In opposition to the Electoral Integrity Amendment Bill

Sir Geoffrey Palmer quote 1.png

Yesterday I put in my submission opposing the Electoral Integrity Amendment Bill. For interests sake, I'm reproducing it here should anyone wish to read it.

“Members of Parliament have to be free to follow their conscience. They were elected to represent their constituents, not swear an oath of blind allegiance to a political party. If an MP feels that membership in another elected party better serves his or her constituents, then that can be put to the test at election time.”

That was the Leader of New Zealand First, Winston Peters, in 1996 when the then National Party MP Michael Laws defected from National to New Zealand First. Given the Electoral Integrity Amendment Bill is being currently considered by Parliament, it’s worth noting that back in 1996, Mr Peters did not demand that Michael Laws resign from both the National Party and Parliament. Instead Mr Peters would have been more than happy for Mr Laws to remain as an MP until the 1996 General Election, had other events in Mr Laws’ career not intervened.

Freedom of conscience and association are justifiably held dear as two of the most important foundations of a healthy and functioning democracy. New Zealand made a point of explicitly enshrining these in our laws through Sections 13 and 17 of the Bill of Rights Act 1990, simply put:
“Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.”
“Everyone has the right to freedom of association.”

As the Select Committee reflects on the Electoral Integrity Amendment Bill, I encourage Members to consider those two sections carefully, and how they apply to the legislation before us. Does it impinge on an MP’s right to freedom of conscience and freedom of association? Does it constitute an interference with those rights?

As I will demonstrate in this submission, the only credible answer to both those questions is a loud and clear “Yes”, and it is for that reason that I have chosen to make this submission which is strongly opposed to this legislation.

While supporters of the Electoral Integrity Amendment Bill tout it as being about preserving the proportionality of Parliament as determined at the previous General Election, this claim does not stand up to basic scrutiny. If the Bill were truly about preserving that proportionality, it would deal with other situations that result in changes to that proportionality rather than just when an MP either resigns or is forced out from their political party. The most recent example of a change to Parliamentary proportional that the Bill fails to address was that which resulted from the Northland by-election in 2015.

As a result of Mr Peters winning that by-election and deciding to bring in Ria Bond from New Zealand First’s list to replace him, the proportionality of Parliament was changed relative to that determined by voters little more than six months previously. National’s share of seats was reduced from 49.59% of Parliament on 20 September 2014 to 48.76%. Meanwhile New Zealand First’s share was increased from 9.09% to 9.92%.

Why is this example important? Because if the Electoral Integrity Amendment Bill was genuinely interested in preserving the proportionality of Parliament, then it should include sections to address situations like the Northland by-election changing proportionality. Such a section would stipulate that in an event where an electorate seat switches between parties during a Parliamentary term as the result of a by-election, other parties would be required to gain or lose list MPs as necessary to preserve that previous proportionality.

If we use the Northland by-election as an example of such a new section in the Bill: Voters had determined on 20 September 2014 that National should have 60 seats in the 51st Parliament and that New Zealand First should have 11. To preserve that proportionality of Parliament after Mr Peters’ win in the Northland by-election, it would have been National that would have been permitted to bring in an MP to bring their number of seats back up to 60, while New Zealand First wouldn’t have been able to bring in someone off their list to replace Mr Peters and would have remained with 11 seats.

The fact that the Electoral Integrity Amendment Bill omits to address such a situation, and only looks to deal with the situation where an MP either leaves their political party and/or switches political allegiance during a Parliamentary term, is indisputable evidence that this Bill is not about preserving proportionality at all.

It is clearly about legislating to introduce a tool for parties and their leaders which constitutes an interference on MPs’ rights to freedom of conscience and freedom of association.

At this point it’s worth noting that the country with an MMP system with which New Zealand is most often compared – Germany – places such a high value on preserving the freedoms of conscience and association for its elected representatives that it has explicitly protected those rights for Members of the Bundestag. Article 38 of the German Constitution states:

“Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.”

The second sentence is especially important for us to consider in that it creates a protection for German MPs to vote with their conscience, against the wishes of their respective party, and not be dismissed from the Bundestag by their party as a result of such an action.

All of this is to say that Germany sees the freedoms of conscience and association for elected representatives as being a fundamental part of a healthy, functional democracy. Germany, perhaps more than any other country, knows the risks of undermining such freedoms.

New Zealand has, relative to other comparable democracies, very few checks and balances on Parliament and the Executive, especially checks that can be accessed and used by ordinary citizens. As a result of this situation, the ability of MPs to disagree with and vote against their party and remain as elected representatives, functions as one of the last and most important combination of checks and balances on the powers of both Parliament and the Executive.

The right of MPs to defy their party and vote against it, or even leave their party should their conscience demand it in more serious situations, while remaining an MP acts as a check on the power of parties to simply force through whatever they like willy-nilly. It functions as a balance against parties enacting or promoting policies which are either too far of a departure from their values or election policies, or are potentially too radical or backwards, in that party leadership should take into account how their own MPs might react to any given course of action.

New Zealand has a proud history of MPs exercising this right to stand up for and act as a check against the power of Governments to do whatever they want. Whether it was Marilyn Waring defying Muldoon’s attempts to invite nuclear powered or armed ships to New Zealand, Jim Anderton rallying against the economic reforms of the Fourth Labour Government, Winston Peters and Michael Laws defecting over a continuation of those reforms under the Fourth National Government, the split of New Zealand First MPs over the behaviour of their leader in 1998, the Alliance fracturing over the Fifth Labour Government’s support for the War on Terror, Tariana Turia fighting back against the foreshore and seabed legislation, or Hone Hawawira disagreeing with the Māori Party being too close in its relationship with the Fifth National Government, this right of MPs to exercise their freedoms of conscience and association has become one of the defining and most important features of our political system.

I, as would many others, would argue that so vital is protecting this right for MPs, that we cannot simply hope that parties and their leaders don’t exercise the powers the Electoral Integrity Amendment Bill would give them to effectively sack defiant MPs from Parliament, such as what happened with the Alliance in 2002, but rather we must ensure that we don’t put the tools to abuse such power in the hands of political parties and their leaders to begin with.

It is clear to any observer that the only purpose of the Electoral Integrity Amendment Bill is to give parties and their leaders a tool that interferes with an MP’s rights to freedom of conscience and freedom of association. It does so by effectively taking away the power to elect, or not elect, MPs from voters, and hands it over to the internal processes of each party’s caucus and internal processes.

As Members of this Committee will well know from their own personal experience, even if they won’t publicly admit it, the claimed “safeguard” of needing two-thirds of the caucus to agree to written notice being given to an MP is little more than a rubber stamp exercise, and in reality will offer no safeguard to this legislation being exploited to quash internal dissention.

While I appreciate that parties and their leaders are mindful of maintaining the cohesion and unity of their Parliamentary members, largely for reasons of their own self-preservation in the face of voters at the next General Election, I would make the point to the Committee that the best way to achieve that is not through regressive legislation that impinges on MPs’ fundamental freedoms under the Bill of Rights Act, but rather through political parties themselves ensuring that not only do they have the processes in place to manage such issues internally, but that they also develop, pursue, and support policy and positions on issues that are palatable to their MPs.

Another consequence of the Electoral Integrity Amendment Bill, and I would go so far as to suggest it may even be an intentional consequence of it, is that it will effectively create two tiers of MPs with different levels of recourse and protection under the law. Electorate MPs who are removed from Parliament under this legislation would have the recourse of contesting the resulting by-election to get back into Parliament, however List MPs would have no such option, and would simply be removed from Parliament barring any legal challenge brought to bare through the court system.

Ironically for a piece of legislation with the word “integrity” in its title, creating two tiers of MPs in such a way would effectively undermine the integrity of our electoral system. As things stand without this legislation, both Electorate and List MPs enjoy essentially the same legal rights and protections and, as such, voters can have confidence that when they cast their party vote they are doing so for a list of MPs that are broadly representative of their values and the needs of their community. Voters also cast their votes the understanding that those List MPs are empowered in the same way as Electorate MPs that they will be able to act as a check against the party or its leadership moving too far away from the policies and values it campaigned on.

However, should the Electoral Integrity Amendment Bill be passed, it would then devalue the position of List MPs by making them far more vulnerable to being summarily removed from Parliament by their party. Voters would not have the confidence that their party vote would be cast for anything more than appointing rubber stamp MPs who would smile and nod at whatever policy platform or legislation their party leadership puts before them.

We currently have a system where party leadership, when considering a course of action to take on an issue or a policy, must take into account not only the advice they receive about the policy, and the views of the public, but also the views of their caucus too, regardless of whether those members were elected via an electorate or the party list. That final bit is so crucially important to the integrity of New Zealand’s democratic system. The political calculation that a party’s leadership must take into account the views of their caucus acts as one of the last balances on the ability of party to simply rely on the pressure of the majority to force MPs to support any position they may take on a given issue.

With the Electoral Integrity Amendment Bill, that balance would be altered in such a significant way that it would have a huge negative impact on the integrity of our system. Party leaderships would no longer have to worry about threat of MPs voting against legislation, or standing up independently against a proposed course of action. They’d no longer have to worry about those MPs, especially List MPs, remaining in Parliament as a thorn in their side, if such a parting of the ways resulted in the dissenting MP either resigning or be sacked from their party. Under this Bill, those MPs would be effectively gone for good, freeing up parties and their leadership to behave much differently than they are now.

Here I think it’s useful to remember the words of the former Green Party co-leader, the late Rod Donald, when he spoke to Parliament opposing virtually identical legislation to that being considered now, “It is vital that MPs are not turned into party robots. Anti-defection legislation is designed to gag outspoken MPs and crush dissent.”

At its core, that is what the Electoral Integrity Amendment Bill is about. It is demonstrably not about preserving the proportionality of Parliament, as it fails to address all other situations which might result in a change to that proportionality. This is especially ironic seeing as the party which is the main proponent of the need for the Electoral Integrity Amendment Bill – New Zealand First – was the beneficiary of the most recent example of such a situation which changed the proportionality of Parliament. Yet they’re not arguing to legislate to prevent that happening again.

The only rational and credible reading of this legislation is that it is designed to equip parties and their leaders with a tool to interfere with the legal rights of MPs (a point which Attorney-Generals present and past have noted with this and similar legislation) and make it harder for MPs to oppose policies or legislation that go against their conscience by the threat of their removal from Parliament by their leaders.

It is simply not good enough to suggest that MPs’ freedom of conscience and association won’t be negatively impacted by this Bill. To put in place a legislative framework that allows parties and their leaders to sack dissenting MPs sends an unmistakably chilling message: dare to defy the party line and you’re gone. That message attacks the very heart of the Bill of Rights Act, and very clear fails the test set out in Section 5 of that piece of legislation which states, “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Disagreements over policy or personalities within a political party are simply not compelling enough reasons to place limits on the freedoms contained within the Bill of Rights Act, especially when imposing such limits undermine one of the few sets of checks and balances within our Parliamentary system.

To the Labour Party Members of this Committee, I would ask you to look to the words of your former leader and Prime Minister, Sir Geoffrey Palmer, who said, “MPs should make honourable undertakings, not legal undertakings. They may be coerced by argument, by public opinion, but not by stand-over tactics in closed rooms by party leaders.”

When you read those words, ask yourself – how does a piece of legislation that gives party leaders the tools to remove MPs who dissent or disagree too much from Parliament support the freedoms, rights, and democracy that we hold so dear in New Zealand?

Furthermore, and I note both with interest and regret, that there are no Green Party MPs on the Justice Select Committee, I would still use this opportunity to call on them to look to the principles of their party, look to their past leaders like the late Rod Donald or Metiria Turei, who have spoken out so strongly against such legislation in the past as being fundamentally undemocratic and an attack on the basic rights and freedoms of MPs. As Metiria Turei put it, “He [Winston Peters] may want to corral his MPs for fear of that they may have an independent thought, but the Green MPs value each others' right to disagree and feel no need to be kept in line by the party leadership.”

The Electoral Integrity Amendment Bill effectively removes one of the last, and most important sets of checks and balances on the power of Parliament and the Executive branch. Despite the claims of its small handful of supporters, it is not genuinely interested in maintaining the proportionality of Parliament, failing to address any of the far more likely events that would change that proportionality. Instead, it explicitly seeks to interfere with the rights and freedoms of MPs through giving party leaders a tool through which to threaten MPs who disagree or dissent too much with sacking, and it undermines the integrity of our electoral and Parliamentary systems by creating two tiers of MPs with different protections and resources.

It is for these reasons that I make this submission in strong opposition to what is both a poorly written piece of legislation, and a disturbing attack on some of the fundamental pillars of our democratic system.