Legal Beagle by Graeme Edgeler

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Legal Beagle: Standing Orders 101

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  • Graeme Edgeler,

    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?

    Interestingly, we kind of have that situation at present. The membership of the Representation Commission (the body that draws electorate boundaries) is entrenched, and so is the membership of the Representation Commission for when it determines the Maori electoral boundaries. A bare majority might repeal the Maori seats, but we'd still have to appoint people to a body that would delineate the boundaries between them!

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

  • dave crampton,

    Interestingly, we kind of have that situation at present.

    Exactly. That's why Clark is being duplitious in citing the repeal of entrenchment legislation for not entrenching the option when there are other unstated reasons

    welli • Since Jan 2007 • 144 posts Report Reply

  • Kyle Matthews,

    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.

    She did say that it was Labour policy that the Maori seats remain untouched.

    Her line was "this won't make a difference, but we're happy to do it". Given that the cost will be in the time of parliamentarians and their staff, and printing the law, it's a lot less worse than a bunch of other things parliament does under coalition agreements or otherwise, which are stupid laws that actually cost money to implement.

    It was a pretty clear signal to the Maori Party that Labour already supports their bottom line for a coalition, don't go jumping into bed with National.

    Since Nov 2006 • 6243 posts Report Reply

  • Idiot Savant,

    Dave: the seats are inseperable from the option; both are covered in s45.

    And to follow on from Graeme's point, not only would we still have to appoint people to the Representation Commission to determine the boundaries of non-existent maori seats, we would also have to calculate the general electoral population as excluding the Maori electoral population (which, one presumes, would be legislatively set at zero, or else a repeal really will screw hings up). Repealing these seats neatly already requires a supermajority.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Idiot Savant,

    Graeme: apologies; I thought you were suggesting it was a novel piece of law.

    I agree; while it can technically be circumvented, the fact that it has been passed by a referendum should be seen as binding Parliament. After all, they work for us (swivel on that, Dicey!)

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Idiot Savant,

    Dave: Excuse me; I'm flat out wrong; I apologise; the Maori option is in s76 - 78.

    Stil, if we entrench that, then any repeal of s45 would effectively strip maori of any Parliamentary representation. Good luck making that fly.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Idiot Savant,

    Concrete proposal for entrenchment here.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Graeme Edgeler,

    Stil, if we entrench that, then any repeal of s45 would effectively strip maori of any Parliamentary representation. Good luck making that fly.

    National has promised to begin a constitutional process to remove the Maori seats in 2014. The most likely mechanism for such a process has always seemed to me to be a referdum. They wouldn't need good luck to make that fly, just a bare majority in the House and the populace. Entrenchment may have absolutely no effect on their plans.

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

  • Tim McKenzie,

    Pick the best person/party on the ballot paper.

    It sounds like you would want me to vote for the lesser of two evils (or even 19). You know what? Evil is evil, and I don't want to have any part in it.

    ... If there isn't one, start one up and find other people to make it happen.

    Even if I thought it was ethical for me to establish yet another faction, I have neither the skills nor the energy to do so. And what makes you think I would vote for myself, anyway?

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

    If your electorate had only one candidate, would you want a No Confidence option? What if it had just two candidates: Hitler and Stalin? It's very easy to say that you could have put yourself on the ballot paper several weeks before, but maybe you couldn't have. Maybe you were still under 18 when nominations closed. Maybe you're too ill to contest an election. Maybe you're too poor. Maybe you wouldn't vote for yourself, anyway. Or maybe you were just unaware of the situation until it was too late. In any case, you're now presented with two options: Hitler or Stalin. Do you engage in the "positive act" of voting for one of them? Or do you refuse to be morally culpable for what either of them would do with the power you might give them?

    It's worth remembering that Hitler was, in fact, democratically elected. If the SPD and KPD had managed to cooperate, the other most likely outcome of that election was a somewhat communist government. Fortunately, New Zealand is far from having Nazis-vs-Communists-style elections. But if we continue to insist on voting for the least evil party that's likely to win, then what's to stop the parties from gradually becoming more and more evil until we do have such an election in several decades' time?

    <><

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • Matthew Poole,

    Personally, I think we do need a written constitution.

    Why? What problems would be solved by a unified documentation of our constitution to replace our mishmash of conventions, case law, and statutory instruments? Is something dysfunctional about how things are at present, that having everything written down in one place would resolve?

    I find that most people who say "We need a written constitution" really mean "We need Parliament to be constrained, somehow, in what they can do to our rights." Which requires a minor change to the Bill of Rights Act, and an additional section, maybe with an entrenchment. That's it. And a written constitution that just replaces what we've got at present won't give us that, unless it's set out as an end goal to start with, in which case we may as well not bother with all the expense and instead just make the BORA changes at the outset.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Idiot Savant,

    I find that most people who say "We need a written constitution" really mean "We need Parliament to be constrained, somehow, in what they can do to our rights."

    Usually. Though sometimes they mean "we should have a constitutional structure which mirrors my whacko theory of the week", which is a whole different kettle of fish. But there's no blank slate in a stable, democratic society - you need to persuade people that your change is necessary. And on that front, the natural approach is constitutional incrementalism, not radical US-centric blank-slatery.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • dave crampton,

    <i>Excuse me; I'm flat out wrong; I apologise; the Maori option is in s76 - 78.
    Stil, if we entrench that, then any repeal of s45 would effectively strip maori of any Parliamentary representation. Good luck making that fly.<i>
    But the situation you have described is Labour's policy. Entrenchment of the Option but not the seats. tjh Maorio Party has a bil to amend the Maori seats. After some of our comments on the bill the Maori Party has advised that it is changing its bill of to include entrenchment of parts of the Maori electoral option as well as the seats. Good.

    I've written about that here

    http://big-news.blogspot.com/2008/10/bloggers-encourage-maori-party-to-amend.html

    welli • Since Jan 2007 • 144 posts Report Reply

  • Kyle Matthews,

    If your electorate had only one candidate, would you want a No Confidence option? What if it had just two candidates: Hitler and Stalin?

    Well, none of those options occur here.

    In fantasy dictator election land, I can see how a no confidence option would be useful.

    In NZ it would just encourage people to turn up and then effectively not vote. In which case, it would make more sense for them to stay at home.

    But if we continue to insist on voting for the least evil party that's likely to win, then what's to stop the parties from gradually becoming more and more evil until we do have such an election in several decades' time?

    Because if a major or minor party, or indeed all the parties become 'more evil' over time, then they'll lose votes and not get elected. And people will form other political parties that aren't evil and that do get elected and win and be the government.

    Unlike the economy, the invisible hand actually makes a fair bit of sense in electoral politics.

    It's worth remembering that Hitler was, in fact, democratically elected.

    Well if he was democratically elected, then how would no confidence have changed that? That's a problem with people voting for an asshole, not what is written on the ballot paper.

    Since Nov 2006 • 6243 posts Report Reply

  • Rich of Observationz,

    Why? What problems would be solved by a unified documentation of our constitution to replace our mishmash of conventions, case law, and statutory instruments?

    A well-drafted constitution would:
    - Remove the potential for a constitutional crisis (such as the Whitlam dismissal)

    - Entrench the BORA in a way that could not be changed by a disentrenching vote

    - Establish the Treaty as our founding document.

    - Prevent idiots from claiming that our unwritten constitution sanctions their particular idiocy, like demanding that the G-G not sign anti-child abuse legislation, or believing that being Tuhoe means they don't need to pay income tax. (Well it wouldn't, but it would limit the credence they could expect).

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

  • Tim McKenzie,

    Because if a major or minor party, or indeed all the parties become 'more evil' over time, then they'll lose votes and not get elected. And people will form other political parties that aren't evil and that do get elected and win and be the government.

    Unlike the economy, the invisible hand actually makes a fair bit of sense in electoral politics.

    Evidence, please? No new party has entered parliament since 1996 without having an incumbent MP. When people are voting for the least evil party, they tend to consider only those parties that they think will get into parliament, so that they don't "waste" their vote. This generally means voting only for parties that are already in parliament, which turns into a self-fulfilling prophecy.

    Well if he was democratically elected, then how would no confidence have changed that?

    If No Confidence had won the election, then he wouldn't have been elected. At the very least, it would have given people with consciences (and sufficient foresight) a chance to use their vote in a way that didn't make them morally culpable for either his or his opponent's actions, not even by the voters' inaction in abstaining.

    <><

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • Kyle Matthews,

    Evidence, please? No new party has entered parliament since 1996 without having an incumbent MP.

    Changes in the political parties over the past 12 years have included:

    Greens splitting from Alliance and successfully going it alone, while the Alliance died a painful death.
    Creation of progressives.
    Creation of United NZ/Future NZ whatever Peter Dunne is leading this week - which has been a significant player in forming the government.
    Creation of Maori Party, which had long been predicted would happen with MMP but which was successfully done, and now might hold the balance of power.

    The Maori Party is pretty basic proof of voters using their power at the ballot box to change the political landscape in NZ. Labour got tagged by Maori voters with one big issue, an MP broke away, formed a party which now looks possible to have 7 MPs and hold the balance of power.

    Under your alternative universe, all those voters would have just voted no confidence in their electorate, which would have given them a re-election with the same parties, or... no MP.

    I'm not sure what no existing MP has to do with it. Most of the fracturing of the modern political landscape in NZ has been created by MPs splitting from parties - Jim Anderton, Winston Peters, Peter Dunne, Richard Prebble etc etc. It's still a new party offering something new on the ballot paper.

    If you go back further, there's this whole Labour Party which sprung up to meet the voting needs of the public.

    If No Confidence had won the election, then he wouldn't have been elected. At the very least, it would have given people with consciences (and sufficient foresight) a chance to use their vote in a way that didn't make them morally culpable for either his or his opponent's actions, not even by the voters' inaction in abstaining.

    You miss my point. If he was democratically elected, then presumably people wanted him to be elected. Why would they have suddenly changed their vote from voting for him, to voting no confidence, if that suddenly became an option?

    Since Nov 2006 • 6243 posts Report Reply

  • Idiot Savant,

    Rich: and all of those things could be dealt with incrementally. The bills for several (codifying the powers of the Governor-General and clarifying that they have no power to refuse assent) have already been drafted and are floating round (and after the election, once the dust settles, maybe we should start looking for some MPs to pimp them; at the least it will open up the debate).

    One advantage of incrementalism is that you only have to win one argument at a time. Wheras trying to do everything at once means you have to win them all. It's slower, but we'll get there in the end.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Matthew Poole,

    codifying the powers of the Governor-General and clarifying that they have no power to refuse assent

    That's a very dangerous road to tread. It may be generally symbolic, but the GG's power to refuse assent is a final check on potential outrages by the Legislature. Don't forget that the armed forces and the police ultimately work for the GG, not the PM. Them's quite a few guns (though far fewer than the number in private hands, I know) with which to be trifling.

    If the Legislature managed to self-corrupt within a single term, and could achieve the super-majority required to overturn the term limits and other such electoral requirements, the GG's refusal to assent to the legislation is the last stand before the country turns to civil war. I know it's an incredibly theoretical situation, but having someone who can tell the Legislature to GAGF if they present a particularly odious bill is important. Trust not the pollies, for they are self-interested.

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Rich of Observationz,

    It may be generally symbolic, but the GG's power to refuse assent is a final check on potential outrages by the Legislature.

    Don't forget that the armed forces and the police ultimately work for the GG, not the PM.

    Wrong & wrong. (and exactly the reason we need a written constitution)

    The GG does *not* have the power to refuse assent. G-G's act as UK monarchs, and the last UK monarch to refuse assent was Queen Anne in 1708. The armed forces and police are required to act within the law and take direction from the elected government.

    The PM in any case hires and fires the G-G and I assume any government wishing to usurp power would take the precaution of ensuring their placeman was in first. The PM can even appoint themselves as G-G if they so wish.

    It's much more likely that a rogue G-G like Kerr would use the reserve power they do have (to dissolve parliament) in a partisan fashion than a G-G would act to control a rogue government.

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

  • Tim McKenzie,

    Under your alternative universe, all those voters would have just voted no confidence in their electorate ...

    No, not if they actually had confidence in who they were voting for (which I suspect most of them did in that case). For the record, I wouldn't use the No Confidence option for my electorate vote this time around, but I'd like to have it there as an option.

    I'm not sure what no existing MP has to do with it. Most of the fracturing of the modern political landscape in NZ has been created by MPs splitting from parties - Jim Anderton, Winston Peters, Peter Dunne, Richard Prebble etc etc.

    Exactly. A successful party apparently has to be launched by a sitting MP. If we run out of MPs who have consciences, then where will we be? Fortunately, we still have a few, like Pita Sharples, but parliament seems to be a good place to have your conscience beaten out of you. Remember Ashraf Choudhary and the Prostitution Reform Act?

    If he was democratically elected, then presumably people wanted him to be elected.

    Not necessarily. Perhaps they just didn't want his opponent to be elected.

    Why would they have suddenly changed their vote from voting for him, to voting no confidence, if that suddenly became an option?

    Maybe they would have preferred that option. At the last election, I remember hearing a few voters in Tauranga being quoted in the media indicating that they weren't voting for a candidate, they were voting against one who they thought was more odious. They clearly didn't have confidence in who they were voting for.

    <><

    Lower Hutt • Since Apr 2007 • 126 posts Report Reply

  • Matthew Poole,

    Wrong & wrong. (and exactly the reason we need a written constitution)

    The GG does *not* have the power to refuse assent.

    Says who? The Governor General's website disagrees with you, and I'll take their word over yours, thanks very much. That it's a power that hasn't been exercised in three centuries doesn't make it any less valid. The Americans haven't overthrown a national government in over 230 years, but that doesn't mean the second amendment is irrelevant.

    The armed forces and police are required to act within the law and take direction from the elected government.

    Part of that law says that the GG has all the powers of the Commander-in-Chief of the defence forces, and another part says that the Commissioner of Police serves at the GG's (not the PM's) pleasure. Yes, the GG acts on the advice of the PM in making that appointment, but the GG is the person who appoints and dismisses the Commissioner. I'll grant that the GG likely has no actual power (I couldn't see anything in the Policing Act) to give orders to the Commissioner, but when you control the military the Police are something of a footnote.

    So, you were saying? Remember, just because it's unusual doesn't mean it can't happen. It's the law. But you do raise a good case for having a written constitution ;)

    Auckland • Since Mar 2007 • 4097 posts Report Reply

  • Keir Leslie,

    <quote>Says who?<quote>

    Says a scaffold outside the Banqueting Hall.

    (Oh, and Bagehot. And -- um, I think an awful lot of others.)

    Since Jul 2008 • 1452 posts Report Reply

  • Idiot Savant,

    Matthew: to echo Keir, you're forgetting the uber-convention: the monarch (and hence the Governor-General) acts only on the advice of elected ministers. Or else we cut off their sock budget - or historically, their head.

    Palmerston North • Since Nov 2006 • 1716 posts Report Reply

  • Rich of Observationz,

    Yes, like Idiot says, where the Governor General is mentioned in legislation, they act on advice. Also, the important bit of the Defence Act setting out the chain of command is s7, which says the Minister [of defence] shall have the power of control of the .. Defence Force, which shall be exercised through the Chief of Defence Force.

    Interestingly, I had a look for the times *before* the Queen Anne case when a monarch tried to veto legislation. It was quite hard to research without doing real work involving libraries and books, but: William IV refused assent to a Triennial Act, but was later persuaded out of it. Before that you go back into times involving Charles I, claimed divine right, the battle of Naseby, and the beheading of said monarch.

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

  • Kyle Matthews,

    No, not if they actually had confidence in who they were voting for (which I suspect most of them did in that case). For the record, I wouldn't use the No Confidence option for my electorate vote this time around, but I'd like to have it there as an option.

    In which case the result wouldn't change. The point of putting options on the ballot paper is that possibly they could result in something different and/or useful. The two options from having no confidence on the paper are the same MP or no MP, which is a terrible result.

    Exactly. A successful party apparently has to be launched by a sitting MP. If we run out of MPs who have consciences, then where will we be?

    A situation not improved at all by a no confidence option. And there's nothing stopping people creating parties without an MP, it's just very hard work and hasn't been done successfully under MMP yet.

    Not necessarily. Perhaps they just didn't want his opponent to be elected.

    Well, Hitler was appointed Chancellor of Germany in 1933, so it's somewhat a moot point.

    But the idea that the fate of his party, which was consistently the largest party in German elections in the 1930s, would have been different if there was a no confidence option is wild speculation. This is a party that got over 40% of the vote, there obviously was a fair bit of confidence in them.

    Maybe they would have preferred that option. At the last election, I remember hearing a few voters in Tauranga being quoted in the media indicating that they weren't voting for a candidate, they were voting against one who they thought was more odious. They clearly didn't have confidence in who they were voting for.

    I've just run an election in which some of the candidates weren't qualified to stand up at the podium, let alone do the job, and all of them were elected over the no confidence option by a mile. It does not work, which is why it doesn't appear in our democracy. People vote for candidates, which is a good thing because democracy is should be about making positive choices, not turning up and voting for nothing.

    Since Nov 2006 • 6243 posts Report Reply

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