Legal Beagle by Graeme Edgeler

83

D-Day for Dunne (updated)

Last Friday, the Electoral Commission announced that it had cancelled the registration of the United Future Party.

My immediate thought was that that was unfortunate, because I had wanted a relaxing night, and didn't want to have to write a long post railing against the continued funding of Peter Dunne for Parliamentary funding purposes.

In the end, I didn't. I had a quick look at the Speaker's Directions, and the Standing Orders. They weren't very clear, and didn't seem addressed to the issue in hand, but I concluded that they probably turned on the situation in place at the election and would thus allow continued funding, and decided that a post railing about how someone was probably entitled to funding would be rather boring and went on with my night.

I received texts from a journalist:

"Will Dunne get less money in parliament now UF isn't registered? Intense journo debate!"

"And will he lose staff?!"

I replied:

Dunne personally? No. Ministers are paid more than party leaders. Party support funding is less clear. The laws aren't written in a way to allow for a clear answer, but I would guess not.

I also sent and replied to a couple of tweets, but it very much seemed like an issue that would interest only people like me, and not have cut particular cut-through.

Well, after the events in the House today, it seems my view that this would be boring was rather misplaced (at least with respect to those who follow parliament).

There is more than one question. Recognition of a party for parliamentary purposes includes things like the right to speak on ministerial statements, and the affects proxy votes, and membership of the Business Committee. The question of whether a party is entitled to funding may be different, but I will assume that it probably isn't for the purposes of this post.

I looked at these questions in two posts prior to the 2011 Te Tai Tokerau by-election, and came to some firm conclusions and also determined that there were some "known unknowns". Standing Order 34 has changed since then, and the bit I wasn't sure of then is now definitively ruled on. An unregistered party which wins a seat in parliament at a general election (or a by-election) is now clearly not entitled to be recognised as a party under standing orders.

But that isn't the situation Peter Dunne finds himself in.

Standing Order 34 now states:

Every political party registered under Part 4 of the Electoral Act 1993, and in whose interest a member was elected at the preceding general election or at any subsequent by-election, is entitled to be recognised as a party for parliamentary purposes.

Peter Dunne was elected at the preceding general election in the interest of a political party registered under Part 4 of the Electoral Act. That party  is no longer registered, but he was so elected, and under that banner. United Future was recognised. Properly. A new general election would change that, but we haven't had one.

Now, you can clearly argue that a different interpretation, that recognition by Parliament is an ongoing matter, that the Speaker needs to be convinced of all matters in Standing Order 34(1) at all times. Standing Order 34(1) has changed. Before the start of this Parliament, it said:

Every party in whose interest a member was elected at the
preceding general election or at any subsequent by-election is entitled to be recognised as a party for parliamentary purposes.

There's a pretty good argument that you can look at the difference and say 'see they changed the rule, now it's clear, Dunne gets no funding!', but there are a couple of problems with that. First, the Standing Orders Committee explained why it made this change, and it had nothing to do with this, but was in response to a submission by the Clerk of the House, that there was a circular definition of 'party' that should be cleared up. Second, there is also a steer under SO 34(3). The rules allow new parties of party-hopping MPs to be recognised between elections if they have at least six members (a level I anticipate is based on the 5% threshold), but also provide that:

(3) [such a party] loses its recognition if its membership falls below six members of Parliament.

The rules don't give any other situations where a party loses recognition. If the continuing obligation principle was correct, the bit above would be unnecessary: as soon as a new party-hopper party lost it's sixth MP, it would cease to be registered because it would no longer meet the requirements for a non-elected party to be recognised. This bit being there suggests recognition is otherwise a one-time thing.

I don't have a dog in the fight. I'm reasonably political, but also highly non-partisan. I would like the rules to be clear. The House has a rule that doesn't clearly deal with this situation, except, maybe, by inference. And the two inferences that rule has are contradictory.

I do, however, have a concern with the decision of the Speaker to give Dunner and United Future time to deal with this matter. Whatever interpretation one takes, this isn't something that can be fixed up. Either the rules require a parliamentary party to maintain registration with the Electoral Commission as a continuing pre-requisite to recognition, or they do not. If they do, then United Future has lost its entitlement to funding, and that should cease; if they do not, it doesn't matter whether United Future re-registers next week, or just gives up, the entitlement to recognition in the House would remain until this Parliament rises before the next general election.

There are serious consequences if a party ceases to be entitled to be recognised as a Party in the House, but there's no basis to put the decision off. What has happened has happened, and if there are consequences, they occur immediately.

UPDATE: Andrew Geddis also posts on the issue. We disagree over how tenable the argument about continuing entitlement is, but agree on what I think is the more important issue. There is no basis for a grace period, and the decision of the Speaker to allow one is wrong.

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