Legal Beagle by Graeme Edgeler

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A submission on the Electoral (Integrity) Amendment bill

I'm no fan of the Electoral (Integrity) Amendment Bill, the law that seeks to reinstate anti-"Waka-jumping" laws. And I wrote a submission saying so, to Justice Committee. A bunch of people have already made submissions on the objections in principle to the law, so rather than repeat them, I decided to focus my submission on changes that could make the bill slightly less worse than it otherwise might be. If you are interested, it follows below:

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The Justice Committee
Electoral (Integrity) Amendment Bill
Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in electoral law.

I thank the Committee for the opportunity to present a written submission on the Electoral (Integrity) Amendment Bill.

I consider that the bill is unnecessary, and harmful. It would move the political system toward one where greater power rests with parties, and party leaders, and less power with individual MPs

New Zealand already has the strongest party system of a Westminster-style democracy. Without other changes to our law (for example around the threshold), any move in this direction is likely to risk the integrity of the system, rather than increase it.

Individual MPs should be empowered to hold their parties to account, on behalf of the voters who put them into Parliament. It is not clear why, for example, an MP going against their party when it votes for legislation it campaigned against at an election should lose their seat because they threaten the integrity of the electoral system, while the MPs who go against their pre-election promises are not seen as threatening “electoral integrity”.

I know there is some support and also some disquiet among members of the Committee to the bill. I am aware that the Committee has received other submissions that address the argument at length, so, while I recommend that it not pass, I also offer some options for the Committee to consider to ameliorate some aspects of the Bill.

Legislation Expiry

The previous version of the Electoral (Integrity) Act included an expiry date. This did not necessarily mean that the law would lapse, but had the effect of requiring Parliament to reconsider whether it continued to be needed. If there is some reluctance to make either no change, or a permanent change without broader buy-in (I am aware that New Zealand First, for example, considers that controversial changes to electoral law should require either broad buy-in, or support at a referendum), then this could be considered.

I submit that the Committee should consider removing the sections dealing with expulsions by parties, and limit the effect of the Bill to resignations from parties. The 1999 Electoral (Integrity) Amendment Bill (before it was amended by the Select Committee) originally only applied only to resignations, and did not also apply to expulsions. The committee might consider again limiting it in that way. It would deal with the worst of the current system (MPs being elected under one banner, and then defecting), while not substantially increasing the risks of harm to MPs’ free speech etc. that will arise with the threat of expulsion from Parliament.

Expulsions

If the committee does consider that the law should cover not just resignations, but also cover expulsions, it should consider whether the balance is correctly struck.

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.

To ensure that the vote fairly reflects individual caucus member’s true positions, I would also suggest that the vote to expel should be required to be a secret ballot of the caucus (in much the same way that this is required before a strike).

Component Parties

Members will recall the Alliance Party. It has been some time since the party was successful in electoral politics, but at the first MMP election, it fielded candidates from the four separately-registered “component parties”: The NewLabour Party, the Green Party, Mana Motuhake and The Democrats, and had 13 elected.

The Alliance formed in part because of the very high 5% threshold that was chosen when we adopted MMP. The form of relationship it had is encouraged by the Electoral Act, which provides for an explicit process by which two or more registered parties can be recognised as “component parties” of a larger party to give them a realistic chance to pass the 5% threshold.

Although there are currently no parties with no component parties, I am concerned that the processes in the Act are inconsistent with the sections of the Electoral Act that create and recognise component parties, do not adequately protect the position of parties that are component parties.

People voted for the Alliance, for example, knowing that they were voting to ensure NewLabour MPs were in Parliament, as well as Green MPs, etc. Standing Order 34(2)(c) even allows that MPs who are members of component parties to be recognised as such for parliamentary purposes. Allowing a party to expel a member of a component party, to be replaced by someone from a different party is likely to distort proportionality, not enhance it.

Similarly, when the Green MPs who were elected as part of the Alliance in 1996 announced the Green Party would be running as a separate party, outside of the Alliance umbrella party, at the 1999 election, it could not fairly be said they distorted the proportionality of Parliament (people voted for the party knowing the Green Party was a component party of the Alliance, and knowing that MPs who were Green Party members would be elected). Given this, it would be wrong to allow such a situation to result in an expulsion from Parliament for distorting the proportionality of the House.

In light of this, consideration should be given to amending the bill to take account of the position of component parties, so that the bill does not inadvertently provide a mechanism to increase disproportionality.

Requirement for Parties to Adopt Rules

New section 55D provides when an MP is expelled by a caucus, the letter sent by the Party Leader must advise that, if the party imposes rules on the expulsion of an MP, they have been complied with. As drafted, a party is not necessarily required to have such rules, but those parties that do are required to follow them.

I submit that parties should be required to have such rules. This is in line with other parts of the Electoral Act, which require parties to have (i) membership rules (ii) rules around candidate selection.

This would not require parties to adopt any particular sort of rule (the rules adopted might simply state that there are no requirements beyond those contained in the Electoral Act), but it would aid in clarity of what is required, particularly in combination with the following submission. Political parties should be permitted a wide latitude in how they run their affairs, but this bill effectively gives parties the power to overrule the election result, ejecting from Parliament someone whom the voters have elected. In the same we that we require them to have rules around selection of candidates, I do not think to great an imposition, to require them to declare in advance how they will do it.

Public Notification of Bills

Section 71B of the Electoral Act gives statutory recognition to party rules already, and in particular requires registered parties to supply the Electoral Commission with copies of the rules governing membership of the party and the rules governing the selection of candidates (as both list candidates and constituency candidates).

I submit that if party rules around the expulsion of MPs is to have statutory recognition, as the bill proposes, these rules should be required to be supplied to the Electoral Commission in the same way. This would not place the Electoral Commission in the position of mediating disputes (which they don’t do either over membership, or candidate selection), but would provide some clarity to the process for all concerned, and allow voters to take account of the rules when making deciding how to vote.

Conclusion

I oppose the bill, and encourage the Committee to reject it, however, if the Committee is minded to support the Bill back to the House, I encourage it to adopt some or all of the amendments I propose above:

  • Consider whether the bill should have an expiry, by which Parliament will have to reconsider whether it continues to be necessary;
  • Change the bill so that it only cover resignations, not expulsions;
  • Require near unanimity of a party caucus before expulsion can occur (or certainly caucus support substantially higher than that presently in the bill);
  • Provide that a caucus vote must be conducted by secret ballot;
  • Provide recognition of the place of component parties;
  • Require parties to adopt rules around expulsion of MPs, in the same way that parties are required to have rules around membership, and selection of candidates;
  • Require parties to publicly notify their rules for expulsion of MPs by providing them to the Electoral Commission.

I look forward to meeting the Committee in person to address my submission.

Graeme Edgeler

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