Winston Peters becomes the new MP for Northland, and his party gets another list MP for a total of 12 votes in Parliament? Or does it? This post explores some of the issues and notes the Privileges Committee may get involved..
Up to this morning, everyone has assumed that a Winston Peters win would mean a 12th NZ First MP, but almost no-one has looked in detail at how this would be effected. Graeme Edgeler did discuss this a month ago and thinks that, while the Electoral Act isn’t especially clear, the result is sure.
I am not convinced, and think the question may well end up in front of the Privileges Committee.
First, some background. This is the first time that a sitting list MP has contested and won a by-election. But it is not the first time a list MP has stood. In the early days of MMP, ACT’s Owen Jennings stood in the 1998 Taranaki-King Country by-election and came within 990 votes of defeating National’s Shane Ardern. Since then, five other list MPs have stood in the Mt Albert, Mana, and Te Tai Tokerau by-elections.
The Electoral Act is silent on the specific circumstances of what happens if a list MP wins a by-election, so it will be up to Parliament to deal with this novel situation, as it has dealt with other matters. The House will adjust and will cope.
The 1998 by-election made it clear that a list MP could stand in a by-election and retain their list seat if not elected. A list MP is not prevented from standing (whether or not you think that is a good idea. If you want to have a say on that, see the final para.) I am confident that at that time, the Clerk of the House would have prepared advice for the Speaker on the steps to be taken if the list MP was successful. While that advice has not been published, it would have been checked and updated from time to time, and is probably being reviewed right now.
Is it automatic that a new list MP will enter Parliament for NZ First? Cards on the table, I think that will happen, but the processes of law must be followed. And there a couple of possible difficulties.
First, will Winston Peters himself try to stop a new list MP? I had been pondering this earlier this morning, and I see TVNZ’s Katie Bradford has tweeted that when he fronted the media today:
Winston Peters is considering not replacing himself with another list MP. Says he believes in smaller parliaments.
I would put nothing past Peters, he is wily and experienced. He is indeed capable of defending this course of action, pointing to both a smaller Parliament of 120 MPs, ‘as intended by the Royal Commission’ he would likely say, and to a saving of ‘millions of dollars’ in salary and support costs over the next 2½ years until the 2017 election.
What will he do? He again ducked the question when he was asked on TVNZ’s Q&A this morning, saying only that “The Board [of NZ First] will turn its mind to that,” and noting that the Official Count and the return of the writ are nearly two weeks away. (This new twist will doubtless now be exercising fine legal brains in the Office of the Clerk, and they will be providing updated advice for the Speaker.)
The second possible difficulty is that someone will try to challenge the return and swearing-in of a new list MP. There is no precedent and the Electoral Act is silent on what should happen, so there is opportunity for a challenge if a person has the determination and the resources. The greatest obstacle is that Parliament is the final arbiter of its own membership. It does not look kindly on outsiders attempting to determine or affect that.
I respect Graeme Edgeler’s views explored in his blog four weeks ago. However he brings a lawyer’s view of the law and the Courts to his thinking. As many have found in various ways over time, Parliament is not a Court of law but a political arena.
What happens from here? It is certain Winston Peters will do nothing in the next week. The House is sitting until Thu 1 April, and he will take his seat as NZ First Leader and list MP, using his vote on various bills. He will bask in the limelight and enjoy National’s discomfort. Then fortunately there is a three-week recess for Easter, school holidays, and Anzac Day. It that time much will be determined.
The deadline for special votes is 7pm on Tue 7 April, and the Electoral Commission’s target to complete the Official Count is the next day, 8 April. The writ naming Winston Peters as the MP for Northland should be returned to Parliament a few days after that. A number of things could happen before Parliament resumes on Tue 28 April.
Having mused like Hamlet, Peters could determine in his own mind that there is to not be a new list MP. Chief Electoral Officer Robert Peden said at the time of the Te Tai Tokerau by-election:
"There is no statutory obligation on a list member who wins a by-election to resign his or her list seat. However, by not resigning their list seat, the list member would be preventing their parliamentary party from benefiting from the byelection win through gaining an additional member in the House from the party's list"
Yet Mr Peden has no role to play in interpreting the law and determining what happens in this case. As Chief Electoral Officer, he and his team run elections, and return the writ to Parliament naming the successful candidate. He also fills any list vacancy that arises and returns the writ for that to Parliament. But whether any list vacancy arise or not is for the Speaker and Parliament to determine.
(Parenthetically, full credit to Robert Peden and his team for the conduct of the by-election. Election night results from over 80 polling day voting places and over 13,000 early votes were all online by 8.45pm, and a spreadsheet with a full breakdown of votes at each place was online by 2am. )
I think it highly unlikely that Peters would choose to renounce a 12th MP. While he could publicly make a virtue of a smaller Parliament and saving millions, he would also forgo a crucial vote in Parliament. For any Government bills supported only by National and ACT’s David Seymour, it makes no difference whether the vote is 60-61 or 60-60, they are lost anyway. (Under Standing Order 153, a tied vote is lost.) Changes to the Resource Management Act currently fall into this category.
But consider Members’ Bills such as David Shearer’s Feed The Kids bill, which Peter Dunne and the Maori Party were willing to support to Select Committee. That was defeated 60-60 on a first reading; had NZ First a 12th MP it would have been sent to select committee and possibly progressed further. Currently NZ First has four of its members bills on the Order Paper, and more in the ballot. They will want to progress as many of their bills as possible, and also to support at least some Opposition bills. That may be the decisive consideration.
( As an aside, will National whips on Members Day this week instruct their MPs to filibuster as much as possible in order to delay new bills being balloted? Or could they try to whip through business to get NZ First’s bills on Sky City Convention Centre and on Free Trade Agreements voted down before NZ First has a 12th MP sworn in? Filibustering could backfire.)
If Peters does want to renounce a 12th MP, what then? If the Speaker accepts the situation, that is an end of the matter, and Parliament continues with 120 MPs. But what if the Speaker considers that a list vacancy has arisen? This is an area where the law is unclear. S134(1) of the Electoral Act simply says:
If the Speaker is satisfied that the seat of a member elected as a consequence of inclusion of the member’s name on a list submitted under section 127 has become vacant, the Speaker must, without delay, publish a notice of the vacancy and its cause in the Gazette.
That would then mean the Chief Electoral Officer would then be responsible to determine the name of a new list MP. As NZ Herald has reported, that could be Ria Bond or if she declines, Mataroa Paroro, who is married to the sister-in-law of Tracey Martin. Graeme Edgeler is certain a vacancy cannot arise, saying it is not provided for in s55 of the Act. I am less certain, given the situation is without precedent and not explicitly provided for in the Act. David McGee, the acknowledged authority writes in Parliamentary Practice in New Zealand notes (3rd edition, published in 2005, well after the Taranaki King-Country by-election):
The responsibility for setting in train the machinery for filling a vacancy in the membership of the House rests with the Speaker.
As far as the House is concerned the Speaker has indicated that before taking the drastic step of declaring the seat of a sitting member to be vacant, the Speaker will give the member concerned leeway to argue to the contrary. In a doubtful case this may involve the Speaker referring the matter to the Privileges Committee for consideration.
McGee also notes:
However, both the House and the courts may have a role in establishing or helping to establish for the Speaker that a vacancy in fact exists.
If Peters and the Speaker disagree as to whether there is a vacancy in a list seat, I’d expect that the Speaker would refer the question to the Privileges Committee for inquiry and report, and for the House to receive the report. That has happened on occasion. Of course Winston Peters’ seat on Privileges would have to be taken by another NZ First MP for the duration of the inquiry.
Next, Winston Peters might, having listened to the public clamour for a 12th NZ First MP, and indicate he wants to bring in Bond or Paroro. This might be a matter of straightforward mechanics: the Clerk would indicate whether or not a formal resignation as a list MP would be required, or whether the vacancy would arise on receipt of the Northland writ. The Clerk and her staff are very good at ensuring that procedures are understood and followed to have lawful effect.
Turning to the second area of difficulty: what if someone tries to challenge the return and swearing-in of a new list MP? Yes, someone with the determination and financial resources could engage the services of a prominent public law firm and obtain a scholarly opinion with copious footnotes. No doubt this would be used to generate heat through the media, but might not gain much traction at Parliament. While an aggrieved person might go to Court citing McGee above, it is likely that the Courts would decline to rule, citing comity and deferring to the respect the Courts and Parliament maintain for each other.
To the disappointment of various members of the public, they cannot complain to the Speaker on a matter of privilege - only an MP can take that step. It is unlikely to see how any benefit would accrue to National by doing so, although it remains to be seen what the mood of caucus and their Board would be. There is one MP placed to write to the Speaker: ACT’s David Seymour. Would he be of a mind to put pen to paper?
Finally the Justice and Electoral Select Committee is conducting its review into the 2014 election, as it does every 3 years. There will likely be in time an Electoral Amendment Bill to progress agreed changes before the next election. I hope the members consider clarifying the law on what happens when a list MP wins a by-election. Submissions are open until Tuesday 31 March, and anyone can submit on this or any other matter relating to elections in New Zealand.