Legal Beagle by Graeme Edgeler

The police have announced that they will not be prosecuting Hon. John Banks under the Local Electoral Act for filing a false donation return following the 2010 Auckland Mayoral election. The complainant, Hon. Trevor Mallard, has a more fulsome letter (.pdf)explaining the decision on his blog.

At the time the investigation was announced, I was quoted in a range of news media about the difficulties of establishing the charge in the Local Electoral Act. Among other observations about the problems with the donation regime in the Local Electoral Act, I observed at various points that:

• Only actual knowledge of the donation would count sufficient, so that even if John Banks had really good reasons to suspect where the donations came from they could still be declared anonymous.
• Only if that knowledge was in place at the actual time the return was signed and filed, would it matter. If John Banks was later told who made the donation, he wouldn't have to say.

I even wrote a 'blog post going through some of the anomalies.

The law provides a substantial out to both donors and candidates who wish to hide the source of donations from the public, if not really from themselves, if that's what they want. We have done a lot to remove such "loopholes" from the laws applying to general elections, but many still remain in our local electoral laws.

What is interesting, is that none of this appears to have actually presented a problem in respect of John Banks 2010 donation return.

Naturally, I cannot be certain that the short police description of the case accurately reflects what could properly be proved. Previous police descriptions of what they could prove have been somewhat malleable. In respect of the Sky City donation in particular, what Police have said is that:

The Police investigation established that on 24 May 2010 Mayor John Bank met with the Chief Executive Officer (CEO) of Sky City Entertainment Group Limited. At that meeting Mayor Banks received a sealed envelope containing a $15,000.00 cheque written out to "Team Banksie 2010".

The reason that police decided that they could not properly charge Mr Banks is that, in effect, they did not believe they could prove he had read the return before he signed it, his having simply sought assurance by a campaign worker that it was correct. Not being able to prove that the return was known by Banks to false, there might still be the possibility of a charge under the strict liability offence (which is much less serious, carrying a fine only) which contains no knowledge requirement, and places the onus on the person charged to proved they took reasonable steps to be sure of the accuracy of their return, but, as I pointed out at the time, there is a strict six month time-limit on summary charges like the one here, so this was never going to be a possibility.

In a post at the time of the first airing of the allegations, Andrew Geddis addressed exactly this possibility: that Banks might know who made the donation, but not know that it was improperly recorded. There is discussion in the comments thread about the possibility of whether someone can be held to have knowledge if simply wilfully blind to the source of a donation. Wilful blindness is a concept that can apply in instances even where the law requires knowledge, but (1) it is not clear it would apply to Local Electoral Act, and (2) having been assured by a campaign worker of the accuracy of the return police probably rightly concluded it wouldn't actually apply here even if it theoretically could.

What next? The big questions remaining aren't legal, but political: if John Banks actually knew who made some of these donation, as the police appear to state they can prove, then some comparison of these conclusions with Banks' statements at the time may be in order. I recall John Banks fudging his answers on a number of occasions, but if he categorically denied something the police appear to claim they can prove, there may be a political cost. I have no idea whether police could actually prove what they say they have established, but if someone with access to media search facilities would care to look up Banks' public claims, others can begin to calculate whether there may be a political cost.

After a fair bit of legal wrangling, the decision in the inquest into the deaths of Chris and Cru Kahui has been released. I haven't read it, but from media reports, it appears to lay the blame squarely on their father. The New Zealand Herald reports the Coroner as saying:

The coroner said he was satisfied on the "balance of probabilities", which is the standard of proof required in civil court cases.

In criminal cases, such as the murder trial of Mr Kahui, the standard of proof is the higher "beyond reasonable doubt".

Mr Evans said that if he was wrong about using the balance of probabilities as the standard of proof in this case, he was "satisfied to the point of being sure".

When Judges say "satisfied to the point of being sure" they mean satisfied beyond reasonable doubt.

But I'll leave discussion of that up to others. I, naturally, am going to focus on the criminal procedure aspects of it, because that is what I do.

The article carried on Stuff.co.nz, and I presume in one or more Fairfax publications, includes the following:

Despite the coroner pointing the finger of blame at Chris Kahui, it is unlikely he could ever be tried again for the murder of his twin sons.

Auckland University law professor Warren Brookbanks said the only way Mr Kahui could be charged with the murders again would be if “dramatic” new evidence against him emerged.

In a case such as the deaths of 3-month-old twins Chris and Cru, in which there was no "smoking gun" evidence that could prove who killed them, it would take a confession to reopen the case, he said.

This is because of New Zealand's "double jeopardy" laws, enshrined in the Bill of Rights Act, which protect people against the “patent injustice” of being punished twice for the same offence.

However, in 2008 Parliament agreed there were exceptional circumstances in which a second trial could be appropriate. Those circumstances include a "tainted acquittal" due to perjury, bribery or fabricated evidence.

Someone could also be tried a second time if new and compelling evidence came to light.

But that was a high threshold to meet, Mr Brookbanks said.

“It would have to be something in the nature of a confession or some very powerful evidence that points towards the guilt of the person that's been acquitted.

"It's likely to be fairly rarely the case that such evidence would come forward, certainly after a major trial where the police have put a lot of resources into getting a conviction in the first place.

"It would have to be something out of left field that was completely unanticipated or unknown at the time of the original prosecution.”

There have been no cases yet in New Zealand of a second trial for murder after an acquittal because of fresh evidence.

This is highly misleading. Even if Chris Kahui confesses, and presents police previously hidden video footage of him shaking his children, he will not be tried again for their murder (or anything else to do with their deaths).

I examined the new exceptions to the double jeopardy in my previous posts on changes to our criminal procedure, but THESE LAW CHANGES DO NOT APPLY TO THE KAHUI CASE.

The new provisions of the Crimes Act, and the provisions in the Criminal Procedure Act yet to come into force, do allow retrials in limited circumstances where fresh and compelling evidence is found, or where an acquittal was tainted by perjury, but they do not apply to cases where the acquittal was entered before 26 June 2008. And Chris Kahui was acquitted on 22 May 2008.

A retrial of Chris Kahui is not so much "unlikely" as impossible. Unless Parliament wants to pass a Bill of Attainder, Chris Kahui is never going to be tried again for causing the deaths of Chris and Cru.

Edit: I have chosen a new Stuff Article to quote, with notes about this in a comment below. Also, please note that I am not faulting the actions of either Fairfax or of any journalist. Other than not yet correcting their story based on the rantings of some guy on the Internet, they appear to have done exactly what I'd expect of a professional news media [also, I don't really expect some quick retraction based on my musings].

I have just caught up with last week's Q+A, and yesterday's Native Affairs, both of which included segments on the Urewera cases.

A number of false claims were made by a number of people. I won't bother to single them out, but I offer the following corrections:

1. The Terrorism Suppression Act does not give police any powers. It just doesn't. The act creates some criminal offences, and then the police have to rely on the same powers they use to investigate other criminal offences (search warrants for imprisonable offences, interception warrants for really serious offences, etc.). They don't have special warrant powers, or surveillaance powers, or arrest or detention powers. Nothing new whatsoever. I repeat this a lot because of the lot of people made this mistake a lot of times. For more information, you can read the posts I wrote at the time of the raids about the reach and meaning of the Terrorism Suppression Act.

2. The High Court Judge did not rule that the police video surveillance was lawful. Rather she ruled that it was unlawful, but the charges serious enough that despite police acting illegally, the evidence would be admitted anyway.

3. In the Court of Appeal, the three judges ruled that some of the video surveillance was unlawful (because it involved an illegal trespass) and some (in relation to the camp itself) was lawful (because they didn't think there was a trespass). Despite the police behaving illegally in respect of some of it, they would have let the evidence in anyway, for same reasons as the High Court Judge.

4. In the Supreme Court ALL FIVE JUDGES said the police acted illegally. There were not two who thought they acted legally. There were certainly not three who "dissented". Each Supreme Court judge thought the police broke the law. In fact, in respect of at least some police action every single judge from the High Court up who heard the case found illegality (albeit the Court of Appeal judges not much). The two judges who dissented in the Supreme Court only did so on the question of whether the evidence should be admitted despite the illegality.

5. The High Court Judge who was granting interception warrants was not granting warrants to do with the video surveillance, so he or she did not say such surveillance was lawful. Interception warrants are about covert audio recording like listening in on phone calls, or tapping into text messages. I do not believe it has been suggested that the act of getting these warrants and undertaking that surveillance was unlawful, and using it to argue that you thought police were acting lawfully with the video surveillance is wrong.

6. The allegations that the accused were setting up a private militia are not unproved. As part of a sentencing exercise, it is a judge's role to make factual findings. This was among his. He heard a whole bunch of evidence, and came to his considered view. Whether that view is correct, and whether that view was open to him given the findings of the jury on the charge of participation in a criminal group is a matter for the appeal courts, but the finding has been made beyond reasonable doubt.

The names of former members of Parliament:

• John Allen
• Arthur Grigg
• James Hargest
• Gordon Hultquist
• William Lyon

will mean little to most New Zealanders. Along with four other members of Parliament, they saw active service overseas during World War II. Not that uncommon, you might think; there are politicians the world over whose military service has stood them in good stead seeking elective office: from Dwight Eisenhower down. But the list of members of the New Zealand Parliament who had served in World War II is much longer than nine. These five are in a special category, as their names appear on the Roll of Honour. They died on active service, while members of our Parliament.

While noting the passing of three of the former members, one MP remarked that Parliament would not want ‘to ask anything of the people which Parliament is not willing to undertake itself’.

[Several members of Parliament also served in World War I, and another served but resigned after signing up.]

Section 55 of the Electoral Act details when a vacancy arises in a seat (after which a by-election is held, or a new list MP enters office). The first reason why MPs may be declared to have vacated their seat is that they have been absent without permission for an entire session. The House no longer sits in sessions, so the rule is now largely pointless, but there remains an interesting caveat: if that member is absent because they are serving as Head of Mission in the Foreign Service (an Ambassador, or High Commissioner), the seat does not become vacant. Walter Nash was our diplomatic representative in the United States, from 1941-1944, re-winning his seat in the 1943 election. But this bit of the law is now irrelevant too. While members of Parliament are occasionally appointed as ambassadors now, they resign to do it.

The law remains however - largely copied over from earlier incarnations of the Electoral Act - a reminder of a time when what was expected of members of Parliament was very different.

With the annual Register of Pecuniary and Other Specified Interests of our MPs , I had the chance again to reflect on how our expectations of MPs have evolved, and to wonder whether it is good, bad, or indifferent. Dr Bryce Edwards (and others too, but I've tended to have their views filtered by Bryce) has written a lot about the professionalisation of New Zealand politics, including the increasing tendency for those in politics to view it as a career. Our politicians, now, perhaps more than in a very long time, have much more in common with each other, than with those they represent.

In 2005, Senator Tom Coburn (whom some of you may have met on The Daily Show earlier this month - worth a watch) was investigated by Senate Ethics Committee. An obstetrician, Sen. Coburn went home during Senate recesses and delivered babies, which is something he campaigned on doing. But earning significant amounts from employment was prohibited, and despite his time being perhaps better spent than those of his colleagues in fundraising, he was the one in trouble.

Not too long ago, the citizen legislator was somewhat expected, and a number of US States retain citizen legislatures, usually sitting for two months as a block each year. Until very recently, Oregon's legislature only met every second year. For the rest of the time, their legislators do whatever it is else that they do. Such circumstances certainly make the establishment of a professional political class less likely.

And so now I wonder whether we might benefit from adopting a more open approach to outside work by members of Parliament.

In January 2010, Labour MP Lianne Dalziel raised concerns about then ACT-MP David Garrett who was, during the Parliamentary Adjournment, representing Commander Vi, the Head of the Ports of Tonga, at the Royal Commission into the sinking of the Princess Ashika.

We had a bit of a conversation on Labour's Red Alert blog, with me arguing:

In a sense, I suppose this could be seen as a form of foreign aid (particularly, of course, if Garrett isn’t charging, or isn’t charging much). We lend our judges to the Islands (although I assume Warwick Andrew is Australian), and have provided people from TAIC to assist this inquiry. I would have been unconcerned – indeed pleased – had an MP like Bob Clarkson given up some of his summer break to work in Samoa re-building houses or schools after the tsunami, and don’t see too much of a problem with different MPs using their skills to help out our neighbours. This sort of inquiry is rare in New Zealand, so there probably aren’t a great many native Tongan lawyers skilled in this sort of advocacy (and I imagine those that are will be representing others involved). Any assistance we can provide is good, and from the transcript Garrett appears to be performing his task ably.

If this was interfering with his Parliamentary work, there might be a problem, but to be honest, I’m not even sure about that.

Lianne responded:

If Mr Garrett was providing assistance to the Tongan government in a matter where he had a particular expertise then I wouldn’t have this sense of unease, which is all I am questioning at present. He is not assisting the inquiry at all; he is representing one of the witnesses, who has been called to give evidence to the inquiry and I am asking whether that is appropriate as a New Zealand Member of Parliament. I have no idea whether he is being paid by the Ports of Tonga Authority – in many respects that’s not the issue – but even if he is not it could hardly be called a form of foreign aid as he is not there to assist the inquiry.

To which I replied:

And although this isn’t assisting the Tongan Government or people directly, I don’t think we can say it’s not indirect. Just about any New Zealand qualified professional (or tradesman) working in the Pacific Islands – even entirely for profit – is going to be of benefit to the country they’re in. A New Zealand builder who sets up a business in Tonga – even though working entirely for profit – is good for Tonga (providing local jobs, passing on expertise etc.). I’d probably say the same thing if Garrett was defending (or prosecuting) someone in some rare (for Tonga) type of criminal proceeding.

I don’t have too much of a problem, if any, with MPs having outside interests. Indeed, historically it would have been expected. Even now, a number of MPs have farms, and I believe Bob Clarkson still had an operating construction business while an MP, etc. In much the same way as private overseas travel by MPs is seen of being a benefit to New Zealand (MPs with broader understanding of the world, overseas contacts and networks, etc), I think having MPs with a foot in the real world can only open their eyes. That Garrett’s outside interests are in a Pacific nation is only to our and their benefit.

If Garrett starts asking questions in the House about this matter then I’d have a concern, but having someone in Parliament this year who spent a month working in Tonga over summer – understanding the local environment generally, building further networks, etc – can only be good for Parliament. Far from being a concern, it would be great to see other MPs doing the same.

I haven't changed my mind. I think Parliament, and parliamentary parties would benefit greatly from MPs who were more directly involved in "the real world", even if - on occasion - it interfered with a parliamentary duty. I think there is something that can be gained from the regular interaction of employment that is missed with the full-on full-time MP we now have.

Our Parliament now sits for three days a week, starting at 2pm on Tuesdays, Wednesdays, and Thursdays in weeks in which it sits. It might sit for a few weeks in a row, and then take a week or two or three recess, and then MPs head back to Wellington. Historically, our Parliament didn't sit in short bursts of a few weeks, with a week or two recess between them. When MPs had to travel by train and ferry to Wellington, they tended to fit in as much Parliamentary time as they could manage, in largish blocks, which much longer recesses between sittings. Abandoning this practice has had many advantages: MPs are no longer taken away from their constituents for extended periods, but they also don't spend extended periods in their electorates.

Of course, it's not just employment. After Dancing with the Stars, Rodney Hide was changed, and I think by general agreement, for the better. His week as a special ed teacher on Make the Politician Work, seems to have opened his eyes as an Associate Minister of Education (which he took over from Heather Roy when she ceased to be a minister). I think Heather Roy's time in the territorials while a member of Parliament had broader benefits as well.

I think that Parliament's consideration of a great variety of matters is enhanced by its having MPs with a broad range of life experiences, and that it would be enhanced if some of those continued once those MPs were elected: I don't doubt that Katherine Rich's advocacy for the prisoner who was handcuffed during birth had some basis in her recent motherhood.

Richard Worth faces some derision for his thesis "The closer economic relationship between Australia and New Zealand: choices other than quiescence or withdrawal in the face of conflict", for which he gained a doctorate while a member of Parliament, but that avoids the question of whether his work may have benefited from his scholarship. After being replaced as Leader of the Conservative Party, William Hague wrote, what I understand is an excellent biography of Pitt the Younger and another of William Wilberforce which Wikipedia says was short-listed for the Orwell Prize. Winston Churchill received the Nobel Prize for Literature for a life's work as an author, including his History of World War II, some of which was published while he was leader of the opposition. We study history in the hope that learning about the past may help us in the future, but we shouldn't doubt that the study of economics might also help.

What is the objection to a member of Parliament doing outside work, other than they will not therefore be fulfilling their parliamentary duties? There are two responses: first, it's up to voters whether they are happy with the work their MPs are doing, and they can vote accordingly. I would be entirely happy had I been the constituent of one of the nine who served overseas in World War II to have been without direct parliamentary representation for that time. Second, the better question is not "what does my MP do in Parliament?", but "what does my MP bring to Parliament?" Whether it's an appreciation of what it is really like to run a small business, or a tour with a peace-keeping force, a university course, or time spent each Friday on the floor of a freezing works, the answer might be that Parliament, and the people, are better served because one MP or other abandons some parliamentary duty for a while.

Parliament's Government Administration Committee is currently considering the Members of Parliament (Remuneration and Services) Bill. It will surprise few of you that I have made a submission. For those interested, it is copied below.

If you have a view on MP's pay, feel free to let them know. There have only been a handful of submissions so far, including one from former National and New Zealand First MP Dail Jones who submits that the former MPs who still get the travel perk shouldn't have to fly economy and should be funded at the level of premium economy airfares. Submissions close today, but it seems to be the practice of the of the Submissions team at Parliament not to close of electronic submissions until a couple of days after the close-off date, so if you want to have a say over the weekend, you'll probably be fine.

You still have a couple of weeks to have your say on the MMP Review as well. Although, if you don't, I won't stop you from complaining. That would be stupid.

##########

Overview

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in electoral and constitutional law. I think the Committee for the opportunity to comment on the Members of Parliament (Remuneration and Services) Bill (“the Bill”). I would welcome the opportunity to speak to my submission.
 
I support the passage of this law, which aims to simplify and clarify various matters relating to the funding of members of Parliament.
 
In particular, I support the introduction of an independent process by which MPs’ allowances and services will be determined. In the wake of some of the scandals in the UK, and the mini-scandals here, there is much room for improvement. Whilst it is important that members are provided the facilities to effectively fulfil their roles, the funding should not be able to be used, for example, in a way that tilts the electoral playing field in favour of incumbency.
 
I strongly urge the Committee to voice its support for the proposal of the Law Commission, contained in the Report that has lead to this bill, to extend the Official Information Act to parliamentary agencies.
 
While I do support the passage of the Bill, I submit that it could be improved in a number of respects, and propose the following amendments to the Committee.

Mid-Term List MPs

As you will be aware, under MMP, members of Parliament can enter Parliament other than at an election, following the vacation of the seat held by a list MP. They are declared elected by the Electoral Commission publishing a notice in the Gazette. There have been a few such MPs in each Parliament since the adoption of MMP.
 
I submit that these mid-term list MPs should be paid.
 
The need for the law to permit this is hopefully self-evident, but neither the Bill nor the Civil List Act 1979 provide for it.
 
Clause 11 presently provides that a salary for an MP is payable during the appropriately specified periods for:

• MPs (whether electorate or list) elected at an election (whether a general election or by-election); and

• Electorate MPs returned at an uncontested by-election.

It does not state (and nor does the equivalent section in the Civil List Act) that a salary is payable to a List MP returned other than at an election, as occurs whenever the Electoral Commission declares someone elected under s 137 of the Electoral Act 1993.
 
This leaves two interpretation – either there is no period in which mid-term list MPs are entitled to be paid, or such MPs are somehow deemed to have been elected at the general election and are entitled to back pay. Neither interpretation is acceptable.
 
I submit that clause 11(2) should be amended to something like:
 
“(2)     However, if a member of Parliament is returned at a by election that is not contested, or is returned as a result of a vacancy of a seat of a member elected from a party list,—
(a)        subsection (1)(a) does not apply; …”
 
The Committee may wish to seek advice as to whether it would be necessary or appropriate for this legislation to validate past salary and allowance payments made to mid-term list MPs.
 
If the Committee adopts my suggestion, it should ensure that clause 12 would not inadvertently allow a mid-term list member who lost their seat at the election, and who enters within three months of polling day to receive two payments.

Deductions from AWOL Members of Parliament

The primary accountability mechanism for members of Parliament is, and should remain, triennial elections. However, I recognise that, in adopting (and substantially increasing) the provision in the Civil List Act 1979 for deductions from members of Parliament who are absent other than in accordance with the Rules of House, Parliament is acting to raise its public standing, and I support it in this endeavour.
 
As clause 14(4) already provides that being absent in accordance with the Rules of the House does not count as being absent for the purposes of a deduction, and that all legitimate excuses for absence will therefore never be penalised, I submit that there is no reason to allow members of Parliament nine unexplained absences each year before imposing partial deductions from their salaries. The law should simply provide that each sitting day that the member is absent in breach of the rules of the House, the appropriate deduction should be made.
 
I also submit that the deduction should be a percentage (currently proposed to be 0.2%) of the yearly salary of the member, not a percentage of the salary of an ordinary member. A member who receives a higher salary (for example, as a party leader) does so because they have greater responsibility. Their unexplained absence from the House is therefore a greater violation of the public trust, and should be censured accordingly. Failure to apply the same level of deduction to all members would involve holding back bench MPs to a higher standard than more senior MPs. The current figure of $283.60 per sitting day may be 0.2% of an ordinary MPs’ salary, but it is less than 0.07% of the PM’s salary. Whatever the percentage is, it should apply across the board.
 
I submit that the figure adopted of a 0.2% deduction per

sitting day is too low. This would be an appropriate figure if the deductions could be made for non-sitting days as well, but as it is not proposed that they should be, the figure should be arrived at taking account of the average number of sitting days in a year. I agree with the underlying policy as proposed by the Law Commission that a member should not lose all their salary, as there is work outside of the House, but the proposal is rather derisory when the number of sitting days is taken into account: a member who improperly absents themselves from every sitting of the House in a given year would still retain over 80% of their salary.
 
There are 96 sitting days proposed for 2012. Given this level, I submit that a deduction of 0.5% per sitting day would be more appropriate – this would see a member who was AWOL lose a little under half their salary. Few employers would be nearly so generous.

Deductions from Suspended Members

Following a submission I made to the 2011 Review of Standing Orders, the Standing Orders Committee unanimously adopted the following:
 
We recommend to the Government that the legislation to replace the Civil List Act 1979 include a provision to apply salary deductions to members who are suspended from the service of the House.
 
The government’s response to this unfortunately occurred after the introduction of the Bill, but it noted that it considered that consideration of such an amendment would be within scope:
 
The recommendation of the Standing Orders Committee relating to salary deductions for members who are suspended can be considered as part of the select committee consideration of the relevant provisions of the Members of Parliament (Remuneration and Services) Bill.
 
I commend the recommendation of the Standing Orders Committee to you, not lease because it is something that many (including the Speaker) already believed happened. The suspension of a member from the service of the House is a rare event; it is also serious, and warrants a deduction at least as serious as that applying to AWOL members. Because this suspension covers both sitting days and non-sitting days, a deduction of 0.2% per day is appropriate.

Record of Members’ Attendance

In order to meet the interests of the public in holding members of Parliament to account, I submit that the Committee should adopt the recommendation of the Standing Orders Committee:
 
We recommend to the House that, when legislation to replace the Civil List Act 1979 is to come into force, a sessional order be adopted requiring the Clerk of the House to record and publish members’ attendance at parliamentary business and approved absences.
 
The public is entitled to know which MPs are in Wellington doing what we expect of them, and those who are not. An attendance register is the least we can expect.

Three-yearly Parliamentary Salaries

I submit that the level of parliamentary salaries should be set once per term, to take effect for the following term of Parliament. I note that section 19(5) of the Remuneration Authority Act 1977 already permits this, and consider it a proposal that is overdue.
 
The setting of parliamentary salaries for the whole of a term is something for which David Farrar has long advocated. I can do no better than adopt the argument he has presented on his ’blog:
 
Every year the MPs go through a self-flagellation when the Remuneration Authority does their annual pay adjustment for MPs. It is either too much, or it is at the wrong time, or it is backdated etc etc.
 
This will always be the case, as MPs getting pay rises during term of Parliament never will be popular.
 
The easy way to solve this, is what I have long advocated – set the salary and associated terms around three months before each election, for the next term of Parliament.
 
So MPs would get elected to Parliament for a term, on a known salary which remains constant during that term.
 
(http://www.kiwiblog.co.nz/2010/12/mps_pay_should_be_constant_for_the_term.html)
 
Given the particular position in which MPs find themselves, with a three-yearly electoral cycle, this is entirely appropriate. Voters would then be in a position of electing members of Parliament, to set terms and conditions for the term of the Parliament.
 
I note that clause 29 already provides that the determination of services under section 18 happens once each term. This could be amended, or a similar clause added, to provide for the determination of salaries and allowances under section 9 also occurs once each term.
 
If this is not adopted, the procedure by which the Remuneration Authority recommends backdating of MPs salary increases should be removed. The Remuneration Authority should be tasked

with starting its consideration early enough that this is unnecessary. If it is failing a statutory obligation to do it by a particular time, you should sack the members and appoint someone who will.

Travel Entitlements of Former Members

I submit that all provision of travel entitlements for former Members should be abolished.
 
The justification for the continuation of this provision is that MPs at one point gave up a salary increase, and received the travel entitlement instead. That three- or six-year period in the 1970s for which MPs were “underpaid” was remedied with above-inflation salary increases, shortly thereafter. This tradition continues apace, which the salary increases of both ordinary members and ministers still exceeding inflation.
 
The vast majority of former members of Parliament who now benefit from this entitlement never suffered the “loss” that justified it. It was never a condition of their terms of employment, and was not factored into salary determinations in the way that MP’s direct travel entitlements were.

It is now 14 years since the entitlement was abolished for newly retiring MPs. Those who have even the remotest claim to have suffered through its removal have now had a minimum of 14 years in which to enjoy it. This is long enough. Whatever loss they may have endured, they have now been more than compensated.

I accept that former Prime Ministers may be in a different category, but consider that their needs are met by the provision of the annuity.

We can be grateful for the service of members of Parliament, and for the sacrifice of their families, but members of Parliament are well remunerated, and have been for a very long time. There is no justification for continuing this perk, and it should be abolished.

Other Matters

Clause 9 – Differing Salary Levels

Clause 9 permits the Remuneration Authority to provide for a different salary to be paid to a member of Parliament based on the electorate the member represents. It may be appropriate for provision to be made for differing allowances to be paid (or differing levels of support provided) to members of Parliament from a large electorate, but it is not appropriate that the salaries should be able to differ, and I submit that the Committee should amend the provision accordingly.

Clause 12(3) – Payment of former Deputy Speaker

Clause 12(3)(a) provides for the persons who hold officer as Speaker and Deputy Speaker on polling day to be paid as such between polling day and the first meeting of the House following the Polling Day.
 
In respect of the Speaker, this presents no problem, however, in respect of the Deputy Speaker, the provision is a misnomer, and will be of no effect.
 
Section 13 of the Constitution Act 1986 provides that the Speaker continues in office until the close of polling day, but it does not provide that the Deputy Speaker does also. This is backed up by Standing Order 29, which provides that the Deputy Speaker (and the Assistant Speakers) only remain in office for the term of Parliament. As the term of Parliament ends at dissolution/expiry, well before polling day, there is no “person who held office as … Deputy Speaker on polling day” to be paid at the higher rate clause 12 envisages.
 
Accordingly, I submit that the words “or Deputy Speaker” should be deleted from clause 12(3)(a), as they are entirely meaningless under our present constitutional arrangements.

Clause 40 – Annuity Payable to former Prime Ministers

While the payment of an annuity to a former Prime Minister may be appropriate, I do no believe it should be paid while that person remains a member of Parliament, or during the three months after a general election in which that person is effectively being paid as one. The salary, allowances, and support provided to members of Parliament are more than sufficient to provide for whatever work they may be undertaking in their capacity as a former Prime Minister.

Accordingly, I submit that that the words “he or she holds an office for which”, and the phrase “(other than the salary of an ordinary member of Parliament) should be removed from clause 40(3).

Clause 42 – Death of a member while in office

Clause 11(1)(b)(ii) provides that a member’s salary will cease when they die; this clause provides that a salary at the rate of an ordinary member of Parliament is payable to the surviving partner or dependent children of that MP for three months.

As clause 12(2)(b) provides for the cessation of the salary payable to former members, the Committee should consider whether it would be appropriate to amend this clause to allow for the continued payment of a salary to a member’s partner or dependent children for the remainder of the three months that that salary would have been paid for.

It is anomalous that the family of a deceased MP is provided three months support if that member, after their retirement from politics, dies one day before an election that they weren’t running in, but receives no support if that MP dies one day after the election that they weren’t running in. The distinction that the Bill draws is without merit.

Conclusion

I am not convinced that we shouldn’t just determine appropriate salaries for member of Parliament, and simply inflation index them. I anticipate such a proposal may fall on deaf ears, and is possibly outside the scope the Bill, but it is nevertheless something that should be considered for the future.

I submit that the Committee should recommend that the Members of Parliament (Remuneration and Services) Bill be passed, with amendment. I look forward to appearing before the Committee to discuss it further.