Legal Beagle by Graeme Edgeler

I have just finished watching Q+A on time delay. In it, both former National Party President Michelle Boag and Unite Union head Matt McCarten made the claim that if Len Brown was to resign before before sworn in for his second term as mayor of Auckland City, that the second-placed candidate would be declared elected and be sworn in.

This is false.

Whatever the reason any New Zealand mayor-elect may not take up office, the result is a by-election. If a mayor (or councillor) leaves office during the term, there is a by-election unless there are less than 12 months to the next full council election.

If a mayor-elect dies, or is disqualified between the vote and the swearing in, there is a by-election. The runner-up can never simply assume the office of mayor. The Local Electoral Act simply does not allow it. I suppose it could. But as that would be really really stupid, it doesn't.

The legislation is clear. The Council of the Auckland "super city" was created under the Local Government (Auckland Council) Act. Section 8 of that law applies the Local Electoral Act to elections for the Council, including the mayoral election. Section 117 of the Local Electoral Act includes the following:

If a vacancy occurs in the office of a member of a local authority or in the office of an elected member of a community board more than 12 months before the next triennial general election, the vacancy must be filled by an election under this Act.

This includes the mayor (see the definition of 'member of a local authority' in section 5).

I do not expect everyone called upon to comment on the political ramifications of matter affected a local body mayor to know this. Before I was asked a week or so ago, I wasn't certain of this. But, seriously, why would you not check before making this claim? And if you are a journalist covering the matter, and are going to be on a panel discussing the possibility of a resignation, why would you not find out what would happen if there is a resignation?

For anyone particularly interested, my submission on the triennial review of Standing Orders follows. I hope I picked up at least some things that at least some of you would like changed. If there's anything you'd like to see changed, submissions closed yesterday, but are - for the moment at least - still being accepted on-line. Alternatively, comment here, or on David Farrar's submission, and maybe someone somewhere with the power will read it :-)

Review of the Standing Orders

Submission of Graeme Edgeler

Overview

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in parliamentary procedure. I thank the committee for the opportunity to make a submission on the Review of the Standing Orders. I would welcome the opportunity to speak to my submission.

My submission addresses a number of discrete aspects of the Standing Orders, perhaps of particular interest to members of the public. I suggest consideration should be given to amendments in the following areas:

• Issues concerning the use of urgency:
  • Question time under ordinary urgency;
  • Urgency used to avoid select committee consideration;
  • Clarity in urgency motions;
• The New Zealand Bill of Rights Act 1990;
• The Crown financial veto;
• Bills affecting the Crown prerogative;
• The election of the Speaker;
• Broadcasting of the proceedings of the House during personal votes;
• Three way votes.

Urgency

There have been a number of improvements to the systems by which the House of Representative accords additional time to the Government to pass legislation. Extended sitting hours are a welcome addition, which allow for the expansion of time without disrupting the ordinary business of the House. In addition, it is now common for leave to be granted for the House to hold question time, despite being under urgency.

Question time under urgency

While I can understand that the ordinary business of the House in holding the government to account will take a back seat when the House accords extraordinary urgency for some item of business, I do not see a particularly strong case for this to occur during ordinary urgency.

I submit that, under ordinary urgency, the standing orders should provide that the holding of question time should be automatic.

When matters are truly urgent, in the sense of legislation being needed to be passed all but immediately, extraordinary urgency will enable the government to proceed with the haste required, and, if necessary, override the ordinary requirement to hold question time. Short of this level of urgency, this should not be necessary, and question time should be held, despite the House being in urgency.

Urgency used to pass legislation without recourse to a Select Committee

Use of urgency in a way that avoids normal select committee scrutiny (particularly to allow passage through all stages) is one of the most concerning uses of urgency. While this will sometime be necessary, Parliament should be very clear about what it is doing before it does it.

Under changes to Standing Orders adopted following the last review, whenever the Government wishes to move a motion reducing the time allowed for a select committee report on a bill to a period of less than four months, that motion is debateable. Counter-intuitively, however, there is no separate debate when the government uses urgency to avoid select committee consideration entirely.

I submit that Standing Orders should be changed to require a separate debate whenever the Government wishes to advance a bill without select committee consideration.

In the same way that a debate on an instruction to a select committee to report a bill quickly is limited to that question, and speeches cannot address the principles of the bill itself,[1] a debate on such a motion would be necessarily limited. Members speaking in the first reading of a debate on an important bill should not be placed in a position of having to decide whether to speak about the bill, or to speak about the process.

Given that this sort of debate is already provided for with short select committee consideration, it should not be difficult to provide for it where the discussion is about whether there should be select committee consideration of a bill at all.

If the Government wishes to use an occasion of urgency to move multiple bills through without reference to a Select Committee, it could perhaps include these in a single motion, which can be addressed as the first item of business once urgency has been accorded.

Clarity in urgency motions

I submit that urgency motions should be required to clear as to what is covered by them. As an example, at the beginning of the last Parliament, the House resolved:[2]

That urgency be accorded the introduction and passing of Government bills dealing with taxation, employment relations, bail, education and sentencing, Government notices of motion Nos 4 and 5, and any maiden statements to be made at times determined by the Business Committee.

I do not consider this should be sufficient. Members of Parliament – and the public of New Zealand – are entitled to know what is going on in the House. I submit that all urgency motions should be required to state:

• The exact bills intended to debated (i.e. by name); and

• The stage or stages through which those are intended to be passed.

It will sometimes be necessary for the Government to introduce a bill under urgency, but there is no reason that people shouldn’t at least know the names of the bills that are to be debated.

New Zealand Bill of Rights Act 1990

Section 7 of the New Zealand Bill of Rights Act 1990, and SO 262 provide important protections to ensure that Parliament is informed of human rights implications in legislation before it passes laws infringing rights.

I submit that Bill of Rights reporting should also occur at other stages in the legislative process. Ideally, this would occur before the Second and Third readings of bills which had undergone substantial amendment in select committee, or the Committee of the Whole, and the House would be aware of the Bill of Rights considerations in any amendments it was consider.

Of course, I recognise that the resource implications in reporting on every bill at every stage, and every amendment, and supplementary order paper may mean it would not be practicable to require it at all stages, but I submit that the Standing Orders should at least allow for Bill of Rights reporting from the Attorney-General at other stages during the passage of legislation.

In particular, I submit that any government supplementary order paper that is referred to a select committee should be subject to a bill of rights report, and major government supplementary order papers introduced at late stages could be considered as well. I anticipate that in respect of such matters, the Bill of Rights implications will have been considered as part of the pre-legislative process in cabinet papers, etc. which should alert the Attorney-General as to which supplementary order papers need attention. Given the work will have been undertaken already, the additional work involved in obtaining sign-off from the Attorney-General should not be too great. It will also assist the House to know whether Bill of Rights concerns present in legislation at introduction have been sufficiently met by amendments made by Select Committees.

Most Bill of Rights concerns in legislation will be present from introduction, but occasionally, the problematic provisions will be introduced during the select committee process or in a committee of the whole House (as happened with the Criminal Justice Amendment Act (No 2) 1999, for example). Alternatively, broader discussion of a bill may result in a greater understanding of the bill of rights implications in it (I think, for example, of the Electoral Finance Bill and the Public Health Bill). A process by which a concerned member of Parliament (or a committee) could seek a renewed opinion from the Attorney-General as to a bill’s compliance with fundamental obligations under the Bill of Rights would be welcome.

The Crown financial veto

The Crown financial veto as contained in the Standing Orders is a relatively recent creation. Previously, it had a statutory basis, beginning in section 54 of the Constitution Act 1852, and most recently, in section 21 of the Constitution Act 1986, which provided the legislative basis for the Crown financial veto, was repealed in 2005.[3]

New Zealand operates under the system of Parliamentary sovereignty, in which the government cannot spend money without the agreement of Parliament. It is also a system where the rule of law requires that the Government follow the laws passed by Parliament. While it will almost always be the case that the Government will command a majority in the House, there will be a few instances, on the occasional issue, where the Government does not have the support of the House for its position.

This will usually not involve money, but on the few issues where it does, if the Government feels strongly enough that it does not wish to expend that money, then its solution should be to state that the vote is an issue of confidence. The provision of a veto, which can be exercised without the support of the majority of the House, is anathema to Parliamentary sovereignty and the democratic underpinnings of the House. The Crown should only ever act when it commands the support of the House. It should not have the power to veto the passage of a bill.

Bills affecting the Crown prerogative

Standing Order 309 provides that “No Member’s bill, local bill, or private bill that contains any provision affecting the rights or prerogatives of the Crown may be passed unless the Crown has, by message, indicated its consent to that provision.”

Like the Crown financial veto, this is provision is a holdover from a time now long past. We are a fully functioning Parliamentary democracy, operating under the principle of Parliamentary sovereignty.

Simply put, if the majority of the House supports a bill that affects the Crown Prerogative, the Crown should wear it. The House should not need to seek its permission to legislate on any matter that it sees fit.

The election of the Speaker

I submit that consideration should be given to the House electing its Speaker using a secret ballot.

The Speaker is creature of the House, and is responsible to the House. It is important that they not only have the confidence of the House but are seen within Parliament and outside as having that confidence. I believe that the election of the Speaker by secret ballot would greatly assist with this.

Election of a Speaker by secret ballot is now common in Westminster Parliaments. The UK House of Commons conducted its first secret ballot for Speaker in 2009 (having adopted rule changes in 2001).[4] Elections for the Speaker of the Scottish Parliament,[5] and for the Presiding Officer of the Welsh Assembly,[6] are also by secret ballot. The Presiding Officer and deputies of the Northern Ireland Assembly are not elected by secret ballot,[7] but there is a requirement that election of the Speaker and deputies has “cross-community support” (a majority of both Nationalist and Unionist members).[8]

The election of the Speaker of the Australian House of Representatives[9] and the election of President of the Australian Senate[10] are also by secret ballot, as are such elections in state or territory legislatures in ACT,[11] New South Wales,[12] the Northern Territory,[13] Queensland,[14] South Australia,[15] Tasmania,[16] the Legislative Assembly of Victoria,[17] (but not the Legislative Council[18]), and Western Australia.[19]

The election for the Speaker of the Canadian House of Commons[20] has been by secret ballot for over 25 years (there is no election for the Speaker of the Canadian Senate, who is appointed on the advice of the Prime Minister[21]). Elections for Presiding Officers of provincial legislatures in Alberta,[22] British Columbia,[23] Manitoba,[24] New Brunswick,[25] Newfoundland and Labrador,[26] Nova Scotia,[27] Ontario,[28] Prince Edward Island,[29] Quebec,[30] and Saskatchewan,[31] are also all conducted by secret ballot, however, the Speakers of the Legislative Assemblies of the three Canadian territories: Northwest Territories,[32] Nunavut[33] and Yukon[34] are elected by motion

The international movement towards conducting the elections of presiders Officers by secret ballot is clear, and the New Zealand House of Representatives remains on the out, by continuing to elect its Speaker in a way that allows for a strong whip to be imposed

I submit that it is time for the New Zealand House of Representatives to consider adopting a secret ballot for the election of the Speaker

Broadcasting of the proceedings of the House during personal votes

The Rules of Filming the House[35] currently provide that:

7. While a personal vote is in progress, a graphic to this effect may be shown in place of live coverage, or a static wide-angle shot of the Chamber may be used, provided that this coverage does not seek to identify how individual members are voting. Any spoken proceedings that occur during a personal vote (such as a point of order) will be covered, subject to the usual rules.

I submit that this should change. While personal votes are uncommon, when they are held, they are usually on issues on which there is uncommonly high public interest in the vote.

There is no good reason to deny people watching at home on television, or via the Internet, access to the same information that can be seen via people sitting in the public gallery. While I can understand a desire not to show what is happening actually inside the lobbies, there should be no reason why, when a personal vote is being conducted, the cameras in the chamber shouldn’t be trained on the Ayes and Noes doors so that people watching at home can see which members are voting which way, with the ambient noise of the house in the background.

The situation during various votes on the same-sex marriage legislation, where people watching from home (and, I understand, from overflow rooms in the Parliamentary precinct), spent several minutes watching a basically blank screen while elevator music was playing was not a good look for the House, and discourages participation by the wider public in the legislative process.

Voting where more than two options are offered

In the course of this Parliament, the House conducted what I understand was its first three-way vote. From the perspective of someone who was sitting in the gallery during the debate on the alcohol purchase age, the process did not seem particularly satisfactory. The procedure where members left the chamber to cast their votes in private leaves much to be desired. It appeared to take an inordinate amount of time, and it wasn’t clear that very many people actually knew what was going on.

While such votes are likely to be rare, there is no reason that the House cannot take note of its recent experience and resolve a more satisfactory process for any repetition. The Standing Orders of the House already provide for a procedure for the conducting of votes where there are more than two options, namely during contested elections for Speaker in which there are more than two nominees. There is no reason why this procedure could not be adopted the next time the House conducts a three way vote. The Chair could simply call upon each member in turn to announce which option they support. I do not imagine it would take any longer than the process used during the drinking age debate, and it might even make for good television.

Conclusion

I look forward to reading the other submissions on the Review of Standing Orders, and I thank the Committee for the opportunity to present a submission.

After my (re-)post about ensuring your vote counts under the single transferable vote voting systems, I had the concern that people might think I was telling them how they should vote. My post was not intended to tell people what strategy they should use when voting (I'll be ranking everyone because I see no downside to it in this election, but there are perfectly good reasons not to).

I don't get to decide what is important for you when you vote. That's on you.

I do not accept that there are wasted votes. I do not believe that people who vote for the Green Party candidate in a marginal race are to blame if a Labour candidate loses. I do not believe that a party vote for the Maori Party is wasted despite the fact they are unlikely to get a list MP. And I don't believe that a vote for a minor party with no hope of reaching 5% or winning an electorate is wasted either. I would like people to vote with the knowledge that these are the consequences of their vote, but if they weigh them up and vote that way anyway, well, that's democracy in action.

Yes, if Peter Dunne hadn't been elected in Ohariu in 2011, National wouldn't have had the numbers to partially privatise state assets. But I also have no doubt that the vast majority of people who voted for Green Part candidate Gareth Hughes in that electorate did so knowing that if Peter Dunne won the electorate, he'd back National, and that they were perfectly happy that they could have used their vote differently to make that less likely. Although I cannot really imagine what the 20 Ohariu voters who gave United Future their party vote, but Charles Chauvel their candidate vote, were hoping for, they certainly don't owe me an explanation.

You do not have an obligation to vote tactically. For your own reasons, you can choose to vote in whatever way you want. In an STV election, you do not have vote for everyone, and I will fault no-one who chooses to rank only some candidates and who because of this doesn't help decide an election that comes down to two people they have left unranked.

My post on STV was aimed at ensuring that people know the consequences of their choices. Leaving some people unranked because you simply do not want to rank them is fine, leaving some people unranked because you think that helps the people you have ranked is a mistake (it does not help them in any way).

I think most people understand the basics of STV (vote your favoured candidate with a 1, your next with a 2, etc.), but not everyone is sure how to make the most of their vote (what if there's someone I really don't want to win?), and my post was aimed at providing some of that information.

I live in Wellington. The four races I get to vote in during this local election season will all be conducted under STV, but everyone voting outside Greater Wellington will also be able to vote in First Past the Post elections, and I had the thought today that perhaps, not everyone knows how to make the most of their votes under that system, so the following Q&A follows:

*********

So you’re voting in an FPP election, and you want know how to best use your vote? Well … here goes.

What is FPP?

FPP is First Past the Post. It is an election system where you vote using ticks.  It can be used to elect one candidate – like a mayor – or to elect multiple candidates in a single ward.

What elections use FPP?

All regional council elections except Wellington use FPP. Most council elections use FPP (the councils in the Wellington area, and in Dunedin, Marlborough and Palmerston North use STV). All DHB elections use STV.

How do you vote in an FPP election?

In the form of FPP used in New Zealand local body elections, you vote with ticks. The candidates with the most votes win.

How many votes do I get?

You get one vote for each vacancy. In a mayoral election conducted under FPP, this means you put a tick next to the name of one candidate. In a council ward electing 3 candidates, you can vote for up to three candidates. If your ward election 5 candidates, you get five ticks

Do I have to use all of my votes?

No. Your vote is still valid even if you don't use all of your votes. In a councel ward electing five candidates, you can put ticks next to 1, or 2, or 3, or 4 or 5 of the candidates, and your vote will count.

What are the ways my vote might become invalid in an FPP election?

If you don't vote for anyone, or if you vote for too many people (e.g. two candidates in a mayoral election) your vote can't be counted. I have no idea whether, if you number three candidates 1, 2 and 3 in a council race electing three candidates, whether your vote will count, so don't risk it!

But is it a good idea to use all of my votes in a multi-councillor election?

Maybe. It depends on what is important to you in casting your vote.

There is one candidate I really really want elected in my local council ward, what should I do?

If you want to increase the chances of one candidate against all of the others and are willing to sacrifice the opportunity to help select other councillors, then voting for only that candidate is your best bet.

Unlike STV, where lower rankings only matter once the people you have ranked higher have already been elected, or cannot possibly be elected, every vote under FPP is a positive act that counts toward someone, voting for someone you kind of like as one of your choices can harm the chances of someone you really like.

This also applies if you really like more than one candidate. You can vote just for your favoured candidate, without using all of your 

I don't think my favoured candidate in the mayoral race has much chance, is it worth giving them my vote?

It can be, but be aware that it may mean that another candidate whom you don't like will have a better chance of being elected.

Under STV there is likely to be no consequence to giving your first preference to someone you really like who has little chance, because you will be able to use your later preferences to decide between the "serious" candidates.

However, under FPP, someone can be elected despite being opposed by the majority of voters. If this concerns you, because you fear that someone may be elected because the votes of the people who dislike them will be split among a range of other candidates, you may want to consider voting for your second or third choice, if you think that person has a better chance of being elected. They might not be your first choice, but if you feel that there is someone who would be happy to have as your mayor, and you think they have a better chance of winning, it can be a good idea to vote for them, even if they're not your favoured option.

So what if there’s someone I really really don’t want elected?

Well, first of all, don't vote for them.

If your main motivation in a first past the post election is to ensure that a particular candidate doesn't get in you have to be a little tricky.

Unlike STV, where ranking everyone above them (in any order you choose) makes the "Anyone But ..." strategy easy, under FPP, you have to know a bit about the likely result.

In general elections, this is usually pretty easy. People who support ACT will often choose to vote for a National candidate to make sure a Labour candidate won't be elected, and people who support the Greens may choose a Labour candidate, to give them the best chance of defeating the National candidate. First past the post elections tend to operate this way, moving toward a result where a lot of people vote against their preferred candidates, to ensure something they consider would be bad, won't happen.

It's harder to do this in local elections, because the options aren't as clear cut, but it is possible.

In local elections, if there's someone you really don't want to be elected, the strategy is to cast all of your votes, for other candidates other than the candidate(s) you strongly oppose. In a mayoral election, this means casting a vote for the one candidate who will likely get the most support out of the others. In a multi-member council ward, this means casting the maximum number of votes (e.g 5 in a 5-councillor ward) for candidates you think will be most likely to beat your nemesis, but without voting for any candidate you are confident will be elected anyway.

That sounds complicated!

Who said FPP was easy to understand? It all depends on what is important to you. For most people, voting is probably a simple matter of putting a tick next to the candidates you like (but not too many!), and not caring about the tactics of it all.

Unlike STV, FPP provides a substantial encouragement not to cast a vote for someone you like if you think they have little chance of winning, so as to avoid the prospect of someone you strongly dislike being elected. This srong negativity in FPP, almost requiring tactical voting at the general elections, is one reason I oppose FPP, but you have no obligation to vote tactically if you don't want to. And, personally, I probably wouldn't.

I'm not voting in a first past the post election this time around, but I do at general elections (the electorate races are run under FPP), and I don't think I've ever voted for solely tactical reasons. Then again, I don't think I've ever been confronted with a candidate who had a good chance of winning, but whom I despised. I'd vote tactically in the right circumstances, but I'm not sure they're that likely to arise.

Don’t forget to vote!

Voting is by postal ballot, and papers have now been sent out, so you should have yours by now. If you don't, it's possible you are not enrolled. It is not too late to enrol to vote in the local body elections, and to cast a special vote.

You should enrol to vote. You can do this online. Or you can get an enrolment form from a Post Shop. Or you can call 0800 36 76 56.

If you haven't received your voting papers, and think you need to cast a special vote, contact your local council.

If you want your vote to count, it has to be with your local returning officer by midday on Saturday October 12. If you’re posting them back, try to get them in the post on or before October 9, to make sure there’s enough time. If you’re getting near the date, it might be safer to drop them off in person at the council, or somewhere like a public library. Your council website – and voting papers – should have all the information you need to do this.

Thanks to the Official Information Act, I can now confirm that a law change in late 2010, which removed the right to vote from a large number of prisoners sentenced to short terms of imprisonment, has given the right to vote to up to 37 prisoners (as at April 2013) serving life sentences, or preventive detention.

Back in late 2010, at the height of National's attempts at bipartisan consensus for electoral law changes, the National Party, with support from the ACT Party (which spoke against, but voted in favour of the law) passed the Electoral (Disqualification of Sentenced Prisoners) Act over opposition from every other party in Parliament.

Under the old law, people sentenced to three or more years imprisonment lost the right to vote while they are detained. Other prisoners remained entitled to vote. The law extended the ban on voter enrolment to all sentenced prisoners. Thanks to a wonderful blogpost by Andrew Geddis, Parliament avoided accidentally giving the vote to a range of people who were disqualified from voting under the old law, but who through amendments recommended by the select committee (which was trying to avoid the new prohibition being retrospective) would have been required to enrol, and entitled to vote. This included people sentenced to preventive detention, and life sentences. A rather big mistake.

They fixed that up during the committee of the whole - adding a section to the law that says that people who were disqualified from voting immediately before the law took effect were still disqualifies. But, thanks to the magic of the OIA, I can confirm that there is a group of prisoners, who would have been banned from voting if the law hadn't changed, who are now entitled to vote.

There are a couple of points to make clear. Under both the old law, and the new law, as soon as a prisoner is released, they are entitled (actually required) to enrol, and are allowed to vote. This includes people serving short sentences, right up to those serving life sentences or preventive detention.

This means that people who were sentenced before 16 December 2010 (when the disqualification law took effect), but who were out at that time, were entitled to vote (assuming they met the other qualifications: NZ citizen or permanent resident, at least 18 etc.) when the law took effect.

Which is important, because as I note above, the fix Parliament included is about ensuring that people who were disqualifed just before the law took effect, remained disqualified. And, therefore, it doesn't cover those who were released at that time, and who have later been recalled to prison to continue serving their sentences (a brief explanation: when someone is sentenced to prison, they receive a total sentence, of which they have to serve a minimum amount, before becoming eligible to be released. If they later get in trouble, the Parole board can recall them to prison to continue serving their sentence until it runs out, for people on life sentences, or preventive detention, recall can be made for the rest of their life.)

And it turns out, that, as at April 2013, there were 31 prisoners serving life sentences (and a futher six serving sentences of preventive detention), which were imposed on or before 15 December 2010, but where the recall happened on or after 17 December 2010 (and a further 160 who were back in prison having been recalled for finite sentences). And unless there was some other reason that meant these people were disqualified to vote as at 15 December 2010 (or if they have now been sentenced for a new offence after 16 December 2010), they will all be entitled to vote, even the ones serving life sentences, and even though, if they law had never changed, they would have been banned from voting. The following statement, from a further OIA response I received yesterday, confirms this:

you have also asked whether a prisoner recalled to prison on a sentence imposed prior to 16 December 2010 would be eligible to vote. In these circumstances, a prisoner will be eligble to register to vote provided that they were not otherwise disqualified under the provisions that were applicable before 16 December 2010.

As Prisoner Manager have a duty to provide eligible prisoners the opportunity to vote, I wish them well exercising their voice in the upcoming local body elections! And you lot, too!

Update/Clarification: have changed the wording above to make clear in light of comments in the thread that I cannot be sure that as many prisoners as I describe are certainly within this group who are entitled to vote. The information I received from Corrections didn't list names, and it is possible that the reply ignored separate prison sentences or other disqualifying factors. The OIA requests do however confirm to my satisfaction that there is a category of prisoners - including some lifers - who are entitled to enrol and vote because of the law change banning sentenced prisoners from voting.

Dear people commissioning polls in preferential elections
(like the Wellington mayoral race),

please take a lead from Australian pollsters, who have gotten used to polling in elections which use preferential voting, and ask people which of the 'serious' candidates they will rank higher. Don't just ask people who their first preference is.

If you do this, your poll may actually have a chance of predicting something useful.

Also, don't only 'poll' your readers!

Regards,
Graeme