Legal Beagle by Graeme Edgeler

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Legal Beagle: D-Day for Dunne (updated)

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  • Graeme Edgeler,

    By “popular” demand :-)

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Kumara Republic,

    because I had wanted a relaxing night

    With the new desktop machine, I'm guessing?

    The southernmost capital … • Since Nov 2006 • 5441 posts Report Reply

  • Craig Ranapia,

    Law aside, I'm rather enjoying the theatrical outrage from the very people who pushed through a retrospective change to the Electoral Act under all-stages urgency to avoid a by-election in New Plymouth.

    BTW, very well done on Morning Report Graeme.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Andrew Geddis, in reply to Craig Ranapia,

    "Law aside, I’m rather enjoying the theatrical outrage from the very people who pushed through a retrospective change to the Electoral Act under all-stages urgency to avoid a by-election in New Plymouth."

    Just as you’re enjoying the insouciant “what’s all the fuss – nothing to see here” response from the very people who reacted with theatrical outrage to the Speaker’s decision to delay declaring Duynhoven’s seat vacant so as to allow said law to be passed?

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Graeme Edgeler, in reply to Craig Ranapia,

    BTW, very well done on Morning Report Graeme.

    I was somewhat disappointed I didn’t get the opportunity to correct the inaccuracies I kept hearing in the interviews before mine – if a political party wants me to take its outrage seriously, it should gets its facts straight, or I’m more likely to assume the outrage is manufactured (e.g. David Parker made a statement about Carter claiming he had legal advice then admitting he had “advice” not legal advice. Carter clearly said advice, and the Winston Peters started calling it legal advice for some reason etc.).

    I am perfectly fine with outrage against a decision of the Speaker. I remember being miffed at a couple of decisions of Margaret Wilson. I also remember National advancing a motion of no confidence in the Speaker in a decision of hers that was unmistakably correct (the decision not to refer Taito Phillip Field to the privileges committee). I have always been quite pleased with this piece I wrote at that time (http://web.archive.org/web/20061104155616/http://www.sirhumphreys.com/lbj/2006/jul/27/margaret_wilson_is_right). National getting on its high horse about how the Speaker makes the final call is more than a little rich.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Andrew Geddis, in reply to Graeme Edgeler,

    David Parker made a statement about Carter claiming he had legal advice then admitting he had "advice" not legal advice. Carter clearly said advice, and the Winston Peters started calling it legal advice for some reason etc.

    Do we care about whether it is "advice" or "legal advice" or "procedural advice" or "interpretation advice" or "pink-with-purple patches advice"? What possible difference does the terminological point make?

    Just listening to Peters on Morning Report right now. He called it "advice". So we're all happy now, right?!

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Craig Ranapia, in reply to Andrew Geddis,

    Well, Andrew, I just found it rather hard to see the compelling public interest in that amendment to the Electoral Act being rammed through under all-stages urgency. (You probably don't want me taking the "grotesque abuse of urgency" hobby horse out for a canter this early in the day.) David Parker and Winston The Fatuous might beg to differ, but that excites my sense of constitutional outrage slightly more than this.

    That said, yes, I can really do with Gerry Brownlee exhibiting slightly more gravitas than chanting "the Opposition need to grow up" (boo sucks) and my eyes are rolling at his, as you put, insouciance. That's self-serving and tiresome too.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Tom Semmens,

    Do we care about whether it is “advice” or “legal advice” or “procedural advice” or “interpretation advice” or “pink-with-purple patches advice”?

    Next you'll be telling Graeme Edgeler it doesn't matter what order his pens are arranged on his desk.

    Sevilla, Espana • Since Nov 2006 • 2217 posts Report Reply

  • Craig Ranapia, in reply to Andrew Geddis,

    Do we care about whether it is "advice" or "legal advice" or "procedural advice" or "interpretation advice" or "pink-with-purple patches advice"? What possible difference does the terminological point make?

    Well, Andrew, you might want to put that question to David Parker because the 'terminological point' seemed rather important while he was accusing the Speaker of pulling his ruling out of his arse and (in passing) not being entirely honest about it.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Graeme Edgeler, in reply to Andrew Geddis,

    What possible difference does the terminological point make?

    Parker was using it to show that the Speaker was being sneaky and corrupt. He was effectively accusing him of misleading the House for a short while. And it matters to that. He wasn't just saying the Speaker got the call wrong, he was using this to imply he was dishonest.

    There are a number of complaints to made about the decision the Speaker has made. This isn't one of them.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Tom Semmens,

    The common sense of Joe Public will slice through the Gordian knot of legalistic analysis of standing orders and the relevant legislation going on here, and simply see a guy getting $122,000 a year of their money for a party which no longer exists.

    $122,000 is chicken feed to long-term troughers like Dunne, but it is a lot of money to most New Zealander and around the water coolers and in the bars and pubs, this is the sort of issue that can really hurt a government.

    Sevilla, Espana • Since Nov 2006 • 2217 posts Report Reply

  • Andrew Geddis, in reply to Graeme Edgeler,

    Oops - I was only half-listening to Parker while getting breakfast for the kids. Sorry!

    But I promise I did listen very carefully to you, Graeme.

    That said ... why won't the Speaker release that advice? I recall that Hunt released David McGee's opinion in the Duynhoven case (which was that he should delay his decision). Can't see why Carter wouldn't do the same, here.

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Rich of Observationz,

    Really, much as I dislike Dunne, if somebody is in parliament and wants to form a party of one, then they should be able to.

    I reckon we should have a fixed allowance for all MPs of something like $200k to cover all personal and parliamentary expenses, with it left to the MP and their party (or their cat) as to how they apportion and spend that. (But they would have to produce accounts for the benefit of their electors).

    What I do think is a problem is the way the "affiliate party" gerrymander has, in a small way, come into being. If Ohariu elected a National MP, that MP would count against National's list total. If it elects Dunne, he doesn't, so National get an extra MP. Same with ACT (and with Anderton for Labour, back then). What I don't know is whether, should Dunne successfully run as an independent next year, his seat would be an overhang? (The Electoral Commission calculator doesn't allow for this).

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Cameron Pitches,

    Graeme, funding issues aside, what are the implications of a deregistered party's vote being counted in passing legislation?

    On Tuesday the Land Transport Management Bill passed its third reading. When the speaker tallied the votes he clearly states "United Future (1 vote in favour)"

    If United Future have been struck off and are an unrecognised party, the speaker may as well have called "Unicorn Party (1 vote in favour)". Surely the Speaker cannot count votes of parties that don't exist?

    http://inthehouse.co.nz/node/19065

    Auckland • Since Nov 2006 • 21 posts Report Reply

  • Graeme Edgeler, in reply to Andrew Geddis,

    That said … why won’t the Speaker release that advice? I recall that Hunt released David McGee’s opinion in the Duynhoven case (which was that he should delay his decision). Can’t see why Carter wouldn’t do the same, here.

    It's not usual, but I don't see a reason why you wouldn't, unless perhaps it wasn't in writing?

    McGee's advice was about how the Privileges Committee should look at it, right? Not that Parliament should debate to report before the decision was made?

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Graeme Edgeler, in reply to Cameron Pitches,

    Graeme, funding issues aside, what are the implications of a deregistered party’s vote being counted in passing legislation?

    There aren't major implications. He still gets to vote, the difference is whether he's called as "United Future" or as "Peter Dunne" (just like Brendan Horan gets to vote).

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Cameron Pitches, in reply to Graeme Edgeler,

    He was called as United Future, that's my point.

    Auckland • Since Nov 2006 • 21 posts Report Reply

  • Graeme Edgeler, in reply to Cameron Pitches,

    He was called as United Future, that’s my point.

    And it has been recognised as a Party in Parliament, so he would be.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Cameron Pitches,

    OK, so the Electroral Commission cancelling the registration of United Future does not affect its status as a Party in Parliament. Gotcha.

    Auckland • Since Nov 2006 • 21 posts Report Reply

  • gavin long,

    There is a point to SO 34(3) if SO 34(1) is interpreted that United Future should no longer be a party.

    SO 34(2)(b) allows a group of 6 or more MPs who are registered to apply to the speaker to get recognised. However, once the speaker has said they can be a party there could be some ambiguity about what would happen if after the speaker had approved the party they then fell under 6 MPs. SO 34(3) therefore clarifies that the requirement of having 6 MPs is an ongoing one and not one that only has to exist when the new party applies to the speaker.

    Since Jun 2011 • 4 posts Report Reply

  • Phil Lyth,

    Thanks to both Graeme and Andrew . . . I am more inclined to Graeme's interpretation, but finer minds than mine will prevail.

    To remind Cameron that it is less than 20 years ago that every contested vote was taken by MPs voting individually, trooping through the lobbies. Party votes are a recent and positive development IMHO

    To pick up what Andrew said over at Pundit:

    that sort of pragmatic, make-it-up-as-you-go reasoning is deeply unsatisfying to us lawyerly types

    Yes, the intersection of politics and the law sees some particularly nasty messes. Annabel Young in her book on lobbying recounted an instance where Air NZ's lawyers gave up on the Regulations Review Committee because it did not behave in the judicial they expected.

    Wellington • Since Apr 2009 • 458 posts Report Reply

  • Graeme Edgeler,

    The following are the only previous Speaker's Rulings recorded on the issue of party recognition, for anyone interested:

    PARTIES (SOs 34–36)

    1 Whatever name a party is registered under with the Electoral Commission is beside the point. The name that a party wishes to be known by in the House is as stated in its letter to the Speaker.
    1999, Vol. 578, p. 17299. Kidd.

    2 Whom the Electoral Commission [registers] 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.
    2002, Vol. 599, p. 15767. Hunt.

    3 Whether under the Standing Orders or the Electoral Act, the Speaker is not concerned with what persons outside the House do, but only with what members of the House do by way of giving formal advice of changes to party arrangements. The Speaker acts on formal advice and does not take the initiative. How members conduct themselves politically is a matter for them to determine.
    2002, Vol. 600, p. 15881. Hunt. 2004, Vol. 617, p. 12554. Hunt.

    4 A suspension of a member from caucus effects no change in a party’s parliamentary membership.
    2003, Vol. 606, p. 3257. Hunt.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

  • Andrew Geddis, in reply to Graeme Edgeler,

    McGee's advice was about how the Privileges Committee should look at it, right? Not that Parliament should debate to report before the decision was made?

    Not certain. But given that the Committee only makes recommendations to the House, which the House then must either accept/reject, it wouldn't surprise me if the advice was that "the House should decide this issue (via the mechanism of a Privileges Committee hearing and vote on its report)".

    Dunedin • Since Nov 2007 • 206 posts Report Reply

  • Rob Stowell,

    While this is a tempest in a teacup, it's another sign of growing disquiet with the speaker.
    It's a very important role, and JK made a poor choice. Carter pretty clearly didn't want the job, and signaled he'd find it hard to shed years of party loyalty. JK's reasons for choosing Carter were all around National's objectives and priorities, and show a continuing lack of concern for parliament, its traditions, and due process.
    The abuse of urgency, the (ab)use of parliamentary sovereignty to over-rule or sideline the courts, or to overturn local democracy; the side-stepping of the select committee process, all in pursuit of Govt policy.
    And the previous Govt was, ahem, not blameless in this regard. While all (perhaps?) perfectly legal, it adds up. It feels like our unwritten constitution is being unraveled and overwritten. That's the disquiet I'm feeling: there's not a clear set of core legal principles to fall back on.
    Feels like time to get debating and start the long march towards a formal constitution.

    Whakaraupo • Since Nov 2006 • 2110 posts Report Reply

  • Graeme Edgeler, in reply to Rob Stowell,

    While this is a tempest in a teacup, it’s another sign of growing disquiet with the speaker.

    But which came first?

    Is Labour opposed to the Speaker because of decisions like this, or is Labour opposed (in part) to decisions like this because it opposes the Speaker?

    I suspect the answer is both, but there's certainly an element of the latter in the *way* they are going about their opposition, in much the same way as Don Brash's motion of no confidence in Margaret Wilson as Speaker stemmed from opposition to her and Labour, rather than the particular decision, which was undoubtedly correct (then-retired MP Richard Prebble supported Wilson on that decision, for example, as did Rodney Hide). But it played into National's argument about Clark being corrupt and Wilson being biased, and I think there's been a similar calculation here, especially in the way the opposition of the opposition has unfolded.

    Wellington, New Zealand • Since Nov 2006 • 3215 posts Report Reply

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