Legal Beagle by Graeme Edgeler

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Legal Beagle: Infrequently asked questions

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  • Simon Lyall,

    You answered if somebody could stand in 2 electorates but can somebody be on 2 separate lists?

    Also what consent does a party need before adding somebody to their list? Could a minor party start adding random people into their list to attract votes.

    Auckland • Since Feb 2007 • 21 posts Report Reply

  • Graeme Edgeler, in reply to Simon Lyall,

    can somebody be on 2 separate lists?

    No.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Graeme Edgeler, in reply to Simon Lyall,

    Also what consent does a party need before adding somebody to their list? Could a minor party start adding random people into their list to attract votes.

    They could not. In respect of each list candidate, a party's list nomination must be accompanied by "a statement in a form provided by the Electoral Commission, signed by the candidate, and confirming the candidate's consent to the nomination."

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Rich of Observationz,

    What is a bank draft?

    It's a cheque that's guaranteed by the bank and is as good as cash. Typically used to buy something expensive like a car without walking around with a wad of cash, or relying on the buyer to trust the sellers cheque.

    So, has any party bootstrapped their way into an MMP parliament without the help of a sitting MP switching parties?

    I'm picking no. All the sitting parties can trace their history back to an MP that left National or Labour.

    Back in Wellington • Since Nov 2006 • 4459 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    I’m picking no. All the sitting parties can trace their history back to an MP that left National or Labour.

    Not the Greens (so far as I know): Green members got into Parliament in 1996 as dual members of the Green Party and the Alliance. The sitting MP who came with them was not a Green Party member.

    So, has any party bootstrapped their way into an MMP parliament without the help of a sitting MP switching parties?

    I assume you mean: has any party gotten into Parliament by getting under 5% but winning an electorate has gotten in anyway. No. The only parties to have been in Parliament despite not having won 5% at an election are: New Zealand First, United(/Future), ACT, Jim Anderton's Progressives, the Māori Party, and Mana (and the various parties of defecting MPs). All of these had previous MPs in them, although in the case of ACT, they weren't in Parliament in the term before they got elected (but they also got over 5%).

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    It’s a cheque that’s guaranteed by the bank and is as good as cash.

    Is that different from a bank cheque?

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • FletcherB,

    Q. If the ex-leader of one major party, was to approach an established but dwindling minor party and offer to take over the leadership if the current leader stepped down, and oh, by the way, I can bring all this donation money with me…. and while we’re at it, let’s parachute in this other ex-mp from the same major party into the prime electoral seat possibility…

    Would that qualify for the description of one party buying a support party?

    Would that almost be like your first question about major parties pretending to be two different parties for list and electoral votes?

    West Auckland • Since Nov 2006 • 794 posts Report Reply

  • Graeme Edgeler, in reply to FletcherB,

    … Would that qualify for the description of one party buying a support party?

    No. Not without more involvement from the major party.

    Would that almost be like your first question about major parties pretending to be two different parties for list and electoral votes?

    No. Because it wouldn't cause disproportionality, and wouldn't artificially increase support. Indeed, it increases the chance that the party will lose the electorate it wants to win, and likelihood of some wasted votes.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Rich of Observationz, in reply to Graeme Edgeler,

    Actually, I think "bank draft" is the usual UK terminology and "bank cheque" is used in NZ. They're probbaly synonyms, or differ in some technical detail of processing.

    Aren't the drafters of legislation supposed to define technical terms like these?

    Back in Wellington • Since Nov 2006 • 4459 posts Report Reply

  • Rich of Observationz,

    has any party gotten into Parliament by getting under 5% but winning an electorate has gotten in anyway

    No, what I actually meant was: has any party got into parliament for the first time without one of its candidates already being a sitting MP? (as the Conservative Party are trying to do at this election).

    Back in Wellington • Since Nov 2006 • 4459 posts Report Reply

  • Hans Versluys,

    The alternatives offered to MMP in the referendum all have a provision for more Maori seats than under MMP (from 9 to 12 seats, according to the info website). Won't that lead to (say, in a return to FPP) elections only basically fought in Maori electorates as they will be effectively be the cross-bench seats and they will determine a Labour or National majority?

    Auckland • Since Jul 2011 • 29 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    No, what I actually meant was: has any party got into parliament for the first time without one of its candidates already being a sitting MP? (as the Conservative Party are trying to do at this election).

    Yes. Technically, every party does this every election. There are currently no members of Parliament.
    [edit: see below, in my hurry, I've been fact-checked on this one - the period where there are no MPs doesn't begin until the close of polling day.]

    But in real reply to your question, yes, ACT was elected in 1996 without a current MP among its candidates. And it won’t be for a first time, but ACT may do it again this year.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Graeme Edgeler, in reply to Hans Versluys,

    Won’t that lead to (say, in a return to FPP) elections only basically fought in Maori electorates as they will be effectively be the cross-bench seats and they will determine a Labour or National majority?

    No. FPP elections would be fought in the marginal electorates. Some of the Māori electorates may be marginal as between Labour and the Māori Party/Mana Party. It's possible in close elections that seats held by the Māori Party will be cross-bench seats that National and Labour will bid to gain the support of, but mostly elections will result in a National or Labour majority as decided by the marginal (general and Māori) electorates.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Kyle Matthews,

    If a list MP wins a by-election, they become the MP for that electorate. They don’t get two votes in the House, or two salaries. They can be replaced as a list MP for their party by the highest-ranked person on the party list who hasn’t been an MP during the term, if they resign.

    Would they still get replaced if the resigning electorate MP was from the same party as them? Surely not.

    Since Nov 2006 • 6175 posts Report Reply

  • Graeme Edgeler, in reply to Kyle Matthews,

    Would they still get replaced if the resigning electorate MP was from the same party as them? Surely not.

    Yes. Indeed, this is the one instance where it seems common sense. If an electorate MP resigns from Parliament, their party loses one MP. If one of their list MPs then becomes the electorate MP, they’re still down one MP (having gained an electorate MP in the by-election, but a “lost” a list MP to the electorate). Only by replacing the list MP can they get back to their full strength.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Phil Lyth, in reply to Graeme Edgeler,

    There are currently no members of Parliament.

    S54 of the Electoral Act provides that people holding office as a Member of Parliament:

    vacate that office at the close of polling day at the next general election

    So I’d say there are 119 MPs in office (vale Allan Peachey).

    Have I managed to fact-check Graeme?

    Edit: only 119 MPs - John Carter and Chris Carter have left without by-elections. Shame of not checking before posting.

    Wellington • Since Apr 2009 • 443 posts Report Reply

  • Graeme Edgeler, in reply to Phil Lyth,

    S54 of the Electoral Act provides that people holding office as a Member of Parliament

    Yep. Wrote it in too much of a hurry. But it appears I'm not the only one :-)

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Graeme Edgeler, in reply to Phil Lyth,

    So I’d say there are 119 MPs in office (vale Allan Peachey).

    That's another iFAQ: does there have to be a by-election?

    No. The section that requires there to be a by-election upon the vacating of seat (by, for example, the death of an MP) has a subsection that states:

    This section does not apply to a vacancy that occurs in the period between a dissolution or expiration of Parliament and the close of polling day at the next general election.

    Were it to happen after the House had adjourned, but before the dissolution, I anticipate that the House would need to be recalled however, to pass a motion deciding not to hold one.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Rich of Observationz,

    ACT was elected in 1996 without a current MP among its candidates

    Thanks - that was a gap in my knowledge - I thought the founding ACToids had gone straight from Labour to ACT. Hadn't realized they spent a few years sanitizing themselves in the private sector.

    vacate that office at the close of polling day at the next general election

    That's a difference with Westminster, where they cease being an MP when parliament is dissolved. Can NZ MPs still use parliamentary facilities during the election period?

    Back in Wellington • Since Nov 2006 • 4459 posts Report Reply

  • Phil Lyth, in reply to Rich of Observationz,

    has any party got into parliament for the first time without one of its candidates already being a sitting MP? (as the Conservative Party are trying to do at this election).

    Back to the substantive point:

    ACT in 1996 was elected without a current MP. But they did have three ex-MPs as candidates (Prebble Quigley and Shearer) with 11 terms experience between them.

    Conservative in 2011 similarly have ex-MP Baldock with one term of experience as a candidate.

    ACT in 2011 do not have a current MP as a candidate. While the candidates do not have access to publicly funded travel, I assume Boscawen et al retain Leaders Office funding and staff, access to the Parliamentary Library research facilities and will be make full use of those resources in the normal way.

    Wellington • Since Apr 2009 • 443 posts Report Reply

  • Graeme Edgeler, in reply to Rich of Observationz,

    That’s a difference with Westminster, where they cease being an MP when parliament is dissolved.

    I can't say it makes sense to me that there a members of a Parliament which doesn't really exist.

    Can NZ MPs still use parliamentary facilities during the election period?

    Yes, but not for electioneering. Free flights, and the mileage allowance etc. yes.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Phil Lyth, in reply to Rich of Observationz,

    Can NZ MPs still use parliamentary facilities during the election period?

    As implied in my previous post, yes. And IMHO that’s a good thing. Still constituent cases to be serviced. They can travel to talk policy. And they can use resources (funding/staff/Library research) for policy work – the development would have been done months ago, but to fact-check and challenge.

    Wellington • Since Apr 2009 • 443 posts Report Reply

  • Phil Lyth, in reply to Graeme Edgeler,

    Were it to happen after the House had adjourned, but before the dissolution, I anticipate that the House would need to be recalled however, to pass a motion deciding not to hold one.

    I had thought about that and considered that s129(2) would come into play - the writ for the issue of the by-election can be delayed for up to 21 days - and under s129(3) for another 21 days if thought necessary for special reason.

    By that time the writ for the general election would have been issued, overtaking a by-election. But I am not a lawyer, so Graeme may have a thought.

    For what it is worth, there has not been a by-election forced in NZ since 1900 by the death of a candidate (including MPs). (Have not gone further back.) Such byelections occur from time to time in the UK: eg in 2010

    But there are quite a few cases where a NZ MP has died within a few months of a general election.

    Wellington • Since Apr 2009 • 443 posts Report Reply

  • Graeme Edgeler, in reply to Phil Lyth,

    I had thought about that and considered that s129(2) would come into play – the writ for the issue of the by-election can be delayed for up to 21 days – and under s129(3) for another 21 days if thought necessary for special reason.

    By that time the writ for the general election would have been issued, overtaking a by-election.

    That's not how I read it. Section 129(4), which is the bit which allows the GG not to issue a writ, turns on when the vacancy arises, not when the writ would issue.

    Wellington, New Zealand • Since Nov 2006 • 3004 posts Report Reply

  • Paul Campbell,

    Since we're talking about electoral nonsense: local politics in Dunedin used to have parties (back in the 60s/70s/80s and I'm sure earlier) - there was Labout, Social Credit,and "Citizens" - "Citizens" in Dunedin, like in a lot of other cities, was really a thinly veiled front for National who officially "didn't do local body elections" - at one point in the late 70s someone did an investigation of the local Citizens Party, they were an organisation that had one meeting every 3 years - to be a candidate you had to join at one meeting (meetings tended to be held stealthily) and be nominated at the next .... more importantly they were not incorporated.

    A local group promptly incorporated a "citizens party, claimed the name, and ran a slate for council - hilarity ensued, the incumbent mob cried "foul" - in the end both groups ran slates as "Citizens Party" and "Citizens Party Inc"

    This was an age when a public servant who happened to run for parliament got 3-4 weeks off with pay - and the deposit was only 100 - what a deal! - change your name to "Rob Muldoon" and move to Tamaki for a month ....

    Dunedin • Since Nov 2006 • 2152 posts Report Reply

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