Legal Beagle by Graeme Edgeler

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Parliamentary bungling? But by whom?

There have been a number of articles written about the voting in the final statges of the Electoral (Registration of Sentenced Prisoners) Amendment Bill, during which National MPs voted alongside the Green Party to force a change that would prevent the removal of sentenced prisoners from the Electoral Roll. You can read Geddis here.

I haven't fully thought through exactly what the law requires or allows in it's current, inconsistent form, and am not sure there's much advantage is me opining at length.

The law is somewhat of a mess, but I do not think this was a Government bungle. National plus the Greens are a majority in the House of Representatives, so if they agree on things, they've got the numbers.

But I am somewhat interested in how we got here, because it is the second time something like this has happened recently, previously inadvertantly, this time as a deliberate ploy, and I am not sure that Parliament's procedures aren't supposed to allow this to happen (rest assured though that it did, irrespective of whether the rules were followed).

I put a thread on Twitter a few hours ago, and thought to reproduce it here, with a few amendments permitted by the additional characters allowed in a blog post, in case anyone is interested. In short, I blame the Assistant Speaker, but also acknowledge that I am not an expert on all of the fine detail of Parliamentary procedure, so welcome a clear explanation of why I am wrong if you have one.

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We've had a couple of instances recently of parts of legislative amendments being accepted, and parts rejected. First, an amendment by David Seymour to remove safe zones from the Abortion Legislation Bill was defeated in debate on one part and passed in a later part.

Last night, we had an amendment from Golriz Ghahraman to the Electoral (Registration of Sentenced Prisoners) Amendment Bill aimed to allow all (otherwise eligible) prisoners to vote, that was defeated in one part, and passed in another.

While it is not the job of the chair to ensure that legislation is internally consistent and logical, if a vote has already taken on an amendment, and that amendment rejected, that should be the end, if there are subsequent changes contingent on that first vote.

I'm not expert enough in Parliamentary Procedure to know the exact boundary, but I would have expected that both the safezone removal amendment, and especially the all prisoners should be able to vote amendment should have been ruled out of order after being rejected once.

It's hard to know what to search in Hansard to find examples of this, but I found one that I think is similar. In the Education Amendment Bill in 2013, Chris Hipkins moved an amendment to more fully apply the Ombudsman Act and Official Information Act to partnership school sponsors.

Hipkins' amendment was in an SOP like Golriz Ghahraman's amendment was, and amended two different parts of the Bill. It would have added a substantive clause in the bill applying those Acts, and also, in a different part of the bill, would have actually amended the acts themselves to back this up.

After the first vote was held, and lost, when the Committee of the Whole got to the second bit it would have amended, the chair ruled that the vote should not be put, because it was inconsistent with the earlier decision, because that amendment was contingent:

The CHAIRPERSON (H V Ross Robertson): OK. Well, it is out of order because it is inconsistent with an earlier decision of the Committee. The amendment to clause 43 is contingent on the amendment to clause 31 to apply the Ombudsmen Act and the Official Information Act, and the amendment to clause 31 was defeated earlier.

In my view, the safezone and all-prisoners-should-vote amendments are sufficiently similar to this example. Particularly in respect of the prisoner voting amendment, the changes proposed by Ghahraman were there to give affect to the earlier (proposed but defeated) changes allowing more prisoners to vote.

Here's what McGee says:

Amendments inconsistent with the bill or a previous decision of the committee

The second reading is the time to debate the principles of the bill. Amendments in committee that attack the very principles already agreed to by the House at the second reading are not acceptable, nor are amendments that conflict with the provisions of the bill.

Thus in a bill to implement an agreement, amendments inconsistent with the agreement (which must be taken to have been endorsed in principle when the bill was read a second time) are not permitted.

No amendment that conflicts with a decision already taken by the committee on a provision or an amendment can be accepted. An amendment that has been lost in one part of the bill cannot be proposed again on another. Furthermore, when the committee has agreed that a provision shall stand part of the bill, it cannot propose to make an amendment that is inconsistent with that provision later in its consideration of the bill.

Further, an amendment, besides not being directly contrary to a previous decision of the committee, must also be consistent with the pattern of the bill as it has come before the committee. Thus, it was not in order to insert a clause of general application into a bill dealing with specific provisions applying to individual bodies. Nor could a new part containing substantive amendments to an Act be added to a bill when amendments to that Act had already been dealt with in an earlier part of the bill.

It is, however, not part of the Chairperson’s job to redraft a bill so that it is logically consistent. A bill as it comes before the committee may have contradictory provisions. That is for the committee to correct by amending the bill if it sees fit; it is not for the Chairperson to strike one of those provisions out of the bill. The Chairperson merely rules on the admissibility of amendments offered in committee, not on the sense or consistency of the bill as referred to the committee.

The vote on the Electoral (Registration of Sentenced Prisoners) Amendment Bill seems to fall within the words in the second sentence of paragraph three (emphasis added above).

The Committee of the Whole House agreed that the provision of the bill limiting prisoner voting to those serving less than three years should be in the bill. Given this decision, the successful amendment put during the consideration of the later parts of the bill, which dealt with the process of removing certain voters from the electoral roll upon conviction, seems to me to be inconsistent with the earlier provision in the bill, which the House had agreed should be in the bill, and inconsitent with a decision the Committee had taken not to allow prisoners serving three years or more in prison to vote. Given this, I think the Chair should have ruled it out of order before the second vote on it was held.

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