Legal Beagle by Graeme Edgeler

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Legal Beagle: Standing Orders 101

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  • Paul Williams,

    Start with fixed terms, they're really working a jiffy in NSW...

    Sydney • Since Nov 2006 • 2191 posts Report Reply

  • Paul Campbell,

    how many votes does it take to change standing orders?

    Dunedin • Since Nov 2006 • 2031 posts Report Reply

  • Craig Ranapia,

    Over the chimney-piece plainly visible in the photograph, hangs an entrenching tool, with which, in 1915, Uncle Matthew had whacked to death eight Germans one by one as they crawled out of a dug-out. It is still covered with blood and hairs, an object of fascination to us as children. (Nancy Mitford, The Pursuit of Love, Chapter 1)

    Discuss. :)

    North Shore, Auckland • Since Nov 2006 • 11783 posts Report Reply

  • Sofie Bribiesca,

    how many votes does it take to change standing orders?

    more than 50 +1

    here and there. • Since Nov 2007 • 5920 posts Report Reply

  • Steve Barnes,

    How many National MPs does it take to remove a Maori seat?.
    Two, one to distract him and the other to pull it away as they sit down.

    The wireless north ;-) • Since Dec 2006 • 4613 posts Report Reply

  • Idiot Savant,

    It does pose a serious problem for the Maori Party's bottom line of entrenching the Maori seats. And it would be nice if a journalist asked them how they expect to get around it if National refuses to play ball. They could move to suspend under SO 4, but that's getting very dodgy (akin to circumventing the curent entrenchment by temporarily repealing it).

    Paul: entrenchment is rarely used in NZ, and arguably underused. MMP isn't entrenched, for example. Neither is the principle of responsible government (Ministers must be MPs), or even the existence of Parliament itself. On the one hand, this is perhaps a symbol of the uncontentious nature of democracy in NZ - we simply don't need to entrench. But on the other, it would be nice to have a few safeguards, and these aren't things I think we need that level of flexibility for.

    Palmerston North • Since Nov 2006 • 1625 posts Report Reply

  • Idiot Savant,

    Paul C:

    4 Suspension of Standing Orders
    (1) A Standing Order or other order of the House may be suspended
    in whole or in part on motion with or without notice.
    (2) A suspension motion may be moved without notice only if at least
    60 members are present when the motion is moved.
    (3) A suspension motion may not interrupt a debate and must state the
    object of or reason for the proposed suspension.
    (4) An amendment may not be moved to a suspension motion.

    Doing this, however, would be dodgy, and arguably unconstitutional (in the Aristotelian sense).

    Palmerston North • Since Nov 2006 • 1625 posts Report Reply

  • Craig Ranapia,

    It does pose a serious problem for the Maori Party's bottom line of entrenching the Maori seats. And it would be nice if a journalist asked them how they expect to get around it if National refuses to play ball.

    More to the point, given Helen Clark's "there is no need to entrench the Maori seats", I think there's a few more questions that need to be asked, because to this bear of little brain either the Maori Party are going to have to 1) fudge the issue, 2) try and get both Clark and Key to keep fudging, and thereby undermine their own credibility, or 3) stay staunch and make the argument that, in a potentially hung Parliament between the center-right and center-left they can exert more influence from the cross benches and their support practically required for every piece of contentious legislation. Because, to get real here, I can only see so many times Labour and National are going to hold their noses and join hands.

    North Shore, Auckland • Since Nov 2006 • 11783 posts Report Reply

  • Paul Campbell,

    what I was really getting at was that Standing Orders as a safeguard (to an already entrenched law or to stop entrenchment without the required number of votes) seems to be relatively easy to get around (and makes the whole idea kind of moot)

    In general I think that that sort of entrenchment is a bad idea anyway - having lived under prop13 in California (a bad law that was entrenched at 66% with a 50% vote and has hamstrung the state for a generation) I know just how bad it can get. I think that if you want to 'entrench' the Maori seats you really need to protect them constitutionally rather than just with law

    Dunedin • Since Nov 2006 • 2031 posts Report Reply

  • Graeme Edgeler,

    They could move to suspend under SO 4, but that's getting very dodgy (akin to circumventing the curent entrenchment by temporarily repealing it).

    That's not getting very dodgy - that would be the start (or conclusion) of a long train of abuses.

    If anyone ever moves to suspend standing order 267, at the very least they will have lost my vote until not one of the MPs who supported that action is even a candidate.

    MMP isn't entrenched, for example.

    Close, though. The form of the ballot paper (i.e. a party vote and electorate vote) is entrenched. We could go to supplementary member (with electorates defined as now) without messing with entrenchment, but not to much else (first past the post or STV, for example, would be out).

    We could certainly gut MMP (a 15% threshold?), but at present,we can't really be rid of it.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Graeme Edgeler,

    having lived under prop13 in California (a bad law that was entrenched at 66% with a 50% vote and has hamstrung the state for a generation)

    Proposition 13 passed with 65% support. And the 50% support it needed was because it was voter-approved. The same applies in New Zealand - amendment to entrenched provisions, or creation of them (as we did in 1993 when we approved MMP) can be done by a bare majority in a referendum - it's just that it takes 75% of Parliament to overrule that 50% of the public.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Idiot Savant,

    Paul:

    what I was really getting at was that Standing Orders as a safeguard (to an already entrenched law or to stop entrenchment without the required number of votes) seems to be relatively easy to get around (and makes the whole idea kind of moot)

    It's relatively easy to get around anyway; s268 Electoral Act (the entrenchment clause) is not itself entrenched, and can be repealed with a simple majority. So, want to change anything, repeal s268, change things, then put it back if you feel like it (its done this way AIUI because there are questions whether entrenchment can really be done in a Westminster system anyway, since no parliament can bind its successor. To which I say "Parliament might not be able to, but the people can, literally if need be" (it being so much easier to throw MPs into a local sewage pond when they're tied up).

    Graeme:

    Close, though. The form of the ballot paper (i.e. a party vote and electorate vote) is entrenched.

    You might want to read s168 a little more closely; it doesn't prescribe the form of the ballot paper at all. Rather, it says "if you've got two boxes, you tick two boxes; otherwise you tick only one as appropriate". There's no protection for MMP in that at all.

    Palmerston North • Since Nov 2006 • 1625 posts Report Reply

  • dave crampton,

    <quote>267 Entrenched provisions
    (1)<quote>
    Is why if no bottom lines are shifted, not only are the Maori seats not going to be entrenched, but the Maori Party will not be in coalition after the election. In the unlikelihood that it does shift - and themajor coalition partner is the one that shifts its stance on entrenchment - the policy will be effectively worthless unless there is broad based support.

    But... if no one shifts and there is a hung parliament and the Maori Party refuses to offer confidence and supply, there will be another election unless one of the two main parties extends some ministerial posts to the Maori Party - and guess which party that will most likely be?

    welli • Since Jan 2007 • 143 posts Report Reply

  • Graeme Edgeler,

    You might want to read s168 a little more closely; it doesn't prescribe the form of the ballot paper at all.

    Indeed I might - it's been a while since I have. It makes sense actually - the secret ballot seems a reasonable thing to protect by entrenchment (which seems to have been reserved for things the absence of which might threaten democracy).

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Keir Leslie,

    To which I say "Parliament might not be able to, but the people can, literally if need be" (it being so much easier to throw MPs into a local sewage pond when they're tied up).

    Arguably we can't, because we retain the sovereign right to change our minds, as expressed through parliament.

    That parliament is unable to bind following parliaments isn't a protection of parliament's privileges, it's a protection of our privilege to elect a government that answers to no-one, and no-thing, but us.

    You can argue we shouldn't have that privilege, but as I see it that's the principle, no?

    Since Jul 2008 • 1263 posts Report Reply

  • Graeme Edgeler,

    its done this way AIUI because there are questions whether entrenchment can really be done in a Westminster system anyway, since no parliament can bind its successor...

    Not really. It's been an argument in the past, but it's now pretty much accepted that Parliament can bind its successors - Bills of Rights and international human rights obligations being top of the list. They might ignore them later, but they're ignoring binding obligations.

    MMP isn't entrenched, for example. Neither is the principle of responsible government (Ministers must be MPs), or even the existence of Parliament itself.

    Missed this earlier :-)

    Allowing Parliament to entrench its own existence is a little problematic - if Parliament can entrench itself then it can abolish itself, and Lord Cooke might have had a problem with that.

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • Paul Campbell,

    Actually only 44% of CA voters voted for prop 13 - that was 65% of the (quite high) 69% turnout at that election - one of the differences between a vote in parliament (or similar) is that turnout tends to be 100% (unless someone's playing silly games)

    As a one time CA property tax payer who lived there after prop 13 was passed I always saw the but end of the law - owning a $220K house in Berkeley I paid 3 times the property tax (rates) the president of the company I worked for did (for his million dollar house). The idea that those who vote in a law can vote themselves a permanent tax discount at the expense of the next generation who have to pay extra instead is insane

    Dunedin • Since Nov 2006 • 2031 posts Report Reply

  • Idiot Savant,

    Dave:

    But... if no one shifts and there is a hung parliament and the Maori Party refuses to offer confidence and supply

    Refuses to offer as in "votes against", or refuses to offer as in "refuses to vote for"? There's a significant difference there (depending of course on which way the numbers fall).

    Palmerston North • Since Nov 2006 • 1625 posts Report Reply

  • Craig Ranapia,

    Refuses to offer as in "votes against", or refuses to offer as in "refuses to vote for"? There's a significant difference there (depending of course on which way the numbers fall).

    The latter is effectively what the Greens have done, right? I'm just wondering, because my follow up might be a little more useful if I'm not talking past everyone else.

    North Shore, Auckland • Since Nov 2006 • 11783 posts Report Reply

  • Idiot Savant,

    Arguably we can't, because we retain the sovereign right to change our minds, as expressed through parliament.

    While we retain the sovereign right to change our minds, Parliament is not the only way to express that, nor necessarily the best vehicle for doing so. And Parliament recognises this, which is why it allows entrenchment to be overcome with a simple majority in a referendum.

    Referenda take time and are a PITA to organise. Good. I'm quite happy to have the slow deliberation and public debate of a referendum on large constitutional issues than letting politicians change things in a matter of months.

    Palmerston North • Since Nov 2006 • 1625 posts Report Reply

  • Idiot Savant,

    The latter is effectively what the Greens have done, right? I'm just wondering, because my follow up might be a little more useful if I'm not talking past everyone else.

    The Greens have said that they could not form a government with National, or support them on confidence and supply. This doesn't technically rule out abstention, but I can't really imagine them doing that either.

    OTOH, if the Maori Party don't get their bottom line, they could simply abstain, let confidence and supply fall whereever it does (so, whoever has the largest coalition gets to form a minority government), and sit on the cross benches and make the government suffer. This would be a highly effective way of exercising power, though more likely to hurt National than Labour.

    Palmerston North • Since Nov 2006 • 1625 posts Report Reply

  • Graeme Edgeler,

    This doesn't technically rule out abstention, but I can't really imagine them doing that either.

    I can ... but perhaps not to allow National to govern. If National forms a coalition which will get the support of the House (maybe they don't even need the support of the Maori Party), I would say that it is possible that they'll then add a Green abstention to the top of it in exchange for a couple of specific policies (something like the phasing out of battery hens and sow crates).

    Wellington, New Zealand • Since Nov 2006 • 2988 posts Report Reply

  • giovanni tiso,

    it is possible that they'll then add a Green abstention to the top of it in exchange for a couple of specific policies (something like the phasing out of battery hens and sow crates).

    That would be a poetic way for chooks and pigs to exact their revenge on us humans.

    Wellington • Since Jun 2007 • 7320 posts Report Reply

  • FletcherB,

    It occurs to me that either major party could happily "support in parliament" the Maori Party's entrenchment bill.... knowing full well that it wont pass because it DOES need support of both major parties to get the required votes to pass...

    In the (small party) Leaders debate last night... thats all Tariana was asking for.... support the bill in Parliament....

    So, you support it, and get ~55% voting in favor.... and it doesnt pass because it requires more than a normal bill... sorry, we tried out best... now you keep voting with us for the next three years like we agreed. :)

    West Auckland • Since Nov 2006 • 786 posts Report Reply

  • Craig Ranapia,

    In the (small party) Leaders debate last night... thats all Tariana was asking for.... support the bill in Parliament....

    Turia was also perfectly clear that 'support the bill to select committee, and let it die in the corner of a select committee room' wasn't what she had in mind. Then again, who the hell knows? I thought the outbreak of mututal esteem and adoration was, to put it mildly, strained and insincere.

    North Shore, Auckland • Since Nov 2006 • 11783 posts Report Reply

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