Legal Beagle by Graeme Edgeler


Last call on the Electoral (Integrity) Bill: A plea for Labour, New Zealand First and Green MPs to consider some minor amendments

The Electoral (Integrity) Amendment Bill is going through it's final stages, and will likely pass this week.

It is going to pass, and amendments - such as a sunset clause - or the exclusion of electorate MPs from its scope - or a delayed start - are not going to be agreed to by a parliamentary majority either.

But it is not too late for Parliament to make some minor changes to the bill to make a slightly better, and to slightly better protect principled opposition within Parliamentary parties.

The point of this blog post is pretty simple: it is to ask Labour MPs, New Zealand First MPs and Green MPs to consider supporting three particular amendments proposed by National.

National has proposed many amendments that a supporter of the broad thrust of this bill could not support. That's what oppositions do. You get on record that the Government opposed something so can present it to the electorate later to show why they're bad. The point of such amendments is not really to get them adopted, but to force the government to vote against them.

But the three amendments I seek support for are not "wrecking amendments". They are very limited amendments, designed to ensure that the process for removing an MP from Parliament is fair, and identifiable.

First up is Chris Penk's proposed amendment in supplementary order paper 69. It would require registered parties to have rules around the process they would use to seek to expel an MP from Parliament.

In a similar line is Tim Macindoe's proposed amendment in supplementary order paper 71. This would require that those rules would have to be provided to the Electoral Commission and available for public inspection.

Parties are already required to have public rules around two specific things: party membership, and candidate selection. The processes around these are important matters that should be set out and publicly-available. I think this is also true of rules around expulsion of MPs. The two amendments do not require anything in particular in the rules - one party could leave the issue completely up to Caucus, and other parties might involve the party council, etc. - but the rules of each party should be a matter of public record, consistent with other aspects of the Electoral system.

A version of Macindoe's amendment in supplementary order paper 70, which proposes that the rules that applied at the election should apply for the whole term (so that parties can't change the rules after an election) might also be appropriate, but I recognise that in its present form, the Government won't vote for it, as this would preclude any expulsions this term.

I also ask Government MPs to consider supporting Simeon Brown's amendment in supplementary order paper 64. This proposes that the caucus vote to declare than an MP has distorted Parliament should occur by secret ballot.

Justice Minister Andrew Little has accused bill opponents of failing to engage with various safeguards he says are in the bill that would prevent it being abused - in particular the requirement that two-thirds of the caucus must support the leader. 

I think this is an unfair criticism - I engaged with them in both my written submission and oral submission, and the Academic experts Little criticised as having failed to do so engaged with them in their presentation to the Justice Committee - but now is his chance to meet his own challenge: making the caucus vote a secret ballot would add substantial weight to his argument that the were safeguards in the bill that would prevent a leader being able to silence opposition within their caucus.

There is one other matter, not touched that I can see, in an amendment proposed by National, which I would like to see someone pick up for serious consideration. In light of Andrew Little's argument about the two-thirds vote in caucus being a "major safeguard", I note my written submission included the following:

At present, the bill requires a two-thirds majority vote of a party caucus to expel and MP from Parliament. If an MP is really threatening the proportionality of Parliament, one would expect much greater unanimity from a party caucus as to that fact, than a mere two-thirds.

Under the current proposal, National could eject an MP even if 18 of their MPs considered the MP had not threatened the proportionality of the House, and Labour, could eject an MP with 15 MPs opposed. If the vote had anywhere near that many opposed, I think it must be seriously disputed whether proportionality would have been threatened.

When you are talking about ejecting an MP from Parliament, a much higher vote should be required, perhaps even near unanimity of the party caucus (ie unanimous, but the for the MP in question). An MP who has the support of even two or three of their party colleagues represents a significant party position likely to have been supported by at least some of that party’s voters, whose voice should not be silenced by other party factions. An MP with that level of support from the party Caucus should not be forcibly expelled from Parliament.

I think this is pretty clear enagement with the safeguards Andrew Little is discussing, and its something that the Justice Committee itself appears to have engaged with, having sought advice from Parliamentary Counsel about changing the threshold to "near unanimity". As it happens, I agree with the advice: if you are change the threshold to "near unanimity", it should be clearly defined what that means.

I do not think it is beyond the skill of government MPs, or opposition MPs to draft such an amendment before the debate on the Electoral (Integrity) Amendment Bill continues. (UPDATE: I was working off the online list of proposed amendments, which appears to be a couple of days behind, as National MP Chris Bishop advises he has proposed such an amendment).

I still oppose the bill, but there is an opportunity in the next few days to make it inarguably better than it currently is.

If you want to read a thought-provoking defence of the bill, Chris Trotter published one here.

And if you are one of the 63 MPs from Labour, New Zealand First of the Green Party with the power to decide this final form of this law, please consider your position on supplementary order papers 64, 69, and 71, not least because you have the opportunity to blunt some of the criticism you are currently facing for supporting the bill.

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