Legal Beagle by Graeme Edgeler

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Legal Beagle: Standing Orders 101

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  • Rich of Observationz,

    That would be a poetic way for chooks and pigs to exact their revenge on us humans.

    ROFL!

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

  • Matthew Poole,

    entrenchment is rarely used in NZ, and arguably underused. MMP isn't entrenched, for example. Neither is the principle of responsible government (Ministers must be MPs), or even the existence of Parliament itself.

    Much of what constitutes ordinary parliamentary behaviour in this country isn't legislated at all, even through "ordinary" (as opposed to entrenched) statute. This includes things like the resignation of a defeated Prime Minister following an election, and the leader of the party commanding the majority of votes in the House becoming the PM. Instead, they're conventions. The military and police swear allegiance to the Queen (and by extension the GG) rather than to the Prime Minister, so removing a rogue government by force would be entirely possible, but it's just not something that forms part of our history. Politicians, whatever we may think of their ideologies and beliefs, tend to honour the conventions of Parliament. That includes leaving when they lose an election.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Rich of Observationz,

    Ireland got around the issue of Parliamentary sovereignty by enacting their constitution through a popular vote that was outside the parliamentary system. (The Dail proposed the new constitution, but did not enact it as an Act). So the Irish constitution is built on a "blank sheet" that doesn't derive from previous parliaments.

    They also assured the acquiesence of the judiciary by requiring them all to sign up to the new constitution in order to remain in office.

    Britain, OTOH accepts the European Court of Human Rights. While this process is often so slow as to be ineffective, it provides some checks. I doubt the UK could abolish parliament, for instance, without isolating itself from the European Union.

    Personally, I think we do need a written constitution. I'm with Billy Bragg when he said (roughly) that Parliament defined it's rights with respect to the King during the English Civil War, but that what has never been defined are the rights of the people with respect to Parliament. Maybe we should take the Irish approach?

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

  • Kyle Matthews,

    what I was really getting at was that Standing Orders as a safeguard (to an already entrenched law or to stop entrenchment without the required number of votes) seems to be relatively easy to get around (and makes the whole idea kind of moot)

    I'm not sure about parliament, but typically you would set aside standing orders in order to do something out-of-the-ordinary but which everyone supports.

    Like if only members are allowed to speak at a meeting, and then on my god, the Prime Minister has offered to speak, we'll need to set aside standing orders so that they can speak. Everyone is in favour, very logical, move on.

    Setting aside to undermine democratic processes should rightly incite riots in parliament. Like Graeme, I'd be pissed if any party voted for that, and they'd pay come next election.

    Since Nov 2006 • 6243 posts Report Reply

  • dave crampton,

    Refuses to offer as in "votes against", or refuses to offer as in "refuses to vote for"?

    Refuses to vote for. Meaning the biggest of the two left/ right factions becomes a minority govt with the MP abstaining on confidence or supply. Busy now, will read rest of comments later.

    welli • Since Jan 2007 • 144 posts Report Reply

  • Craig Ranapia,

    I'm not sure about parliament, but typically you would set aside standing orders in order to do something out-of-the-ordinary but which everyone supports.

    But it's a little more than that. Take, for example, putting the House into urgency to pass legislation without extensive debate or select committee scrutiny. Now, I can see the argument that giving the Government supply is a matter that should be done without delay. Getting potentially unpopular and politically inconvenient bills the hell off the political radar (like amending the Electoral Act to protect Harry Duynhoven's arse and avoid a by-election nobody was keen to fight) not so much.

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

  • Graeme Edgeler,

    I'm not sure about parliament, but typically you would set aside standing orders in order to do something out-of-the-ordinary but which everyone supports.

    Typically, yes. Someone stands up and seeks leave that a standing order be set aside to allow something - leave will often br granted to allow a non-controversial motion (e.g. the appointment of someone to audit the Parliamentary Service) to pe passed without debate. Leave was granted to allow the select committee into the EFA to expand its membership to inlclude all parties, etc (though this may not have technically involved a suspension of a standing order).

    There are occasions (where there is not unanimous support) that suspension of standing orders happens by motion on notice (they put it on the order paper in advance and then have a discussion in the House about whether to do it or not). I can recall two occasions in the last Parliament (I'm sure there were others too). Both involved expanding the scope of a bill in its late stages.

    Standing orders provide that you can't amend a bill beyond its scope (if you've introduced a bill to amend an aspect of the Broadcasting Act relating to NZ on Air, ACT can't move an amendment to split TVNZ into separate commercial and non-commercial companies - you have to introduce a seperate bill and go through the full process with it).

    The latest I remember was the Employment Relations Amendment bill which introduced infant feeding breaks and guarenteed paid coffee breaks. At the Committee of the whole stage (or after or between it, I don't recall), the Government moved to suspend that standing order to allow them to introduce into it an unrelated amendment related to kiwisaver (stopping employers paying those in kiwisaver less than those not in it).

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

  • Kyle Matthews,

    Take, for example, putting the House into urgency to pass legislation without extensive debate or select committee scrutiny.

    Yeah, you won't get any argument from me on that matter Craig. I think parliament shouldn't move parliament into urgency for political convenience. Legislation that urgently needs to be passed, OK, but that's a much smaller list.

    Since Nov 2006 • 6243 posts Report Reply

  • Graeme Edgeler,

    I think parliament shouldn't move parliament into urgency for political convenience. Legislation that urgently needs to be passed, OK, but that's a much smaller list.

    It depends how urgent the urgency is. Urgency can just be used as a mechanism for extending Parliament's sitting hours (though it would be good if it didn't also disrupt other ordinary business). The fact that a large number of bills get sent to select committees before Parliament rises at the end of each year isn't really that galling.

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

  • Rich of Observationz,

    like amending the Electoral Act to protect Harry Duynhoven's arse and avoid a by-election nobody was keen to fight

    From wikipedia:

    His father was from the Netherlands, and Duynhoven had possessed citizenship from birth, but had temporarily lost it due to a change of Netherlands law. According to electoral law, applying for foreign citizenship would require Duynhoven to vacate his seat. The law was seen by many as misguided, however, and Duynhoven, with his huge majority, was almost certain to re-enter Parliament in the event of a by-election. As such, the government passed an act retroactively amending the law.

    I don't see why this would be contentious, except due to the natural desire of opposition to use any hold they can grab against the government. I don't think there's been any serious suggestion that Duynhoven might be advancing Dutch interests against those of New Zealand?

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

  • Graeme Edgeler,

    I don't see why this would be contentious

    Re-writing electoral law to obviate the need to hold an election that is legally required to happen is always on the dodgy side.

    If I recall correctly National said at the time that they would have supported the law if it only applied to Duynhoven. It was instead written to apply to everyone in Parliament at the time. Labour even opposed an amendment from the National Party (and other opposition parties) that would have excluded National members from the protections the law afforded.

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

  • Craig Ranapia,

    I don't see why this would be contentious, except due to the natural desire of opposition to use any hold they can grab against the government. I don't think there's been any serious suggestion that Duynhoven might be advancing Dutch interests against those of New Zealand?

    No, but I'm one of those cranks who thinks that the law as it stands either applies to everyone or nobody. I don't think there was any serious suggestion (and please note the emphasis) that a by-election would have bankrupted the country or rendered New Zealand ungovernable.

    If this bill really had to be put up at all (and I don't think it should have), it should never have been pushed through under extreme urgency with severely curtailed debate and NO select committee or public input. That is the usual method for amending laws that Parliament considers misguided.

    And speaking for myself, my disdain for the incumbent government has nothing to do with it. I'd have been equally pissed off if Duynhoven was a National MP, and Cullen and Gerry Brownlee had got together to cook up some deal. There's some shit you just shouldn't do, regardless of how many people want it.

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

  • Kyle Matthews,

    I don't see why this would be contentious, except due to the natural desire of opposition to use any hold they can grab against the government.

    If it wasn't contentious, then I wonder why it needed to be passed through under urgency. Is there a time limit on how long an MP can hold a seat when they're not allowed to?

    Since Nov 2006 • 6243 posts Report Reply

  • Idiot Savant,

    Is there a time limit on how long an MP can hold a seat when they're not allowed to?

    Yes: until the Speaker notices.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Paul Williams,

    Is there a time limit on how long an MP can hold a seat when they're clearly behaving like idiots when they're not allowed to?

    Yes: until the Speaker notices.

    Which has so far been interpreted in terms of decades, not minutes.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Tim McKenzie,

    Actually only 44% of CA voters voted for prop 13 - that was 65% of the (quite high) 69% turnout at that election - one of the differences between a vote in parliament (or similar) is that turnout tends to be 100% (unless someone's playing silly games)

    Actually, last time I watched a little bit of Parliament, the turnout seemed to be appallingly low. The problem is that only about 7 people cast all 120-ish votes, mostly on behalf of people who didn't even bother to sit and listen to the debate, let alone take part in it.

    Speaking of section 168 of the Electoral Act, I can't figure out what it means for abstentions. Does abstaining on your party vote (in theory, at least) invalidate your electorate vote? Sectioon 178(5) seems like it might allow partial abstentions, but that sentence is far too long for me to understand before dinner. In any case, I would support introducing an explicit "No Confidence" option on either or both sides of the ballot paper.

    <><

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • Kyle Matthews,

    Clark and Turia were quoted on National Radio this afternoon about the entrenchment.

    Clark pointed out that she was happy to entrench, but it didn't mean anything, as it wasn't possible to entrench the entrenching clause.

    Turia said she wasn't sure about that, she'd have to go consult her lawyers.

    It seemed quite obvious to me, perhaps if she read the members bill that she supposedly has ready, and thought about how she'd repeal it, it would become clearer.

    Since Nov 2006 • 6243 posts Report Reply

  • Kyle Matthews,

    In any case, I would support introducing an explicit "No Confidence" option on either or both sides of the ballot paper.

    I just ran an election which had both a 'no confidence' and an 'abstain' option on the ballot paper.

    It's a terrible idea. Voting is not compulsory, but participation in elections is a positive act - it's about choosing people who you want to represent you and set laws and administer the ministries that have power over you.

    Pick the best person/party on the ballot paper. If there isn't one, start one up and find other people to make it happen.

    Introducing negative or opt out options goes against the very philosophy of the act of participating in a democracy.

    Since Nov 2006 • 6243 posts Report Reply

  • Craig Ranapia,

    Clark pointed out that she was happy to entrench, but it didn't mean anything, as it wasn't possible to entrench the entrenching clause.

    Um, I'd have to give Clark a good dose of the slow clap for that. So, it doesn't actually mean anything because any legislation can potentially be repealed, but she will support it anyway?

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

  • Matthew Poole,

    So, it doesn't actually mean anything because any legislation can potentially be repealed, but she will support it anyway?

    As I've said to many people about the s59 repeal, the law is a signal. It says to society "This is right/wrong/allowed/forbidden". It doesn't stop you doing anything (when was the last time a statute book jumped on your car's brakes just as you were going over the speed limit?), but it tells you that society does or does not accept that behaviour. What you choose to do with that message is entirely up to you, but you wear the consequences of ignoring it.

    Similarly, entrenchment signals to future parliaments that the current parliament thinks this is an absolutely fundamental tenet of our democratic system and ought only be meddled with at their peril. Her comment is a recognition that Parliament is supreme, and can undo whatever it so chooses from parliaments past. So she's happy to support sending that particular signal, but isn't so naive as to think that it could never be undone. Her honesty on the matter would be well repeated by Key, who seems to be telling a different story about the Maori seats whenever he opens his mouth to a different audience; are they being kept? Turfed? Entrenched? Kept until the Maori Party is no longer necessary for National to govern, and then turfed?

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Craig Ranapia,

    As I've said to many people about the s59 repeal, the law is a signal.

    Aw, ballocks, Matthew. I do find the spin ingenious in the extreme, but if entrenching the Maori seats is not only "unnecessary" (which is what she was saying 48 hours ago) but "meaningless", Clark could quite honestly and defensibly say she wouldn't support it. Not least because there might be significantly more important issues of greater import to Maori that would require the attention of any Labour-lead government.

    And if it is Labour policy that the Maori seats remain untouched until the end of days, then she should say so.

    But it's not intellectually honest, or particularly defensible to have a bob both ways. Unless she really goes Honest Abe and says bluntly, "if this is price of a fourth term, and the Maori Party can be had that cheap, I've no problems".

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

  • Graeme Edgeler,

    Her comment is a recognition that Parliament is supreme, and can undo whatever it so chooses from parliaments past.

    Section 268 of the Electoral Act is not something from a Parliament past. Its entrenching provisions exists because New Zealanders adopted them in a referendum in 1993.

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

  • Idiot Savant,

    Section 268 of the Electoral Act is not something from a Parliament past. Its entrenching provisions exists because New Zealanders adopted them in a referendum in 1993.

    Um, no. The Electoral Act 1956 included an identical entrenchment provision (s189), which was carried over. The referendum was strictly needed to allow modication of what is now s35 (as it changed the number of seats in the South Island).

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Graeme Edgeler,

    Um, no.

    I'm aware of that, but I think the answer is still yes. If we'd rejected MMP and stayed with the Electoral Act 1956, you could argue that the entrenchment in s 189 of that act was Parliamentary (and thus suspect on supremacy of Parliament grounds). But we voted for MMP and to change the law.

    We gave our assent to section 268, and I think that means something. A Parliament messing with a reserved section by majority isn't (just?) standing up for Westminster democracy and Parliamentary supremacy, they're (also?) standing against the will of the people. In 1993 the people of New Zealand said ''Hey! Voting at 18, the 3-year Parliamentary term, and the secret ballot are important to us, so important that if you want to change them, you're going to have to come back to us and ask in another referendum. However, we'll allow you to avoid having to hold a referendum if you can get 75% of MPs to agree to a law change.' If it wasn't there, maybe we'd have rejected it...

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

  • dave crampton,

    So, it doesn't actually mean anything because any (entrenchment) legislation can potentially be repealed

    Well, that's what Clark said. But, more importantly What Clark didn't say was it is a meaningless entrenchment for another reason. What would happen if the Maori electoral option was entrenched, the Maori seats weren't - and Parliament voted to remove the Maori seats. How much would entrenchment of the Maori option mean then?

    welli • Since Jan 2007 • 144 posts Report Reply

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