Electoral (Integrity) Amendment Acts

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The Electoral (Integrity) Amendment Acts are two Acts of Parliament by the New Zealand Parliament which force the expulsion of members of the New Zealand Parliament who have resigned from or been expelled from the political party for which they were elected. Two such Acts have been passed: the Electoral (Integrity) Amendment Act 2001 (see below), which expired in 2005, and the Electoral (Integrity) Amendment Act 2018 (see below), which remains in force.

The New Zealand Parliament is elected using mixed-member proportional voting and the Electoral Act 1993 provides for the election of list members on behalf of registered political parties. Particularly in the 1990s, repeated instances of party switching led to criticisms that the proportionality of parliament as determined at a general election had been disturbed. The Electoral (Integrity) Amendment Acts were therefore attempts by the legislature to control its members' affiliations and votes in a way that conformed to the most recent election outcome. The New Zealand political parlance of "waka-jumping" has given rise to the colloquial description of the Acts as the "waka-jumping laws."[1]

The Acts operate differently depending on whether the expelled member represents an electoral district or if they were elected on a party list. The expulsion of an electorate member triggers a by-election; expelled list members are simply replaced by the next available candidate from their party list. Only two members, Tariana Turia and Donna Awatere Huata, have been subject to the provisions in the Acts, both in 2004.

Legislative features[edit]

The current law, the Electoral (Integrity) Amendment Act 2018, inserted six new clauses into the Electoral Act 1993. Section 55A states that the seat of a Member of Parliament (MP) becomes vacant when one of the following scenarios occurs:

  • If they cease to be a parliamentary member of the political party for which they were elected.
  • If the MP delivers a written notice confirming that they have resigned their parliamentary membership of the party for which they were elected, or if they wish to stand in Parliament as an independent MP or a member of another political party. This rule does not apply to MPs elected as independent members.
  • If the defecting MP's parliamentary party leader delivers a notice confirming their resignation or expulsion to the Speaker of the New Zealand House of Representatives.[2][3][4] At least two-thirds of the party caucus must agree to the notice being given.

The provisions of the Electoral Act 1993 which concern vacancies apply. Electorate MPs are replaced through a by-election (section 129). List MPs are replaced by the first available member on their original party's list (section 134).

The two Electoral (Integrity) Amendment Acts feature some minor drafting differences. In addition, the 2001 Act included a sunset clause so that it would automatically expire at the 2005 general election. Such a clause was not included in the current version of the legislation.

Electoral (Integrity) Amendment Act 2001[edit]

Background[edit]

Electoral (Integrity) Amendment Act 2001
New Zealand Parliament
Royal assent21 December 2001[5]
Legislative history
Introduced byMargaret Wilson[5]
Introduced22 December 1999
First reading18 December 2001[5]
Second reading18 December 2001[5]
Committee stage18 December 2001[5]
Third reading18 December 2001[5]
Status: Expired

Since New Zealand adopted proportional representation ahead of its 1996 general election, party switching (or waka-jumping) had been criticised for disturbing the proportionality of parliament as determined at a general election. Previously, party dissidents had simply served as independents. However, in the 44th Parliament (from 1993 to 1996) and 45th Parliament (1996 to 1999), 22 MPs defected to other parties.[6] The Alliance, a party which had been formed by Jim Anderton's defection from Labour to NewLabour in 1989 and had been disadvantaged by the defection of Alamein Kopu in 1997, supported tighter controls on party switching. The Labour Party was also in favour. Deputy leader Michael Cullen introduced legislation to forcibly expel party switching members in October 1997, but a 5–5 split on the electoral law committee prevented the bill from progressing further.[7][8]

The two parties jointly campaigned at the 1999 election for tighter controls on party switching which were soon progressed by the new Labour–Alliance coalition government. In the 1999 Speech from the Throne, the Governor-General announced on behalf of the new government:

My government recognises that there is deep public concern with a number of aspects of the operations of our political system in recent years. In particular, my government believes that the public is not prepared to countenance any repetition of the level of defection by Members of Parliament from their parties which has occurred in the last two parliaments. Accordingly, legislation will be introduced to provide that, for this and the next parliament at least, such a practice will be outlawed. Members of Parliament will, therefore, be reminded of the obligations they have to the people of New Zealand when they seek and gain election under the banner of a political party. —Michael Hardie Boys, Speech from the Throne (1999)[9]

Legislative history[edit]

Deputy prime minister Jim Anderton was a leading figure in the development of the Electoral (Integrity) Amendment Act 2001.

The described legislation—the Electoral (Integrity) Amendment Bill—was introduced by associate justice minister Margaret Wilson the next day, 22 December 1999, and sent to the justice and electoral committee in a 64–55 vote. One Labour member was absent. It was the first bill debated in the new parliament and her speech on the bill was Wilson's first given as a newly elected MP. Labour, Alliance, New Zealand First, and United members were in support, while National, ACT, and Green members were opposed.[10] Speaking against the bill, National MP Simon Upton acknowledged the bill's attempt to give greater weight to parliamentary proportionality over other considerations but stated: "that is, of course, not an absolute principle. The 5 percent threshold, for one, and the prospect of a by-election, for another, mean that proportionality is compromised... We have to weigh [proportionality] up against some other principles [such as] the importance of allowing political parties to evolve and allowing electoral systems to evolve [and] the freedom of speech and conscience."[10]: 78  Anderton, now deputy prime minister, addressed dissonance between his departure from Labour while remaining in parliament and his support for legislation that triggered compulsory expulsions, saying his was "a decision made in a totally different constitutional environment" to Kopu's.[10]: 81 

The "teeth" of the bill and its ability to actually expel dissident MPs was debated. Political journalist John Armstrong noted that because, under the proposal at the time, members must write to the Speaker giving notice of their resignation from their parties that members like Kopu could avoid expulsion simply by refusing to do that.[11] Legal advice from the solicitor-general John McGrath said trying to strengthen the bill to secure non-voluntary resignations might cause it to no longer be consistent with the New Zealand Bill of Rights Act 1990.[11] The government worked with New Zealand First, which had also been subject to many defections in the previous parliament, to address these shortcomings and secure that party's ongoing support.[12][13] The outcome was that party leaders would be able to write to the Speaker with the support of two-thirds of the party's caucus, forcing the expulsion of a member.[13]

The bill began its second reading on 9 November 2000, before the deal with New Zealand First had been completed, when National whip Gerry Brownlee won the consent of Parliament to have it promoted up the order paper.[14]: 609–610  The second reading was completed under urgency on 20 December 2001 (officially recorded as 18 December in Hansard); the committee stage (wherein the amendment negotiated with New Zealand First was officially agreed) and third reading were held immediately afterwards.[15] Speaking in the debate, Green co-leader Rod Donald addressed New Zealand First leader Winston Peters' apparent change of heart by quoting one of Peters' old press releases: in 1996 he had said "Members of Parliament joining New Zealand First or any other political party without resigning and seeking a new mandate is consistent with constitutional precedent. MPs 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."[16]

The final vote was 64–54. Two ACT members were absent and the sole United member Peter Dunne withdrew his earlier support.[15]: 999 

Māori Party co-founder Tariana Turia was a casualty of the Electoral (Integrity) Amendment Act 2001.

Implementation[edit]

The Electoral (Integrity) Amendment Act 2001 came into force on 22 December 2001, the two-year anniversary of its introduction and the day after it received the Royal assent.[5] Despite the strengthening of the bill in the committee stage, almost immediately MPs found ways to work around its provisions. The Alliance fractured in 2002 over New Zealand's involvement in the War in Afghanistan and Anderton formed a new party, the Progressive Party.[17] To avoid triggering the legislation he had endorsed, Anderton nominally remained leader of the Alliance within parliament even while campaining as the leader of the Progressives; he struck a deal with Laila Harré, who led Alliance members who did not follow him, wherein she would not "publicly lay claim" to the Alliance leadership. National leader Bill English called the arrangement deceitful; Anderton denied accusations of waka-jumping because he still supported the government.[18] Prime minister Helen Clark responded by calling an early election.[19]

In the subsequent term, the Act was eventually used to expel Labour MP Tariana Turia, who subsequently became one of the founders of the Māori Party and won back her electorate in the required by-election, which no other significant party contested.[20] ACT attempted to expel list MP Donna Awatere Huata in 2003; after a 10-month legal battle the Supreme Court declared in 2004 Huata had "distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election" and permitted her expulsion to proceed.[21][22][23][24] It was reported that National threatened Maurice Williamson with the Act in 2002 and 2003, but it was conceded that this was unlikely in practice.[25][26]

Expiration and attempted reinstatement[edit]

The Act expired at the 2005 New Zealand general election as its sunset clause came into effect.[27] The reintroduction of the Act was part of the confidence and supply agreement formed between Labour and New Zealand First after that election.[28] A replacement Electoral (Integrity) Amendment Bill was moved on behalf of the deputy prime minister Michael Cullen on 6 December 2005; it was sent to the justice and electoral committee in a 61–60 vote. Labour, New Zealand First, United Future and the Progressives were in favour; National, the Green Party, the Māori Party and ACT were opposed.[29] The new bill was proposed without an expiry date.[30] Eventually United Future removed its support for the bill and the attempt to reinstate the Act failed.[31][32]

While no electoral integrity laws were in place, party switching resumed, but less frequently than the pre-1999 period. List MP Gordon Copeland, who had been party of the government-supporting United Future sat as an independent from 2007 and began supporting the opposition National Party.[33] Te Tai Tokerau MP Hone Harawira resigned from the Māori Party and Parliament in 2011, forcing and winning a by-election under the new Mana Movement.[34] There were also three expulsions: Taito Phillip Field (2007)[35] and Chris Carter (2010)[36] were expelled from Labour and Brendan Horan (2012)[37] from New Zealand First. All of the expelled MPs remained in Parliament until the end, or near-end in Carter's case, of their terms in Parliament; Field and Horan unsuccessfully sought re-election.

Electoral (Integrity) Amendment 2018[edit]

Electoral (Integrity) Amendment Act 2018
New Zealand Parliament
Royal assent3 October 2018[38]
Legislative history
Introduced byAndrew Little[38]
First reading30 January 2018[38]
Second reading2 August 2018[38]
Third reading27 September 2018[38]
Status: Current legislation

First reading[edit]

The Bill's sponsor Andrew Little

On 30 January 2018, the Justice Minister Andrew Little introduced the Electoral Integrity Amendment Bill into Parliament. During the first reading, several National Party MPs including Amy Adams, Judith Collins, and Nick Smith opposed the bill, claiming that it would favor party apparatchiks over MPs' electorates and stifle democracy. The bill was defended by several government MPs including Labour MP Clare Curran, New Zealand First MP Darroch Ball and Green MP Golriz Ghahraman, who argued that it would preserve democracy by preventing party switching and upholding the proportionality of Parliament determined by electors. The Bill pass its first readings along party lines with 63 in favour (Labour, New Zealand First, and the Greens) and 57 opposed (National and the ACT Party). The bill was then referred to the Justice select committee.[39]

Select committee[edit]

Former Green co-leader Jeanette Fitzsimons opposed the Electoral (Integrity) Amendment Act 2018

The Justice Committee received 55 submissions by early July 2018. Nine submitters supported the Electoral Integrity Amendment Bill's intentions but thought it should be limited to list MPs. Another submitter supported the Bill but recommended amendments. Six submitters including the Clerk of the New Zealand House of Representatives, Benjamin Molineux, the Legislation Design and Advisory Committee, Professor Jack Vowles, Alec van Helsdingen, and Philip Evans suggested amendments to the legislation.[40]

The remaining 40 submitters including former National MP Lockwood Smith, blogger David Farrar, former Green MP Keith Locke, Annette Hamblett, activist Maire Leadbeater, and the National Party opposed the Bill on the grounds that it constricted the freedom of MPs to dissent from their parties and the executive. The New Zealand Human Rights Commission and the New Zealand Law Society expressed concerns that the Bill clashed with the New Zealand Bill of Rights Act 1990's provisions on free speech and association.[40] Former Green co-leader Jeanette Fitzsimons also expressed opposition to the Bill, stating that it "offends the freedom of conscience, freedom of speech, and freedom of association. Integrity cannot be legislated for. It is a matter of conscience and judgment."[3]

Second reading[edit]

The Bill passed its second reading on 2 August 2018 by a margin of 63 to 57. Labour, New Zealand First and the Greens supported the Bill while the National and ACT parties opposed it.[41]

The Bill was then submitted before a Committee of the whole House on 26 September 2018.[38]

Third reading[edit]

NZ First leader Winston Peters secured the "waka jumping" bill as part of coalition negotiations with Labour

The Bill passed its third and final reading on 27 September 2018 by a margin of 63 to 57. Labour, New Zealand First and the Greens supported the Bill while the National and ACT parties opposed it.[42] The Bill was passed as part of a coalition agreement between Labour, New Zealand First and the Greens. Though the Greens opposed the Bill, they reluctantly supported it due to the terms of their confidence and supply agreement with Labour. New Zealand First' leader Winston Peters had secured the bill during coalition negotiations with Labour following the 2017 New Zealand general election.[3]

The Bill's sponsor Andrew Little welcomed the passage of the bill, arguing that only voters should determine the parties represented in Parliament. National MP Nick Smith vowed to repeal the law if National was elected into government and attacked New Zealand First leader Winston Peters as "master-puppeteer making fools of us and a joke of this Parliament". Peters countered that MPs disagreeing with their caucus should resign and "put it on the line in a by-election." Meanwhile, Green Party leader James Shaw described the Bill as the "most difficult decision" that the party had taken over the past year but accepted it as part of their confidence and supply agreement with Labour.[4]

Repeal attempt[edit]

On 29 July 2020, National MP David Carter submitted a member's bill called the Electoral (Integrity Repeal) Amendment Bill into Parliament, seeking to repeal the Electoral (Integrity) Amendment Act 2018.[43] The Bill passed its first reading by 64 to 55 votes; with National, the Greens, ACT, and independent MP Jami-Lee Ross voting in favor and Labour and New Zealand First voting against. The Electoral (Integrity Repeal) Amendment Bill was then referred to the justice select committee.[44]

The Green Party defied other government parties to support the repeal bill, infuriating Deputy Prime Minister Winston Peters who denounced the Greens as "untrustworthy" coalition partners. The Greens had previously supported the 2018 legislation due to their support agreement with Labour despite their opposition to the law. The Green's electoral spokesperson Chlöe Swarbrick defended her party's decision, stating that since the Greens had voted in favour of the bill the first time, they were free to revert to their long-standing position of opposing "waka jumping" laws.[45]

Following the 2020 New Zealand general election, there was a second reading of the Electoral (Integrity Repeal) Amendment Bill was held on 12 May 2021. Since David Carter had retired at the 2020 election,[46] National MP Nick Smith sponsored the bill during its second reading.[47] The second reading was deferred until 9 June 2021. The repeal bill was defeated by 65 (Labour) to 55 (National, Greens, ACT, and the Māori Party).[48]

Notes and references[edit]

  1. ^ Simmons, Geoff (27 July 2018). "'Waka jumping' is the wrong name for this junk law. Here's five better options". The Spinoff. Archived from the original on 1 March 2021. Retrieved 12 June 2021.
  2. ^ "Electoral (Integrity) Amendment Bill". Legislation New Zealand. Parliamentary Counsel Office. Archived from the original on 18 May 2021. Retrieved 12 June 2021.
  3. ^ a b c "Waka jumping bill finally passes, with begrudging support of Green Party". Stuff. 27 September 2018. Archived from the original on 16 March 2021. Retrieved 2 August 2020.
  4. ^ a b McCulloch, Craig (27 September 2018). "Waka-jumping bill passes into law after heated debate". Radio New Zealand. Archived from the original on 25 November 2020. Retrieved 24 July 2020.
  5. ^ a b c d e f g "Electoral (Integrity) Amendment Act 2001" (PDF). Retrieved 9 May 2024.
  6. ^ "Electoral (Integrity) Amendment Bill — First Reading". New Zealand Parliament. 6 December 2005. Archived from the original on 17 February 2019.
  7. ^ "Electoral (Party Registration) Bill". Parliamentary Debates (Hansard). Vol. 564. New Zealand Parliament: House of Representatives. 22 October 1997. p. 342–354.
  8. ^ "Electoral (Party Registration) Bill – Consideration of Report of Electoral Law Committee". Parliamentary Debates (Hansard). Vol. 569. New Zealand Parliament: House of Representatives. 17 June 1998 (sitting extended to 20 June 1998). p. 92–115. {{cite book}}: Check date values in: |date= (help)
  9. ^ "FULL TEXT: Speech From The Throne". Scoop News. 21 December 1999. Retrieved 8 May 2024.
  10. ^ a b c "Electoral (Integrity) Amendment Bill". Parliamentary Debates (Hansard). Vol. 581. New Zealand Parliament: House of Representatives. 22 December 1999. p. 75–106.
  11. ^ a b Armstrong, John (30 June 2000). "Party-hopping MPs safe under bill escape clause". NZ Herald. Retrieved 9 May 2024.
  12. ^ Young, Audrey (14 November 2000). "Tougher line on political defectors". NZ Herald. Retrieved 9 May 2024.
  13. ^ a b "New bill can make party hoppers quit". NZ Herald. 3 September 2001. Retrieved 9 May 2024.
  14. ^ "Sittings of the House; Electoral (Integrity) Amendment Bill". Parliamentary Debates (Hansard). Vol. 588. New Zealand Parliament: House of Representatives. 9 November 2000. p. 608–621.
  15. ^ a b "Electoral (Integrity) Amendment Bill". Parliamentary Debates (Hansard). Vol. 597. New Zealand Parliament: House of Representatives. 18 December 2001 (sitting extended to 20 December 2001). p. 905–999. {{cite book}}: Check date values in: |date= (help)
  16. ^ "Parliament hobbles the party-hoppers". NZ Herald. 9 May 2002. Retrieved 9 May 2024.
  17. ^ Geddis, Andrew (2002). "Party-hopping". New Zealand Law Journal: 137–138.
  18. ^ "Alliance together, but miles apart". NZ Herald. 16 April 2002. Retrieved 9 May 2024.
  19. ^ Martin, John (2004). The House: New Zealand's House of Representatives, 1854–2004. Palmerston North: Dunmore Press. p. 330. ISBN 0-86469-463-6.
  20. ^ Geddis, Andrew (11 January 2018). "Who controls the past now, controls the future". Pundit. Archived from the original on 15 February 2021. Retrieved 27 May 2017.
  21. ^ Richard William Prebble & others V Donna Awatere Huata, CIV 9/2004 (SC 2004).
  22. ^ "Prebble V Awatere Huata". Scoop News. 26 March 2024. Retrieved 9 May 2024.
  23. ^ Taylor, Kevin (18 November 2004). "Speaker set to kick out Awatere Huata". NZ Herald. Retrieved 9 May 2024.
  24. ^ Geddis, Andrew (21 October 2018). "Ross, Bridges and the party hopping law (updated for recent developments)". Pundit. Retrieved 9 May 2024.
  25. ^ "Zip it or face the boot, Williamson warned". NZ Herald. 13 September 2002. Retrieved 9 May 2024.
  26. ^ "Williamson exit could pave way for Maori MP". NZ Herald. 15 July 2003. Retrieved 9 May 2024.
  27. ^ Electoral (Integrity) Amendment Act 2001 (PDF) (105). 21 December 2001.
  28. ^ "Confidence and Supply Agreement with New Zealand First" (PDF). 17 October 2005. Retrieved 9 May 2024.
  29. ^ "Electoral (Integrity) Amendment Bill". New Zealand Parliament. Retrieved 9 May 2024.
  30. ^ "Shackling MPs who want to hop". NZ Herald. 8 November 2005. Retrieved 9 May 2024.
  31. ^ "Electoral (Integrity) Amendment Bill 3-1 (2005), Government Bill". New Zealand Legislation. Parliamentary Counsel Office. Archived from the original on 11 November 2020. Retrieved 24 May 2018.
  32. ^ "Business Statement". New Zealand Parliament. Retrieved 9 May 2024.
  33. ^ "Blow for Labour as Copeland switches support to National". NZ Herald. 14 June 2007. Retrieved 9 May 2024.
  34. ^ "Harawira to force by-election after launching new party". Otago Daily Times Online News. 2 May 2011. Retrieved 9 May 2024.
  35. ^ "John Armstrong: Defiant Field back in fray and ready to test Labour". NZ Herald. 23 February 2007. Retrieved 9 May 2024.
  36. ^ "Chris Carter ousted from Labour Party". NZ Herald. 11 October 2010. Retrieved 9 May 2024.
  37. ^ Trevett, Claire; Young, Audrey (4 December 2012). "NZ First kicks out Horan". NZ Herald. Retrieved 9 May 2024.
  38. ^ a b c d e f "Electoral (Integrity) Amendment Bill". New Zealand Parliament. Archived from the original on 2 August 2020. Retrieved 12 June 2021.
  39. ^ "Electoral Integrity Amendment Bill — First Reading". New Zealand Parliament. 30 January 2018. Archived from the original on 14 June 2021. Retrieved 14 June 2021.
  40. ^ a b "Electoral (Integrity) Amendment Bill – Departmental Report". New Zealand Parliament. 2 July 2018. Archived from the original on 15 June 2021. Retrieved 15 June 2021.
  41. ^ "Electoral (Integrity) Amendment Bill — Second Reading". New Zealand Parliament. 2 August 2018. Archived from the original on 10 June 2021. Retrieved 15 June 2021.
  42. ^ "Electoral (Integrity) Amendment Bill — Third Reading". New Zealand Parliament. 27 September 2018. Archived from the original on 15 June 2021. Retrieved 15 June 2021.
  43. ^ "Members' bills: Defying sad odds". Radio New Zealand. 2 July 2020. Archived from the original on 22 October 2020. Retrieved 2 August 2020.
  44. ^ "Electoral (Integrity Repeal) Amendment Bill — First Reading". New Zealand Parliament. 29 July 2020. Archived from the original on 13 August 2020. Retrieved 14 June 2021.
  45. ^ "Dead rat spat back up: Green Party vote to repeal waka jumping law with National, infuriating Winston Peters". Stuff. 29 July 2020. Archived from the original on 20 April 2021. Retrieved 2 August 2020.
  46. ^ New Zealand National Party (30 July 2020). "Waka-jumping Repeal Bill Passes First Reading". Scoop. Archived from the original on 31 March 2021. Retrieved 14 June 2021.
  47. ^ "Electoral (Integrity Repeal) Amendment Bill — Second Reading". New Zealand Parliament. 12 May 2021. Archived from the original on 14 June 2021. Retrieved 14 June 2021.
  48. ^ "Electoral (Integrity Repeal) Amendment Bill — Second Reading". New Zealand Parliament. 9 June 2021. Archived from the original on 14 June 2021. Retrieved 14 June 2021.

External links[edit]

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