Legal Beagle by Graeme Edgeler


Think it possible that you may be mistaken

I don’t like advertiser boycotts; especially not boycotts of advertisers for the content of the programmes during which their advertising appears, and especially not if that programme is news or current affairs.

Yes, free speech has consequences. But the exercise of free speech in response also has consequences.

There are several aspects to this. I do not think that advertisers should exercise control – even indirectly – over content. For advertisers, the programming is the medium, not the message; a programme is a conduit to the audience of a broadcaster, not something they should generally been seen as supporting. Especially when we are dealing with news or current affairs, those advertising during a particular programme should not be seen as endorsing the views expressed in it. And I think that if people generally treat advertisers as bearing responsibility for editorial content, they are more likely to either want some control over it, or to spend their advertising dollars in a way that has that effect.

We have ad-supported broadcasting. While there might be a place for a real public broadcaster, most of the radio and television we have will continue to be ad-supported. I like that there is a variety of things to watch and to listen to (most of which I don’t). But if we really start holding advertisers to account for the content of programmes or channels on which their ads appear, then they will be more circumspect about placing ads, and some voices may be lost.

That is not to say that those calling for boycotts should be stopped. Their speech is just as worthy of protection as the speech they seek to shut down. I simply ask that they consider not only the consequences of the speech they are protesting, but also the consequences of the speech they engage in.

I may agree that the speech targeted in one boycott is ill-considered, or harmful in some way, but next time a boycott succeeds it might have the effect of reducing speech I like, or think is valuable. Targeting Freeview over something Willie Jackson and John Tamihere have said, or Heritage Hotels for something Paul Henry said over which they had no control (and shouldn't have control) in order to punish their broadcasters for airing them, isn't fundamentally different from arranging a boycott of Four (or Mediaworks) for airing an episode of South Park about the abuse by Catholic clergy, or someone else for airing pro-homosexual propaganda like Queer Nation or The L Word.

I think liberal non-racists outraged about Paul Henry should be able to call for a boycott of him, and all of TVNZ, and the advertisers who support TVNZ. I think conservative Christians should be able to call for a boycott of The L Word, and the channel it appeared on, and every advertiser who supports that channel. But I think if they do, despite that being an exercise of free speech, it will be bad for free speech.

Threats of advertiser and consumer boycotts force companies to be more conservative, leaving out voices. Those voices may still be able to get through, but sometimes, they won’t. And sometimes that will suck.

Sure, it might not happen following any particular boycott or campaign: it’s a risk, not a certainty. But it is not a fanciful risk.

We have had quite a number of successful (and partly successful) protests against speech some consider offensive over recent years. Paul Henry went from Breakfast, and Willie and JT have gone (for now, at least) from Radio Live. Of course, it’s not just radio and television broadcasts that are affected by angry consumers; after a campaign against Ian Wishart’s book Breaking Silence: The Kahui Case, which told Macsyna King’s story, a number of major book sellers, including Paper Plus, The Warehouse and Mighty Ape, announced they would not be selling it. TradeMe apparently banned its resale. Whitcoulls, to its eternal credit, announced that they preferred to read the book before denouncing it, and continues to sell it to this day, while the Booksellers’ Association put out a wonderful statement reminding everyone that no-one was trying to compel anyone to read it, and reinforcing the dangers of banning books because some don’t like them.

Other books too feel the wrath of an angry public. Earlier this year, a similar (if smaller) campaign against Ted Dawe’s award-winning young adult novel Into the River, saw it removed from some bookstores, and others put up warnings.

Of these recent examples, Paul Henry is an outlier, as he was just trying to be funny. But with Willie and JT, Breaking Silence and Into the River, we do not have people being shocking for no real reason. Rather, we have people who have said things that they consider important, others who agree that there is a need for their speech to be heard, and others who, equally honestly, consider it just as important that their ideas are silenced as much as possible.

The speech recently being denounced as “victim blaming” does not come from people who think they are victim blaming. Much of the advice they give they see as information that would help stop some women and girls from becoming victims of rape or sexual assault. Their opponents view their speech not only unhelpful in this regard, but dangerous, instead having the effect of reinforcing the views of some that there are people who are asking to be sexually assaulted, and discouraging the type of support that would make it easier for victims to seek help. And there are others who honestly believe that that message is dangerous, because they see it as falsely telling women and girls that there is no action that they can take to make themselves safer, which they view as increasing the likelihood that some people will be raped. They cannot all be right, but those who are wrong are misguided, not mal-intentioned. They have vastly contrasting views, but for the most part, they honestly believing that the expression of their views has a chance of decreasing the incidence of rape, while that of those they oppose, will tend to increase the numbers of victims.

This duality is often the case in calls for the silencing of certain viewpoints. With Ted Dawe’s Into the River, the debate is between those who fear the book will encourage young people to follow in the hero’s footsteps or expose them to material they will not be able to process, and those who think it will instead help. Author Bernard Beckett (who was one of the judges of the New Zealand Post Children’s Book Awards at which Into the River did so well) responded eloquently:

Finally, although you may not agree with my judgement, ours must not be portrayed as a disagreement between the moral and the apathetic. Those of us who believe in literature like this are as driven to make a better world for our children as those who oppose it. Nor is this even a disagreement about what stands as moral, for I too seek a place where the young may move with safety and joy, live in respect and tolerance, and form healthy, nourishing relationships. To the extent we do disagree, it is about the way this book will be read, and more broadly, the way that reading will influence world view and behaviour. These are difficult questions, to be approached with a cautious and open mind, and crucially, with careful study and evidence to support one’s case. Do that, and there is a chance we can move together towards the sort of world we all desire. Turn this into a tribal war, between the putatively decent and depraved, and everybody suffers.

The point Bernard makes about the potential for everyone to suffer when it is people – rather than ideas – that are attacked is an important one. Even adopting the perspective of someone who considers certain speech dangerous, there is still the risk that seeking to silence an opposing view will do more harm than good, and not just because of a potential “next” boycott.

Supporters of the boycott of Radio Live and its advertisers were hoping to silence the speech of those they see as placing blame on victims of rape – a view that they consider has the effect of emboldening those who victimise women, and which they believe discourages rape victims from seeking help, and attaining justice. They consider the view that victims of sexual assault could have chosen to wear different clothes to lessen their chance of being victimised as dangerous speech.

Of course, those views are still out there. The diminished reach of Willie and JT personally does not diminish the extent to which the views to which they gave voice are held within the wider community. So removing Willie and JT’s audience from them isn't going to attack their real concern – the prevalence of these views within the broader community.

How do we solve this? Well, it’s partly generational; as the more conservative older generation dies, some of the views they hold die with them. If you grew up in a society where these views weren't just accepted, but encouraged, and perhaps no one spoke against them for a very long time, it is probably naïve to expect wholesale change.

But for someone who views this speech as dangerous, a generational change isn't fast enough, so they need to change some minds. Some people will be incorrigible. Others just haven’t heard that single argument that will convert them. Most will be somewhere between.

But the numbers who will accept the error of their ways because Willie and JT are no longer on Radio Live between noon and 3:00 pm on weekdays are vanishingly small. You are going to need to persuade people, and accusing them of “victim blaming” or being “rape apologists” isn't going to do it. But you know there are some reasonable people out there, whose minds can be changed, and society changed along with them.

What if – after listening to the original interview, and to the apology – you decided that the hosts were a lost cause, but you didn't think their audience was, and certainly didn't think everyone in their audience was, and you formed the view that there was a chance you might successfully expose some of them to alternative views: to get at least some of them to think about the damage that can happen when a victim’s choices are scrutinised, and a perpetrators are minimised.

Willie and JT’s audience has heard an interview full of crass behaviour that you consider damaging, but few of them are reading twitter, or blogs. And they’re not going to look for an alternative view themselves.

In reaching these people, the campaign against Radio Live, against their advertisers, and against Willie and JT, did not help.

The continued campaign against Willie and JT did not to stop them blaming victims of rape. In fact, they’d already stopped. In the days after the interview with Amy was posted on-line, and the apology that followed, but before Willie and JT were placed on leave, it was completely off the agenda. But it wasn't only “victim blaming” that was banned at Radio Live. After Matthew Hooton’s (dis)appearance, Radio Live didn't simply ban their show from airing content critical of victims of sexual assault, but all discussion of the Roast Busters, and of rape culture. Discussion of Willie and JT and their behaviour was off the agenda as well. Because that is what happens when, even for a broadcaster that somewhat courts controversy, something becomes simply too controversial; however great the public interest in these issues was, it wasn't worth the risk of further brand damage, and they were going to play it safe.

Where does a progressive, or feminist view of rape culture have an audience in the commercial media the size Willie and JT had on Radio Live? Well, Amy had that audience for ~10 glorious minutes, where she gave better than she got. But anyone who wanted to support her to that same audience a few days later couldn't. Not because the producers of Willie and JT’s show don’t want to give voice to people who disagree with Willie or JT, but because Radio Live had been cowed into silence.

I’m confident there were many of them. I saw enough comments of people who couldn't get through, or who were cut off from the talk back audience when they started discussing Willie and JT’s interview, or attitudes toward victims of sexual assault, to imagine that Radio Live’s regular afternoon audience were missing out on hearing a lot of perspectives they don’t usually hear. These were people trying to take their stories, and the stories of friends and loved ones affected by rape culture to an audience that doesn't often hear their voices, to an audience in the one of the places where these seldom-heard views might do the most good.

But they, too, were silenced, because Radio Live banned not just the speech their critics consider wrong, but also banned speech they would consider helpful. How many minds could have been changed if the response to Willie and JT was not to contact their advertisers, but to contact their switchboards, and flood the airwaves with the views of those appalled at their treatment of Amy? We’ll never know, but I’m guessing it would have been more than were changed by their silencing.

There isn't going to be less speech because Willie and JT are off the air – someone will fill the airtime – but it is at least possible (if not likely), that the speech that remains will be more homogeneous. And if that isn't the case once Radio Live’s early afternoon slot is filled, then the next ‘success’ or the one after that may. It certainly seems exceedingly unlikely that any boycott of this case will have the effect of increasing the range of voices on our airwaves.

The campaign to get Willie and JT off the air, and advertisers boycotts, and boycotts more generally, like the public pressure that led to major booksellers not stocking Breaking Silence, and others to cease selling Into the River, fall into a group of expression that that is aimed not at counteracting the ideas expressed by an individual, but at seeking to limit their opportunity or desire to speak in the future. And this, beyond my concern about greater advertiser influence over our airwaves, and more conservative broadcasters generally, is what I find most concerning.

As a matter of principle, I do not see that placing pressure on advertisers to, in effect, rein in an errant broadcaster is fundamentally different from other pressure placed on an individual to simply not speak. Both are exercises of freedom of expression, and both are aimed at people, not ideas.

Many women in public life – whether politicians, or business or union leaders, or public spokespeople for important (or not so important) causes – face heightened scrutiny. Photo-shopping the head of a female politician onto the body of adult film star is an exercise of free speech, as is publicly commenting upon which people you consider are ugly, and who you would like to “do”. But it is speech that risks discouraging other ideas from being expressed. Unless you are lucky(?), one photo probably won’t have that effect, but the repeated hostility toward women in public view undoubtedly discourages other women from standing for office, or speaking out.

Now, some people engaging in such speech will consider that a particular female politician is dangerous, and is pursuing policies detrimental to society at large. They may be saying things they find offensive, and it is possible that by reacting to that speech in a way calculated (or potentially having the effect) of discouraging them from speaking will cause their ideas to spread less widely. In the same way that a boycott removing Willie and JT will stop them spreading their ideas widely, derogatory remarks about someone like Sarah Palin, or Pauline Hanson, or Helen Clark, may affect their ability to disperse their ideas – they may be taken less seriously, and others may be more reluctant to come forward at all.

Consumer boycotts such as those I've discussed above, and misogynistic comments about female public figures have the same ultimate aim: to silence people, or to ensure that the audience for their expression is as small as possible. There are other examples: like loud protests designed to drown out the voice of a controversial speaker invited to a university campus, or the outing of an anonymous author of a blog. And it would be great if they happened far less as well.

Of course, they are themselves an exercise of freedom of speech, even if it is speech that detracts from the marketplace of ideas. I am not proposing that advertiser boycotts should be prohibited. Nor do I think advertisers should be forced to support programming that they do not want to. Nor that bookstores should be forces to stock particular books. And banning personal criticism of politicians, whatever their stripe, and however distasteful, isn't a goer for me either.

But I would like those who engage in this sort of speech to take more care.

If you were considering boycotting Whitcoulls over its decision to stock “Breaking Silence”, it would be great if you could weigh into your decision the effect it might have on overall free speech, and the possibility you may in the future not be able to readily buy books they might want (or even that fewer people will read books you think should be read widely if they aren't readily available).

I would welcome your considering the extent to which you are actually harmed by a decision by Whitcoulls to stock the book, and weigh that against the potential harm you, others and free speech overall could face, when reaching a decision over whether to enter into a boycott. In some cases you may consider the harm so great, and the risks low enough that a boycott is justified, but other times you will not. It is likely I will disagree with you most of them time, but I cannot expect my views to hold sway in a democratic society.

In the case of a broadcaster, or a bookstore, as well as there being other broadcasters you agree with, or books that you like which may face a boycott (if one succeeds, it seems likely that more will try), there is also the concern is that some bookstores may simply become more conservative out of fear of bad publicity. It is probably less likely to happen in New Zealand than elsewhere, but it was not all that long ago that books about any number of progressive issues would have been highly controversial.

In the United States, some major movie theatre chains just won’t air films which receive an R rating from the MPAA (and some department stores won’t stock the DVDs). In some cases (“The King’s Speech” is a good example) film-makers release PG-13 edits of their films for the American market. Sometimes they do not. It’s not that the theatres would have faced a boycott if they’d aired the R-rated version of “The King’s Speech”, they probably wouldn't. But it didn't even get that far.

These boycotts follow from consumer action, but have the effect of basically stopping some people (e.g. in towns where the only cinema or cinemas are part of those chains) from seeing certain films. Of course, if they really want to, they can get the film out on DVD or whatever, but people who think “we should see a movie.” “What’s on?” “The King’s Speech.” “I heard that was good” will just miss out.

Should movie theatres be forced to show R-rated films they really don’t want to show? Of course not. But wouldn't it be better if the fear of consumer protests didn't cause them to make a blanket decision without consideration for the merits of a particular film?

Please don’t protest in a way designed to diminish the free speech of others, or at least be very careful before you do; as one day you may wish to rely on that free speech. Consider the golden rule: would I support these actions, if someone was doing them to me? Or am I wanting to silence someone simply because I do not like what they want to say?

If we move to ban speech because of the harm some people consider it poses, ask yourself, whose perception of harm will we use? Some people really think that telling women and girls that their choices cannot decrease their chances of being raped is dangerous. What if they convince enough people that your ideas are harmful?

In words of Oliver Cromwell’s that I discovered through Jacob Bronowski: think it possible that you may be mistaken. And if that is a step too far, consider that the actions you take may actually harm your cause. Or you may find your campaign not only silences those who have said something you vehemently disagree with, but also those who are fighting your cause – like those who wanted engage Willie and JT’s audience over the effects of rape culture, and couldn't, because of the pressure Radio Live was put under.

And if I am loudly saying things you disagree with, ask yourself whether it would be better if you silenced me, or if you changed my mind.


Last Minute Lobbying: MPs' Pay

The Members of Parliament (Remuneration and Services) Bill passed it's second reading yesterday. It it expected to come up for its committee stage tomorrow (EDIT: I am now advised that this is not the case).

The committee stage is the opportunity for the House of Representatives as a whole to closely scrutinise legislation. Select Committees do the hard yards of close scrutiny (or at least they should), and it is generally too late to make major changes, or to reverse major policy decisions, unless the government is using the chance to hurry through some changes that should have been notified earlier, or to fix some mistake a select committee either missed, or caused.

However, every so often, the opposition has the opportunity  to ask the government to look again at one or other aspect of a bill. And sometimes, the government listens.

I have already shared my thoughts on the MPs' Pay bill. I don't intend to rehash them. I won some. I lost some. I was pleased to get some recognition of my view that the law does not currently allow mid-term list MPs to be paid (has Paul Foster-Bell, Claudette Hauiti, or Carol Beaumont declared a conflict of interest in the voting on this bill?), and surprised that my suggestion around death benefits for the families of just-retired MPs was not followed, but that time has passed, and I'm over it. However, there are a couple of pretty minor matters that I will take this opportunity to ask MPs to reconsider.

First, is the proposal advanced by independant MP Brendan Horan, that would see MPs' salaries set once per term, just before the election, to cover the whole three years of the following term of Parliament. People would stand for office, and we would elect them, knowing what they would be paid. This seems a no-brainer for MPs. There is no reason why they need annual increases in salary; nor any reason why they should get their pay increases backdated. The advice of officials was that:

  1. While the intention of submitters seems to be to seek to take some of the ‘heat’ out of the issue, fixing the period in this manner may have the opposite effect if it results in the Remuneration Authority making a higher than usual award in the interests of providing for circumstances that may arise in the following three year period

I acknowledge that the officials may be right. We won't really know until it happens (if it does), but given that an election will intervene before anyone gets the increase in salary, my guess is that they're wrong. People will still whine, no doubt, but given that the higher salaries will be going to people we choose to receive them, I don't think we will be quite as aggrieved: it's up to us to choose people we think are worth it, and we'll know what we're paying them before we do.

The second is the proposed penalty for MPs who are absent without leave. I submitted that one wasn't necessary - the penalty for bad MPs is that voters can punish them or their party at the next election - but that if there is to be one, it shouldn't be laughable. The current proposal is that absent MPs will lose 0.2% of their salary each sitting day they are away without leave (ignoring up to three days each year). There are only around 90 sitting days in a year (I counted 93 in 2012), so an MP who skips absolutely all of them for no good reason, will still keep over 80% of their salary. This isn't as laughable as the unenforced $10 per sitting day the law currently provides, but it is still a pretty minor penalty, and is out of proportion with the penalty for suspended MPs (who lose 0.2% of their salary per day of their suspension, not per sitting day). Somewhere around 0.5% per sitting day would bring these closer to parity.

No-one has yet put up an amendment to bring my second suggestion into effect, but it's not too late for an MP to come forward. I also urge the MPs who read this before tomorrow's committee stage to seriously consider supporting Brendan Horan's amendment around a three-year salary.

Finally, and I know I said I was over it, but if someone can come up with a good reason why my proposal to change the rule around the support for the families of dead recently-retired MPs wasn't changed, I would welcome it. The reason there is so stark a distinction in the help provided to the family of an MP who retires at a general election, and then dies the day before that election, and those who retire and then die the day after the election, escapes me. I hope it never comes up, but this just seems mean.


Fact check: Q+A on mayoral resignations

I have just finished watching Q+A on time delay. In it, both former National Party President Michelle Boag and Unite Union head Matt McCarten made the claim that if Len Brown was to resign before before sworn in for his second term as mayor of Auckland City, that the second-placed candidate would be declared elected and be sworn in.

This is false.

Whatever the reason any New Zealand mayor-elect may not take up office, the result is a by-election. If a mayor (or councillor) leaves office during the term, there is a by-election unless there are less than 12 months to the next full council election.

If a mayor-elect dies, or is disqualified between the vote and the swearing in, there is a by-election. The runner-up can never simply assume the office of mayor. The Local Electoral Act simply does not allow it. I suppose it could. But as that would be really really stupid, it doesn't.

The legislation is clear. The Council of the Auckland "super city" was created under the Local Government (Auckland Council) Act. Section 8 of that law applies the Local Electoral Act to elections for the Council, including the mayoral election. Section 117 of the Local Electoral Act includes the following:

If a vacancy occurs in the office of a member of a local authority or in the office of an elected member of a community board more than 12 months before the next triennial general election, the vacancy must be filled by an election under this Act.

This includes the mayor (see the definition of 'member of a local authority' in section 5).

I do not expect everyone called upon to comment on the political ramifications of matter affected a local body mayor to know this. Before I was asked a week or so ago, I wasn't certain of this. But, seriously, why would you not check before making this claim? And if you are a journalist covering the matter, and are going to be on a panel discussing the possibility of a resignation, why would you not find out what would happen if there is a resignation?


The Review of Standing Orders

For anyone particularly interested, my submission on the triennial review of Standing Orders follows. I hope I picked up at least some things that at least some of you would like changed. If there's anything you'd like to see changed, submissions closed yesterday, but are - for the moment at least - still being accepted on-line. Alternatively, comment here, or on David Farrar's submission, and maybe someone somewhere with the power will read it :-)

Review of the Standing Orders

Submission of Graeme Edgeler


My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in parliamentary procedure. I thank the committee for the opportunity to make a submission on the Review of the Standing Orders. I would welcome the opportunity to speak to my submission.

My submission addresses a number of discrete aspects of the Standing Orders, perhaps of particular interest to members of the public. I suggest consideration should be given to amendments in the following areas:

  • Issues concerning the use of urgency:
    • Question time under ordinary urgency;
    • Urgency used to avoid select committee consideration;
    • Clarity in urgency motions;
  • The New Zealand Bill of Rights Act 1990;
  • The Crown financial veto;
  • Bills affecting the Crown prerogative;
  • The election of the Speaker;
  • Broadcasting of the proceedings of the House during personal votes;
  • Three way votes.


There have been a number of improvements to the systems by which the House of Representative accords additional time to the Government to pass legislation. Extended sitting hours are a welcome addition, which allow for the expansion of time without disrupting the ordinary business of the House. In addition, it is now common for leave to be granted for the House to hold question time, despite being under urgency.

Question time under urgency

While I can understand that the ordinary business of the House in holding the government to account will take a back seat when the House accords extraordinary urgency for some item of business, I do not see a particularly strong case for this to occur during ordinary urgency.

I submit that, under ordinary urgency, the standing orders should provide that the holding of question time should be automatic.

When matters are truly urgent, in the sense of legislation being needed to be passed all but immediately, extraordinary urgency will enable the government to proceed with the haste required, and, if necessary, override the ordinary requirement to hold question time. Short of this level of urgency, this should not be necessary, and question time should be held, despite the House being in urgency.

Urgency used to pass legislation without recourse to a Select Committee

Use of urgency in a way that avoids normal select committee scrutiny (particularly to allow passage through all stages) is one of the most concerning uses of urgency. While this will sometime be necessary, Parliament should be very clear about what it is doing before it does it.

Under changes to Standing Orders adopted following the last review, whenever the Government wishes to move a motion reducing the time allowed for a select committee report on a bill to a period of less than four months, that motion is debateable. Counter-intuitively, however, there is no separate debate when the government uses urgency to avoid select committee consideration entirely.

I submit that Standing Orders should be changed to require a separate debate whenever the Government wishes to advance a bill without select committee consideration.

In the same way that a debate on an instruction to a select committee to report a bill quickly is limited to that question, and speeches cannot address the principles of the bill itself,[1] a debate on such a motion would be necessarily limited. Members speaking in the first reading of a debate on an important bill should not be placed in a position of having to decide whether to speak about the bill, or to speak about the process.

Given that this sort of debate is already provided for with short select committee consideration, it should not be difficult to provide for it where the discussion is about whether there should be select committee consideration of a bill at all.

If the Government wishes to use an occasion of urgency to move multiple bills through without reference to a Select Committee, it could perhaps include these in a single motion, which can be addressed as the first item of business once urgency has been accorded.

Clarity in urgency motions

I submit that urgency motions should be required to clear as to what is covered by them. As an example, at the beginning of the last Parliament, the House resolved:[2]

That urgency be accorded the introduction and passing of Government bills dealing with taxation, employment relations, bail, education and sentencing, Government notices of motion Nos 4 and 5, and any maiden statements to be made at times determined by the Business Committee.

I do not consider this should be sufficient. Members of Parliament – and the public of New Zealand – are entitled to know what is going on in the House. I submit that all urgency motions should be required to state:

  • The exact bills intended to debated (i.e. by name); and
  • The stage or stages through which those are intended to be passed.

It will sometimes be necessary for the Government to introduce a bill under urgency, but there is no reason that people shouldn’t at least know the names of the bills that are to be debated.

New Zealand Bill of Rights Act 1990

Section 7 of the New Zealand Bill of Rights Act 1990, and SO 262 provide important protections to ensure that Parliament is informed of human rights implications in legislation before it passes laws infringing rights.

I submit that Bill of Rights reporting should also occur at other stages in the legislative process. Ideally, this would occur before the Second and Third readings of bills which had undergone substantial amendment in select committee, or the Committee of the Whole, and the House would be aware of the Bill of Rights considerations in any amendments it was consider.

Of course, I recognise that the resource implications in reporting on every bill at every stage, and every amendment, and supplementary order paper may mean it would not be practicable to require it at all stages, but I submit that the Standing Orders should at least allow for Bill of Rights reporting from the Attorney-General at other stages during the passage of legislation.

In particular, I submit that any government supplementary order paper that is referred to a select committee should be subject to a bill of rights report, and major government supplementary order papers introduced at late stages could be considered as well. I anticipate that in respect of such matters, the Bill of Rights implications will have been considered as part of the pre-legislative process in cabinet papers, etc. which should alert the Attorney-General as to which supplementary order papers need attention. Given the work will have been undertaken already, the additional work involved in obtaining sign-off from the Attorney-General should not be too great. It will also assist the House to know whether Bill of Rights concerns present in legislation at introduction have been sufficiently met by amendments made by Select Committees.

Most Bill of Rights concerns in legislation will be present from introduction, but occasionally, the problematic provisions will be introduced during the select committee process or in a committee of the whole House (as happened with the Criminal Justice Amendment Act (No 2) 1999, for example). Alternatively, broader discussion of a bill may result in a greater understanding of the bill of rights implications in it (I think, for example, of the Electoral Finance Bill and the Public Health Bill). A process by which a concerned member of Parliament (or a committee) could seek a renewed opinion from the Attorney-General as to a bill’s compliance with fundamental obligations under the Bill of Rights would be welcome.

The Crown financial veto

The Crown financial veto as contained in the Standing Orders is a relatively recent creation. Previously, it had a statutory basis, beginning in section 54 of the Constitution Act 1852, and most recently, in section 21 of the Constitution Act 1986, which provided the legislative basis for the Crown financial veto, was repealed in 2005.[3]

New Zealand operates under the system of Parliamentary sovereignty, in which the government cannot spend money without the agreement of Parliament. It is also a system where the rule of law requires that the Government follow the laws passed by Parliament. While it will almost always be the case that the Government will command a majority in the House, there will be a few instances, on the occasional issue, where the Government does not have the support of the House for its position.

This will usually not involve money, but on the few issues where it does, if the Government feels strongly enough that it does not wish to expend that money, then its solution should be to state that the vote is an issue of confidence. The provision of a veto, which can be exercised without the support of the majority of the House, is anathema to Parliamentary sovereignty and the democratic underpinnings of the House. The Crown should only ever act when it commands the support of the House. It should not have the power to veto the passage of a bill.

Bills affecting the Crown prerogative

Standing Order 309 provides that “No Member’s bill, local bill, or private bill that contains any provision affecting the rights or prerogatives of the Crown may be passed unless the Crown has, by message, indicated its consent to that provision.”

Like the Crown financial veto, this is provision is a holdover from a time now long past. We are a fully functioning Parliamentary democracy, operating under the principle of Parliamentary sovereignty.

Simply put, if the majority of the House supports a bill that affects the Crown Prerogative, the Crown should wear it. The House should not need to seek its permission to legislate on any matter that it sees fit.

The election of the Speaker

I submit that consideration should be given to the House electing its Speaker using a secret ballot.

The Speaker is creature of the House, and is responsible to the House. It is important that they not only have the confidence of the House but are seen within Parliament and outside as having that confidence. I believe that the election of the Speaker by secret ballot would greatly assist with this.

Election of a Speaker by secret ballot is now common in Westminster Parliaments. The UK House of Commons conducted its first secret ballot for Speaker in 2009 (having adopted rule changes in 2001).[4] Elections for the Speaker of the Scottish Parliament,[5] and for the Presiding Officer of the Welsh Assembly,[6] are also by secret ballot. The Presiding Officer and deputies of the Northern Ireland Assembly are not elected by secret ballot,[7] but there is a requirement that election of the Speaker and deputies has “cross-community support” (a majority of both Nationalist and Unionist members).[8]

The election of the Speaker of the Australian House of Representatives[9] and the election of President of the Australian Senate[10] are also by secret ballot, as are such elections in state or territory legislatures in ACT,[11] New South Wales,[12] the Northern Territory,[13] Queensland,[14] South Australia,[15] Tasmania,[16] the Legislative Assembly of Victoria,[17] (but not the Legislative Council[18]), and Western Australia.[19]

The election for the Speaker of the Canadian House of Commons[20] has been by secret ballot for over 25 years (there is no election for the Speaker of the Canadian Senate, who is appointed on the advice of the Prime Minister[21]). Elections for Presiding Officers of provincial legislatures in Alberta,[22] British Columbia,[23] Manitoba,[24] New Brunswick,[25] Newfoundland and Labrador,[26] Nova Scotia,[27] Ontario,[28] Prince Edward Island,[29] Quebec,[30] and Saskatchewan,[31] are also all conducted by secret ballot, however, the Speakers of the Legislative Assemblies of the three Canadian territories: Northwest Territories,[32] Nunavut[33] and Yukon[34] are elected by motion

The international movement towards conducting the elections of presiders Officers by secret ballot is clear, and the New Zealand House of Representatives remains on the out, by continuing to elect its Speaker in a way that allows for a strong whip to be imposed

I submit that it is time for the New Zealand House of Representatives to consider adopting a secret ballot for the election of the Speaker

Broadcasting of the proceedings of the House during personal votes

The Rules of Filming the House[35] currently provide that:

7. While a personal vote is in progress, a graphic to this effect may be shown in place of live coverage, or a static wide-angle shot of the Chamber may be used, provided that this coverage does not seek to identify how individual members are voting. Any spoken proceedings that occur during a personal vote (such as a point of order) will be covered, subject to the usual rules.

I submit that this should change. While personal votes are uncommon, when they are held, they are usually on issues on which there is uncommonly high public interest in the vote.

There is no good reason to deny people watching at home on television, or via the Internet, access to the same information that can be seen via people sitting in the public gallery. While I can understand a desire not to show what is happening actually inside the lobbies, there should be no reason why, when a personal vote is being conducted, the cameras in the chamber shouldn’t be trained on the Ayes and Noes doors so that people watching at home can see which members are voting which way, with the ambient noise of the house in the background.

The situation during various votes on the same-sex marriage legislation, where people watching from home (and, I understand, from overflow rooms in the Parliamentary precinct), spent several minutes watching a basically blank screen while elevator music was playing was not a good look for the House, and discourages participation by the wider public in the legislative process.

Voting where more than two options are offered

In the course of this Parliament, the House conducted what I understand was its first three-way vote. From the perspective of someone who was sitting in the gallery during the debate on the alcohol purchase age, the process did not seem particularly satisfactory. The procedure where members left the chamber to cast their votes in private leaves much to be desired. It appeared to take an inordinate amount of time, and it wasn’t clear that very many people actually knew what was going on.

While such votes are likely to be rare, there is no reason that the House cannot take note of its recent experience and resolve a more satisfactory process for any repetition. The Standing Orders of the House already provide for a procedure for the conducting of votes where there are more than two options, namely during contested elections for Speaker in which there are more than two nominees. There is no reason why this procedure could not be adopted the next time the House conducts a three way vote. The Chair could simply call upon each member in turn to announce which option they support. I do not imagine it would take any longer than the process used during the drinking age debate, and it might even make for good television.


I look forward to reading the other submissions on the Review of Standing Orders, and I thank the Committee for the opportunity to present a submission.

[1]     Standing Orders of the House of Representatives, SO 286(3).

[2]     (9 December 2009) 49th Parliament, Journals of the House of Representatives, 23.

[3]     Constitution Amendment Act 2005, s 5.

[4]     Standing Orders of the House of Commons – Public Business, SO 1B.

[5]     Standing Orders of the Scottish Parliament, SO 11.9.2.

[6]     Standing Orders for the National Assembly for Wales, SO 6.8.

[7]     Standing Orders of the Northern Ireland Assembly, SO 4(5).

[8]     Northern Ireland Act 1988 (UK), s 39(7).

[9]     Standing Orders of the House of Representatives, SO 11(i).

[10]    Standing Orders of the Senate, SO 7.

[11]    Standing Orders of the Legislative Assemby for the Australian Capital Territory, SO 2(g).

[12]    Standing Orders of the Legislative Assembly of New South Wales, SO 10; Standing Rules and Orders of the Legislative Council of New South Wales, SO 13.

[13]    Standing Orders of the Legislative Assembly of the Northern Territory, SO 7.

[14]    Standing Rules and Orders of the Legislative Assembly of Queensland, SO 41.

[15]    Standing Orders of the House of Assembly of South Australia, SO 8; Standing Orders of the Legislative Council of South Australia, SO 18.

[16]    Standing Orders of the House of Assembly of Tasmania, SO 10; Standing Orders of the Legislative Council of Tasmania, SO 14.

[17]    Standing Orders of the Legislative Assembly of the Parliament of Victoria, SO 10;

[18]    Standing Orders of the Legislative Council of the Parliament of Victoria, SO 2.03.

[19]    Standing Orders of the Legislative Assembly of the Parliament of Western Australia; Standing Orders of the Legislative Council of Western Australia, SO 211.

[20]    Standing Orders of the House of Commons, SO 4.

[21]    Constitution Act 1867, s 34.

[22]    Standing Orders of the Legislative Assembly of Alberta, Schedule A.

[23]    Standing Orders of the Legislative Assembly of British Columbia, SO 11(c).

[24]    Rules, Orders and Forms of Proceedings of the Legislative Assembly of Manitoba, r 8(1).

[25]    Standing Rules of the Legislative Assembly of New Brunswick, r 11(8).

[26]    Standing Order of the House of Assembly of Newfoundland and Labrador, SO 4(1).

[27]    Rules and Forms of Procedure of the House of Assembly, r 6B(g).

[28]    Standing Orders of the Legislative Assembly of Ontario, SO 3(e).

[29]    Rules of the Legislative Assembly of Prince Edward Island, r 9(5).

[30]    Standing Orders and Other Rules of Procedure of the National Assembly of Quebec, SO 5.

[31]    Rules and Procedures of the Legislative Assembly of Saskatchewan, r 42(1).

[32]    Rules of the Legislative Assembly of the Northwest Territories, r 8(3).

[33]    Rules of the Legislative Assembly of Nunavut, r 8(3).

[34]    Yukon Legislative Assembly, Information Sheet No. 1: The Speaker,

[35]    Standing Orders of the House of Representatives, Appendix D.


Council elections: FPP Q&A

After my (re-)post about ensuring your vote counts under the single transferable vote voting systems, I had the concern that people might think I was telling them how they should vote. My post was not intended to tell people what strategy they should use when voting (I'll be ranking everyone because I see no downside to it in this election, but there are perfectly good reasons not to).

I don't get to decide what is important for you when you vote. That's on you.

I do not accept that there are wasted votes. I do not believe that people who vote for the Green Party candidate in a marginal race are to blame if a Labour candidate loses. I do not believe that a party vote for the Maori Party is wasted despite the fact they are unlikely to get a list MP. And I don't believe that a vote for a minor party with no hope of reaching 5% or winning an electorate is wasted either. I would like people to vote with the knowledge that these are the consequences of their vote, but if they weigh them up and vote that way anyway, well, that's democracy in action.

Yes, if Peter Dunne hadn't been elected in Ohariu in 2011, National wouldn't have had the numbers to partially privatise state assets. But I also have no doubt that the vast majority of people who voted for Green Part candidate Gareth Hughes in that electorate did so knowing that if Peter Dunne won the electorate, he'd back National, and that they were perfectly happy that they could have used their vote differently to make that less likely. Although I cannot really imagine what the 20 Ohariu voters who gave United Future their party vote, but Charles Chauvel their candidate vote, were hoping for, they certainly don't owe me an explanation.

You do not have an obligation to vote tactically. For your own reasons, you can choose to vote in whatever way you want. In an STV election, you do not have vote for everyone, and I will fault no-one who chooses to rank only some candidates and who because of this doesn't help decide an election that comes down to two people they have left unranked.

My post on STV was aimed at ensuring that people know the consequences of their choices. Leaving some people unranked because you simply do not want to rank them is fine, leaving some people unranked because you think that helps the people you have ranked is a mistake (it does not help them in any way).

I think most people understand the basics of STV (vote your favoured candidate with a 1, your next with a 2, etc.), but not everyone is sure how to make the most of their vote (what if there's someone I really don't want to win?), and my post was aimed at providing some of that information.

I live in Wellington. The four races I get to vote in during this local election season will all be conducted under STV, but everyone voting outside Greater Wellington will also be able to vote in First Past the Post elections, and I had the thought today that perhaps, not everyone knows how to make the most of their votes under that system, so the following Q&A follows:


So you’re voting in an FPP election, and you want know how to best use your vote? Well … here goes.

What is FPP?

FPP is First Past the Post. It is an election system where you vote using ticks.  It can be used to elect one candidate – like a mayor – or to elect multiple candidates in a single ward.

What elections use FPP?

All regional council elections except Wellington use FPP. Most council elections use FPP (the councils in the Wellington area, and in Dunedin, Marlborough and Palmerston North use STV). All DHB elections use STV.

How do you vote in an FPP election?

In the form of FPP used in New Zealand local body elections, you vote with ticks. The candidates with the most votes win.

How many votes do I get?

You get one vote for each vacancy. In a mayoral election conducted under FPP, this means you put a tick next to the name of one candidate. In a council ward electing 3 candidates, you can vote for up to three candidates. If your ward election 5 candidates, you get five ticks

Do I have to use all of my votes?

No. Your vote is still valid even if you don't use all of your votes. In a councel ward electing five candidates, you can put ticks next to 1, or 2, or 3, or 4 or 5 of the candidates, and your vote will count.

What are the ways my vote might become invalid in an FPP election?

If you don't vote for anyone, or if you vote for too many people (e.g. two candidates in a mayoral election) your vote can't be counted. I have no idea whether, if you number three candidates 1, 2 and 3 in a council race electing three candidates, whether your vote will count, so don't risk it!

But is it a good idea to use all of my votes in a multi-councillor election?

Maybe. It depends on what is important to you in casting your vote.

There is one candidate I really really want elected in my local council ward, what should I do?

If you want to increase the chances of one candidate against all of the others and are willing to sacrifice the opportunity to help select other councillors, then voting for only that candidate is your best bet.

Unlike STV, where lower rankings only matter once the people you have ranked higher have already been elected, or cannot possibly be elected, every vote under FPP is a positive act that counts toward someone, voting for someone you kind of like as one of your choices can harm the chances of someone you really like.

This also applies if you really like more than one candidate. You can vote just for your favoured candidate, without using all of your 

I don't think my favoured candidate in the mayoral race has much chance, is it worth giving them my vote?

It can be, but be aware that it may mean that another candidate whom you don't like will have a better chance of being elected.

Under STV there is likely to be no consequence to giving your first preference to someone you really like who has little chance, because you will be able to use your later preferences to decide between the "serious" candidates.

However, under FPP, someone can be elected despite being opposed by the majority of voters. If this concerns you, because you fear that someone may be elected because the votes of the people who dislike them will be split among a range of other candidates, you may want to consider voting for your second or third choice, if you think that person has a better chance of being elected. They might not be your first choice, but if you feel that there is someone who would be happy to have as your mayor, and you think they have a better chance of winning, it can be a good idea to vote for them, even if they're not your favoured option.

So what if there’s someone I really really don’t want elected?

Well, first of all, don't vote for them.

If your main motivation in a first past the post election is to ensure that a particular candidate doesn't get in you have to be a little tricky.

Unlike STV, where ranking everyone above them (in any order you choose) makes the "Anyone But ..." strategy easy, under FPP, you have to know a bit about the likely result.

In general elections, this is usually pretty easy. People who support ACT will often choose to vote for a National candidate to make sure a Labour candidate won't be elected, and people who support the Greens may choose a Labour candidate, to give them the best chance of defeating the National candidate. First past the post elections tend to operate this way, moving toward a result where a lot of people vote against their preferred candidates, to ensure something they consider would be bad, won't happen.

It's harder to do this in local elections, because the options aren't as clear cut, but it is possible.

In local elections, if there's someone you really don't want to be elected, the strategy is to cast all of your votes, for other candidates other than the candidate(s) you strongly oppose. In a mayoral election, this means casting a vote for the one candidate who will likely get the most support out of the others. In a multi-member council ward, this means casting the maximum number of votes (e.g 5 in a 5-councillor ward) for candidates you think will be most likely to beat your nemesis, but without voting for any candidate you are confident will be elected anyway.

That sounds complicated!

Who said FPP was easy to understand? It all depends on what is important to you. For most people, voting is probably a simple matter of putting a tick next to the candidates you like (but not too many!), and not caring about the tactics of it all.

Unlike STV, FPP provides a substantial encouragement not to cast a vote for someone you like if you think they have little chance of winning, so as to avoid the prospect of someone you strongly dislike being elected. This srong negativity in FPP, almost requiring tactical voting at the general elections, is one reason I oppose FPP, but you have no obligation to vote tactically if you don't want to. And, personally, I probably wouldn't.

I'm not voting in a first past the post election this time around, but I do at general elections (the electorate races are run under FPP), and I don't think I've ever voted for solely tactical reasons. Then again, I don't think I've ever been confronted with a candidate who had a good chance of winning, but whom I despised. I'd vote tactically in the right circumstances, but I'm not sure they're that likely to arise.

Don’t forget to vote!

Voting is by postal ballot, and papers have now been sent out, so you should have yours by now. If you don't, it's possible you are not enrolled. It is not too late to enrol to vote in the local body elections, and to cast a special vote.

You should enrol to vote. You can do this online. Or you can get an enrolment form from a Post Shop. Or you can call 0800 36 76 56.

If you haven't received your voting papers, and think you need to cast a special vote, contact your local council.

If you want your vote to count, it has to be with your local returning officer by midday on Saturday October 12. If you’re posting them back, try to get them in the post on or before October 9, to make sure there’s enough time. If you’re getting near the date, it might be safer to drop them off in person at the council, or somewhere like a public library. Your council website – and voting papers – should have all the information you need to do this.