Legal Beagle by Graeme Edgeler


Practical considerations

Hone Harawira is to resign from Parliament, to seek a mandate from the voters of Te Tai Tokerau as a Mana Party MP.

There has been some disquiet about the cost of a by-election so near to a general election. I would note that the timing is not greatly different from that around Winston Peter's resignation and re-election in 1993 (Tauranga by-election April 17, general election November 6), but I appreciated Danyl's observation:

most the state’s wealth comes from ordinary people working hard and then giving a huge chunk of their income to the government, so spending it is a sacred trust not an endless opportunity to squander it all on gimmicks and whims and political stunts.

But it is difficult to know Hone's true motivations in going, and in going now.

I recently opined that one practical reason Don Brash might prefer to lead ACT rather than start a new political force was the public funding available to ACT through the broadcasting allocation. I don't anticipate that that was a likely consideration at all, but similar practical considerations have been posited by a number of people - including at least one member of Parliament - as a possible motivating force behind Hone's desire for a Mana Party mandate. 

If Hone wins the by-election, will he qualify for a higher salary and a parliamentary leader's budget?

Again, I have no idea whether this has factored into Hone's thinking, but the answer is fraught. It is clear that if Hone were to win a by-election as a member of a registered political party that he would, short of that, however, and it's anyone's guess.

The Directions by the Speaker of the House of Representatives cover eligibility for parliamentary funding.

Under clause 4.5 of the Speaker's Directions, a party is entitled to annual leadership funding of $100,000 + $64,320 per non-Executive MP (i.e. for each MP who isn't a minister) who in its caucus.

Under clause 4.6 there is $22,000 available per MP annually to each party in "party and group funding" (running the whips office and research).

Under clause 4.7, Hone - as an MP representing a large Maori electorate - gets $105,192 as "support funding". This is largely to run electorate offices for Te Tai Tokerau. All MPs get funding of this nature, and it doesn't turn on whether Hone is an independent, has an official new party, or wins a by-election. It may nevertheless be important in assessing the impact of the by-election on the funding to which Hone Harawira is entitled.

The Parliamentary Salaries and Allowances Determination sets out the pay of member of Parliament. It sets different salaries for different member of Parliament: the Prime Minister gets the most, and cabinet ministers and chairs of select committee and party leaders and party whips and others all get different amounts. A leader of a political party in Parliament is also entitled to a higher salary than an ordinary MP, based on the number of MPs they have.

An ordinary MP, with no particularly parliamentary or governmental responsibility earns $134,800, plus an allowance (effectively salary) of $15,300. A Party leader of a party with a single MP (like Jim Anderton - the leader of the Jim Anderton's Progressive Party) gets $148,500 plus the $15,300 allowance.

But assuming that a re-elected Hone Harawira would qualify for the higher salary and the extra funding pre-supposes that the Mana Party would be recognised as a Party. This is far from clear.

The Salaries Determination defines a party as:

a parliamentary political party whose members in the House of Representatives include at least 1 member elected as a constituency or list candidate for that party.

While the Speaker's Directions define a party as:

a parliamentary political party whose members
in the House include at least 1 member

But what is a parliamentary political party? These instruments don't say.  The best bet seems to be the Standing Orders of the House of Representatives. Standing Order 34(1) states:

34 Recognition of parties
(1) Every party in whose interest a member was elected at the preceding general election or at any subsequent by-election is entitled to be recognised as a party for parliamentary purposes.

Note that the last bit of this effectively prohibits MPs from leaving their parties and setting up new parties for the money. For this reason, MPs like Gordon Copeland, and Phillip Field weren't recognised as representing the Kiwi Party or the Pacific Party while in Parliament (and didn't qualify for the higher salary or funding). Recognition as a party in Parliament affects in a number of things: the method of voting during party votes, membership of the Business Committee, rights to speak in response to ministerial statements and others.

This is where the claim that Hone might be doing this for the money comes from. If he wins a by-election in the interest of a party, it is entitled to be recognised under Standing Orders. S.O. 34(2)(b) states that a party may also be recognised for parliamentary purposes if it registers with the Electoral Commission, and has six MPs, and S.O. 34(2)(c) recognises that a party may also be recognised if it is a component party, for which the MP stood as a constituency candidate at the election (a component party is a party registered in its own right under the Electoral Act that has joined with others in an overarching registered party to contest the party vote - during its time in Parliament, the Alliance contained a number of component parties).

But back to the words of S.O. 34(1): when it say "party", what does it mean? Given the later bits of S.O. 34, it is clear that The Electoral Act 1993 can come into play under S.O. 34. And Speakers' Ruling 6/3 states:

Whom the Electoral Commission recognises as a political party is relevant only if the Speaker receives a letter from a member seeking to be recognised in respect of a new party under the Standing Orders.

This does not necessarily mean that the The Electoral Act will be determinative, however, the Electoral Act does define a party: as a registered party (which the Mana Party currently isn't).

It is possible that an independent could be elected a member of Parliament. It hasn't happened in a while, although Derek Fox came reasonably close in 1999. Candidates not representing a registered party don't have be listed as "Independent" on the ballot: at the 2008 general election Toby Hutton of the No Commercial Airport at Whenuapai Airbase Party contested East Coast Bays. Unregistered parties like the NCAWAP and even the National Front, have registered logos with the Electoral Commission that can appear on ballots, and nominate electorate candidates under the party name. A number of candidates do it each election, the party doesn't need to register, or intend to register, it doesn't need to have much of an existence at all (maybe a constitution).

In calculating the divvying up of list seats, independent MPs and MPs from unregistered parties (or parties that don't nominate lists) are treated identically: they are removed from the calculation and cannot cause overhang.

I find it difficult to accept that the salary and funding of a member of Parliament would be determined by what they put on their nomination form, and that a successful independent Derek Fox would be entitled to half a million less funding than a successful Toby Hutton, just because Toby Hutton was elected under the auspices of the unregistered No Commercial Airport at Whenuapai Airbase Party. It may be true, but it almost defies belief.

Should Hone Harawira win the by-election, while claiming to represent an unregistered Mana Party, his claim on the public purse for additional funding as a party leader is no greater that Toby Hutton's would have been.

We cannot be sure how the word party in S.O. 34 will be interpreted, or even whether recognition under S.O. 34 is determinative of recognition under the Speaker's Directions or Salaries Determination (EDIT: McGee says it is determinative; via Big-News. That's good enough for me.), but it is at least possible that an MP elected under the auspices of an unregistered party is not elected in the interest of a party (and thus will not be recognised as a party under the Standing Orders).

It may be that the entitlement of a re-elected Hone Harawira to additional funding will turn on when the new Mana Party is registered with with the Electoral Commission. As a matter of practicality, the process of checking that there are the required 500 members etc. can take six weeks, even if nothing goes wrong.

When Winston Peters sought a fresh mandate in 1993, he ran as an independent, and only later formed the New Zealand First Party. When Tariana Turia sought her fresh mandate in 2004, she ran as a Maori Party candidate. On nomination day for the that by-election, the Maori Party was an unregistered party, but it had applied for registration, and its registration was approved the day before the election. I do not know exactly what this meant, but do not rule out that it made a difference.

Hone Harawira (and the Mana Party), if successful in any by-election may be in line for additional parliamentary funding, but when considering whether this would be a factor in his decision to resign and force a by-election we should look more broadly.

There are other consequences. Hone Harawira is Deputy Chairperson of the Maori Affairs Select Committee (this responsibility ups his salary to $139,100). When Hone resigns, he will lose this. And he won't get it back. He'll also lose his salary. While MPs who retire at (or lose at) general elections continue to get paid for three months after the election, MPs who resign mid-term do not. Their pay ceases immediately.

Even if Hone comes back, and is recognised as a party leader, the six months of higher salary will not come close to offsetting the salary he loses by not being a member of Parliament. The additional salary would be somewhat less than $5000. The forgone salary and allowance is likely to be more than $20,000 (depending on how long it takes between Hone's resignation and the by-election: the Mount Albert by-election was 8 weeks after Helen Clark's resignation, the Mana by-election 5 weeks after Winnie Laban's resignation, and Botany 7 weeks after Pansy Wong's resignation).

There may be $90,000 or so in additional Parliamentary funding on offer, but resigning, as well as costing Hone his Salary, costs him some of his 'perks'. As Hone will no longer be an MP, and will no longer be the MP for Te Tai Tokerau, and his electorate offices won't be his. The rent will be paid for up to one month after his resignation, but his use of the offices will be limited to enabling him to complete
correspondence and remove personal effects. The Parliamentary Service will be permitted to approve special arrangements to maintain basic electorate services, but the staff who used to work for Hone, won't be during the time he's not a member of Parliament. Things like the phone lines we cover for MPs get paid for a month, but after that, he's on his own. His domestic travel budget is pretty much gone straight away (he wasn't in Parliament before 1999, so doesn't get those post-retirement perks). The flight home, and one more flight to clear out his Parliamentary office (which I imagine he'll have to do) will be covered, but the taxis, and the mileage allowance cease immediately - and Hone's had a pretty high travel bill while in Parliament.

I do not know where Hone stays while in Wellington, but an apartment or other rental accommodation is a reasonable guess. The max $2000 per month accommodation supplement stop immediately. If Hone has a lease, he'll be paying it himself from his resignation.

There is some chance that a newly re-elected Hone Harawira and Mana Party will qualify for extra parliamentary money: representing an unregistered party may be enough, or the Mana Party may register in time for this not even to be an issue. Even accounting for the cost of campaigning in a by-election, the cost to Hone personally will probably be less than the $90k or so the Mana Party might be in line for, but still: if Hone is doing this for the money, he needs to redo his sums.

P.S. It was suggested on whichever news I was watching tonight that a by-election cannot be held within the six months prior to a general election. That is not true. The House of Representatives can - by a vote of 75% - determine not to hold a by-election (or fill a list vacancy), if the Prime Minister advises Parliament that a general election will be held within six months. I do not consider this likely. A slightly earlier election (to bring it to six months) just wouldn't fit with the Rugby World Cup, and a much earlier election might affect the referendum on the voting system. The public information campaign doesn't start until June and if, as many people seem to think, John Key favours our adopting the supplementary member (SM) voting system, he would be advised not to hold the general election (which must coincide with the referendum) until people have heard of it. SM finished last in 1992 referendum.

P.P.S. This by-election shows one practical reason why Maori voters can only switch roll type during the Maori option after each census. The deck could easily be stacked by were voters on the general roll able to switch to the Maori roll in order to vote in the by-election.

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