services) Act 2013, it is set at around $11,000 per year now (see calculation below). Simon Bridges wants to increase it to around $20,000 per year.

A few years ago, they were updating the law around MP's pay and entitlements, and I told a select committee they should abolish the international travel perk that MPs who were members prior to 1999 still get on retirement:

Travel Entitlements of Former Members

I submit that all provision of travel entitlements for former Members should be abolished.
The justification for the continuation of this provision is that MPs at one point gave up a salary increase, and received the travel entitlement instead. That three- or six-year period in the 1970s for which MPs were “underpaid” was remedied with above-inflation salary increases, shortly thereafter. This tradition continues apace, which the salary increases of both ordinary members and ministers still exceeding inflation.
The vast majority of former members of Parliament who now benefit from this entitlement never suffered the “loss” that justified it. It was never a condition of their terms of employment, and was not factored into salary determinations in the way that MP’s direct travel entitlements were.

It is now 14 years since the entitlement was abolished for newly retiring MPs. Those who have even the remotest claim to have suffered through its removal have now had a minimum of 14 years in which to enjoy it. This is long enough. Whatever loss they may have endured, they have now been more than compensated.

I accept that former Prime Ministers may be in a different category, but consider that their needs are met by the provision of the annuity.

We can be grateful for the service of members of Parliament, and for the sacrifice of their families, but members of Parliament are well remunerated, and have been for a very long time. There is no justification for continuing this perk, and it should be abolished.

I remain of that view. And at the very least, the level of the international travel perk should not be increased. Next week, perhaps as early as Tuesday, MPs are going to get to vote on whether to do just that. Only a few current MPs will benefit from it when they retire (you have to have been an MP before the 1999 election), but it also benefits already retired MPs.

The change is pretty simple. The current maximum allowed international airfare subsidy for retired MPs who qualify is 90% (some former MPs get less based on the number of terms they served) of the lowest cost business fare between New Zealand and London is, as at July 1 of that year: for both them, and their spouse. They don't have to fly that route, or fly business class, but that's how the maximum is calculated. A quick check of webjet, suggests the cheapest business class return fare from Auckland to London is a little over $6000 (flying Malaysia Airlines), so the maximum annual rebate is currently around $11000.

For many, perhaps even most, New Zealanders, that would be a once-in-a-lifetime trip. Qualifying retired MPs and their spouses get up to that level of international travel every year.

The Government's proposed law change is simple: in the calculation of the maximum rebate on International travel, it replaces lowest cost business-class return fare between Auckland and London with an Air New Zealand business-class return fare. For former MPs who qualify for the perk, this will increase the maximum rebate to around $20,000 a year.

And don't think this is about supporting our local airline. Former MPs can still fly whichever airline they want. Air New Zealand is simply used as a means to increase the maximum allowed rebate for international travel.

So the change is, I think, an unnecessary one. But what makes the proposed amendment particularly dodgy is that it is being done through a statutes amendment bill, after that bill has already been through a Select Committee.

Statutes amendment bills are supposed to be for non-controversial technical changes. They group together a lot of semi-important changes to a whole range of unrelated legislation (this bill amends over 30 laws - included the Forests Act 1949, the Heavy Engineering Research Levy Act 1978, and the Tokelau (Territorial Sea and Exclusive Economic Zone) Act 1977) and they tend not to get much press. People can have a say, but you have to wade through quite a bit to actually find out what's in there, and even I don't always have the time to do that. But, of course, you can't have a say if the change is added after the bill has been through Select Committee, and passed its second reading.

The amendment was introduced on Thursday. According to Gerry Brownlee's business statement, it may be voted on as early as Tuesday, and if previous experience of statutes amendment bills is anything to go by, it could pass its final reading on Thursday.

There is one out. And it's a good one. Any provision in a statutes amendment bill has to be agreed to by all MPs. It only takes one "no" vote in the House's committee stage to remove a provision from a statutes amendment bill.

If this law change passes, every single MP will be to blame. And if it doesn't, we'll have @PhilipLyth to thank, along with whichever MP decided to step up. Without his tweet, I'd have had no idea.

— Philip Lyth (@philiplyth) March 13, 2015


The Northland by-election; or The so-called Tizard Effect

When New Zealand adopted the mixed member proportional (MMP) voting system, Parliament had a bunch of choices to make about the detail of its operate.

With the Northland by-election, we are temporarily getting a lesson in two of them:

  1. That the rules we adopted for MMP mean the proportionality of the House of Representatives is only important after the general election, not to changes between elections.
  2. That counter-intuitive things can happen a list MP wins a by-election (whether from the same party as the MP who has resigned, or a different one).

A full explanation follows, but the too long didn’t read for those of you here simply because someone provided you a link from twitter to clear up some confusion is:

  • If Winston Peters win the Northland by-election, he has the option of resigning as a New Zealand First list MP.
  • Any list MP who resigns is replaced by the next person on the list, In the case of New Zealand first, this is Ria Bond. Assuming Ms Bond is still a party member, and want the job, she would become a list MP, in addition to Winston becoming electorate MP for Northland.
  • If this happened, National’s number of MPs would stay at 59, down from the 60 they had after the election result was declared, and New Zealand First’s parliamentary strength would increase to 12.

There are good reason why we should do it another way, but there are also good reasons why it shouldn't, and this is the way we’ve chosen to do it.

If you are reading this because you live in Northland, you still have time to enrol to vote in the by-election.

Proportionality is set at the election, not necessarily after it

Under the system of MMP we adopted proportionality only matters at the general election. If an electorate MP from one party resigns (or dies, or otherwise leaves Parliament), and an MP from another party wins the resulting by-election, the overall proportionality of the House changes.

This has already happened a couple of times: When Labour electorate MP Tariana Turia resigned, Māori Party candidate Tariana Turia won the Te Tai Hauauru by-election, and the number of Labour MPs, which had been 52 at the 2002 general election fell to 51, and the number of Maori Party MPs grew by one. A similar thing happened when Hone Harawira resigned as an electorate MP for the Māori Party, and was replaced in the Te Tai Tokerau by-election by an electorate MP standing for MANA (also as, it happens, Hone Harawira). But the same principle also applies if the replacement is a different person. If Labour's Willow-Jean Prime wins the Northland by-election, Labour gets an extra MP, and National stays one below its result at the general election.

You might think that in the event a candidate from a different party from that which previously held the seat won a by-election, the party winning the by-election should lose a list MP, and the party which had the MP resign from it should gain a list MP, so that overall proportionality is maintained with the party vote at the preceding general election. There are good reasons why you might do this, especially if the proportionality of the party vote is considered particularly important.

But the simple point is that we don’t. If you look at section 55 of the Electoral Act, you will see all the ways in which a seat can become vacant in Parliament. The seat of a list MP cannot become vacant because a candidate for their party won a by-election in a seat they didn’t previously hold. Look through the rest of act, and you simply will not find anything that says we ensure proportionality remains after a by-election is held.

There are also good reasons why we don’t do this. Sometimes it simply can’t work, for example, when a party not previously in Parliament wins the by-election (which the Maori Party and MANA both achieved). And redoing the list seat allocation after a by-election to ensure proportionality could also completely muck around Parliament.

Winston Peters has announced that he is running in the by-election in Northland, but imagine if, instead of being held in 2015, it was held in 2009, after an election in which New Zealand First got 4.07% of the party vote. The current rule we have is that he would simply have become an MP, replacing the person who previously held the seat, but if we re-did the list allocation, then National would have lost three MPs, and the Greens and Labour one each, so that New Zealand First could have gotten the five MPs their votes and threshold-busting electorate seat would have them get in a proportional Parliament. You can probably see why we don’t do that, as it could easily be very destabilising to Parliament. Of course, in a very close Parliament, like the one we currently have (where, for example, the government’s reform of the Resource Management Act had support of 61 MPs and opposition from 60), not doing it can have the same effect.

By-election-winning list MPs

The possibility of a list MP winning a by-election has come up before, but hasn’t actually happened. Two sitting National list MPs have contested by-elections: Melissa Lee ran in the Mt Albert by-election, and Hekia Parata in the Mana by-election. There were suggestions that Labour list MP Phil Twyford might seek Labour’s nomination for the Mt Albert by-election, but he ultimately withdrew his name from consideration, possibly due to the so-called “Tizard Effect”.

The Electoral Act does not explicitly cover what happens if a current list MP wins a by-election, but most people who have thought about it (ie. me, Andrew Geddis, David Farrar, the Chief Electoral Officer, and the fine staff at the Electoral Commission) generally agree what it means.

If a list MP wins a by-election, they would become the MP for that electorate, but could resign as a list MP, and (like every other resigning list MP) be replaced by the next person on the list.

This could happen whether the by-election winner was from the same party as the MP whose resignation (or death etc.) led to the by-election (thus helping to maintain proportionality), or from a different party (changing proportionality).

The possibility that voting for one person as your MP might result in an entirely different person being elected to Parliament, is known in some circles as the Tizard Effect in honour of former Labour MP Juduth Tizard. There was speculation (or fomented mischief?) that with the new leadership of the party wanting a break from the past, decisions about Labour’s selection for the by-election in the safe Mount Albert electorate were affected by the prospect of Ms Tizard's return as a list MP, if another list MP was nominated.

A list MP winning a by-election hasn’t yet happened, and there are some differences of opinion over the exact process. I’m of the view that the resignation would have to happen before the writ for the by-election was officially returned, but I understand that the Chief Electoral Officer disagrees.

The decision of the by-election-winning list MP to resign is up to them. If they don’t resign, they’re not replaced as a list MP because no vacancy has arisen. They wouldn’t get two votes in the House, or two salaries. If they don’t resign at the time, but then die a year later, I have no idea whether they get replaced once as a list MP and once through a by-election, or just through a by-election. The Electoral Act isn’t especially clear on this point.

Everyone assumes a by-election-winning list MP would resign to allow their party an extra MP, but they could decide not to (if for example, the next person on the party list, has, since missing out at the list at the general elect acted in a way in which means the party no longer wants them as an MP. One of the odd oversights in our electoral law is that the law provides a variety of circumstances in which an MP is forcibly sacked (eg conviction for an offence punishable by two or more years in prison), but it does not apply these rules to replacement list MPs.

It seems likely that at some point, a list MP will win a by-election, but I’m not sure it is likely to be now. Nominations close on Tuesday, and voting in the by-election will be on Saturday 28 March 2015, with advance voting and overseas voting starting on Wednesday 11 March. If you live in Northland, you can check your enrolment here, or can freephone 0800 36 76 56. You can also do this if you don’t live in Northland, but it is slightly less urgent for you :-)


Wellington Super City? Not even if it’s the best idea ever.

The Local Government Commission has released a Draft Proposal for Reorganisation of Local Government in Wellington.

It proposes a region-wide governance structure, with a single overarching council replacing the Greater Wellington Regional Council, the Carterton District Council, the Hutt City Council, the Kapiti Coast District Council, the Masterton District Council, the Porirua City Council, the South Wairarapa District Council, the Upper Hutt City Council and the Wellington City Council.

I have not read it. I do not care what arguments it arrays in support of its conclusion. There is simply no conceivable rationale that could lead me to vote in favour of one.

The super council may be literally the Best. Idea. Ever. We may be literally 100% certain that every positive outcome suggested will be achieved, and every negative fear unrealised, and I will still not vote in favour of it, because the law under which local government reorganisations occur is now so appalling, I will refuse to endorse a result I cannot be certain is widely supported within the whole region, whatever my own views (presently sceptical).

The law used to be different. Until December 2012, the basic system was:

  • The Local Government Commission would look into suggestions for reorganising local government in an area.
  • After consultation, it would make a final recommendation, and if it proposed a reorganisation of local councils, then each of the districts affected would hold a referendum of their residents and ratepayers, and if a majority in each affected council area agreed to a reorganisation, it would happen.

This is the process which was used in 2005, when referendums in the Banks Peninsular District and Christchurch City agreed to the dissolution of the Banks Peninsular District Council, with that area’s inclusion in Christchurch.

That is not the law now. In 2012, the National Government amended this law in a couple of important ways:

  • The requirement to hold a public vote was abolished. This was replaced with a provision allowing a vote if 10% of the voting age residents of an affected area signed a petition within 6 months 60 working days requiring there to be a vote. Given voter engagement in local body issues, a petition requiring that many signatures in that amount of time will generally be a major undertaking, and seems designed to avoid seeking public approval (although in this instance it may not be, given that one of the affected areas – a proposed changes around the Tararua area – affects 11 property owners).
  • More importantly, the referendums have been replaced with a referendum. And that “S” is crucially important. Rather than holding a vote in each affected area, a single vote is held over the whole area. This means that the residents of one area who are perfectly content with their current local council can have their local council taken away from them if the residents of another area decide to compulsorily acquire it.

Like all government, local government is a question about priorities. Will rates come down under a super council? I don’t know. Will services increase? I don’t know that either. But if the majority of residents in an area with a functioning district council are happy to pay higher rates, or receive lesser services in exchange for local control of their local affairs, that should be a matter for them.

The new rules for reorganisation of local government disagree. They say that the people who should have the greater say over how Masterton and Upper Hutt are governed are not the residents of Masterton and Upper Hutt, but the more numerous residents of Porirua and Wellington City.

I am sure some members of the South Wairarapa District support a super council: based on an un-sourced tweet I saw a few days ago, as many as 15% of the ratepayers in the area may be Wellingtonians, and others might see benefits in economies of scale, or greater region-wide co-operation. But I do not know whether a majority in the South Wairarapa District will support it, and I will not risk being a part of a region-wide majority that forces them to abandon their present local council against their will.

And  whatever your view on the merits of a super council  if you get a vote on it, neither should you.