Legal Beagle by Graeme Edgeler


Absent Members

The Civil List Act doesn't get much press. But the laughable $10 fine per sitting day it imposes for AWOL MPs has some calling for change. Newspapers editors. Political journalists. Bloggers. Even the Speaker.

Unlike just about everyone else, it's something I've actually thought about before. I'm just that kind of guy. I've been told I need to get out more. The Law Commission is reviewing the Civil List Act. Its 60-page Issues Paper received five submissions – the Clerk of the Executive Council, the Clerk of the House of Representatives, The Parliamentary Service, the Republican Movement of Aotearoa and me. I suspect most of their consideration focussed on the bits about the Governor-General (the Law Commission recently on Part 1 of the Civil List Act, and the new Governor-General Bill has resulted). But the recent machinations around Chris Carter do not dissuade me from my view: a statutory quasi-fine is a stupid way to deal with public concern about absent MPs.

My preferred solution is the holding of elections every three years. I argued in my submission:

The absence of members of Parliament is a concern – we have elected people in the expectation that they will take an active role in the passing of our laws and the holding of the Government to account. Prolonged or repeated absence of members of Parliament from the House is a matter of genuine public concern, but it is for the public to make what use it will of that information, not for the Clerk of the House...

The frequent absence of a member of Parliament is one of a number of factors voters may wish take into account when deciding how to vote. For myself, were I made aware of the repeated absence of a member of Parliament (presumably via their opponents or the media), I would be less inclined to vote for them, and less inclined to vote for the party that selected them. My vote – along with the votes of others – is the solution to repeated absence just as it is the solution to party-hopping.

The people of Te Atatu chose Chris Carter to represent them in Parliament until the next election. The voters who gave Labour their party vote did so knowing that that would mean that Chris Carter (number 7 on Labour's list) would probably get to serve. And they'll get to make their views known soon enough. In a democracy, there doesn't need to be legislation around things like MP absences or party-hopping. If it's a big deal for us, we get to kick them out.

If this same situation arose and there wasn't a $10 fine in the Civil List Act, people would still be using one of my least favourite words – loophole – and would probably be calling for change, but I doubt anyone would have suggested adding some system of quasi-fines to the Civil List Act as a solution.

This hasn't always been a problem. Other bits of law could have been used to remedy the perceived problem. Section 55 of the Electoral Act includes the following:

55 How vacancies created
(1) The seat of any member of Parliament shall become vacant—
(a) if ... for one whole session of Parliament he or she fails, without permission of the House of Representatives, to give his or her attendance in the House.

It's a pretty rudimentary requirement. I don't believe anyone has lost their seat by falling foul of it, and it's trivially easy to get around; even so, this provision is a dead letter. The House no longer sits in sessions. It could. It just doesn't. Instead of having the Governor-General prorogue Parliament, the House just adjourns itself. In practice, the only way an MP could lose his or her seat under this rule is to never turn up at all for the entire term – not even to be sworn in – at which point all the MPs lose their seats anyway. The practice of sitting as a single session has resulted in other changes in Parliament – many fewer Address in Reply debates for one – but a few Parliaments ago (I think 1999~2002) what is now standing order 89 was amended because it used to require that the third suspension of an MP after being “named” by the Speaker was for the remainder of the session. Someone (I'm guessing David McGee) will have pointed out that as the practice had evolved of holding a single session, this was now a rather harsh penalty. Suspension is now 24 hours for the first offence, a week for the second, and four weeks for the third and subsequent offences.

In an interview with Werewolf, Speaker Lockwood Smith argued:

The Speaker has the extraordinary power of being able to dock their pay. I mean, if I name a member – on the first occasion, they lose a day’s pay. If I name them a second time, they lose a week’s pay. I don’t know very many other people in New Zealand who have the power to dock anyone’s pay like that, but the Speaker has.

So why couldn't “naming” be the mechanism by which absent MPs can lose their pay?

First, it can only be used for grossly disorderly behaviour in the House. Secondly, I'm pretty sure the Speaker is wrong. There is no basis for the claim that MPs 'suspended from the service of the House' lose their pay: not in the Standing Orders (SO 91 states that “A member who is suspended from the service of the House may not enter the Chamber, vote, serve on a committee, or lodge questions or notices of motion.”), nor in the Civil List Act (in fact it requires that MPs be paid). But this gives a pointer for the direction for anyone who – like the Speaker – considers the status quo unsatisfactory.

Until 1996 Standing Orders provided that no member should be absent from the House for more than seven consecutive sitting days without obtaining a leave of absence: contravention of this Standing Order was a contempt of Parliament (punishable by the House after a Privileges Committee hearing). The rule went in the overhaul of Standing Orders that occurred before the first MMP Parliament, but there's no reason it couldn't work today.

That I get to vote next year is enough for me, but if the Speaker and other members of the House of Representatives think Parliament is brought into disrepute by absent members, the remedy is pretty straightforward. Lockwood Smith doesn't need to make a late submission to the Law Commission, and wait for the resulting legislation to traipse through Parliament; he can write a letter to the Standing Orders Committee asking them to consider whether wagging from the House should be a contempt of Parliament. I suspect its members would be receptive.

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