David Farrar: Which David is right?

One of the “safeguards” in the Electoral Integrity (waka jumping) Act is that a party leader needs the support of two thirds of their MPs to expel an MP from Parliament. S55D(c) of the Electoral Act says that a statement by the leader must:

state that, after consideration of the conduct of the member and his or her response (if any) by the parliamentary members of the political party for which the member was elected, the parliamentary leader of that party confirms that at least two-thirds of the parliamentary members of that party agree that written notice should be given by the parliamentary leader

So you need two-thirds of MPs in that party to agree. But does that include the MPs they are trying to get rid of? What is the definition of a “parliamentary member of a party”.

The Electoral Act doesn’t define it but S55A says the following:

• Every MP is a parliamentary member of a political party unless they were elected as an independent
• Their seat becomes vacant if they cease to be a parliamentary member of the political party for which the MP was elected, which only happens once a formal notice is delivered to the Speaker that complies with S55D

So my reading of this is that until a notice has been delivered, you are still a parliamentary member of the party for the purposes of the Electoral Act, so you count towards the two thirds majority needed.

This is important for Te Pati Maori, as if you could the two MPs expelled from membership towards the requirement, then they need four out of six MPs in favour – and it appears they only have three as Kaipara appears to be with them.

But if you don’t need them for the requirement, then you only need three out of four remaining MPs, and they may have that.

Now I was very confident my interpretation was correct. In fact I even told a reporter they had it wrong when they said TPM only needs three MPs, not four, to expel the other two from Parliament. But an article by Audrey Young quotes the Clerk of the House saying different:

The question is whether expulsion from Parliament would require two-thirds of six MPs, the number elected in 2023, or two-thirds of four MPs, the current number in the caucus. If it is the former, the co-leaders would need to get the agreement of two others, presumably Kaipara and Maipi-Clarke. But if it is four MPs, they need the agreement of only one other.

The Clerk of the House, David Wilson, told me this morning that it appears the two expelled MPs would not be included in the count.

He said that part of the current legislation had never been tested in court.

“However, the advice to the select committee that considered the legislation in 2018 was that once a member has been treated as an independent member by the House (ie the Speaker makes a statement to that effect in the House) the member is not treated as a parliamentary member of the party for the purpose of the act and therefore would not be part of the two-thirds of parliamentary members needed for the purposes of s 55D(c).”

It also appeared to have been the Supreme Court’s view in the Donna Awatere Huata case under the earlier incarnation of the legislation.

“So, it appears that s 55D(c) would not require the two expelled members to be included in the two-thirds majority of parliamentary members.”

Now when it comes to issues around Parliament, I would go with what the Clerk of the House says, over my own reckons around 99 times out of 100. I have huge regard for the Clerk.

But I’m not convinced I am wrong in this case. I have read the Huata case and it is true that they said Awatere-Huata was no longer a parliamentary member of ACT. But their focus was on whether ACT were able to use the waka jumping law against her, and not on whether for the purposes of the two thirds majority you include her or not. To me the Electoral Act is quite clear that you are a member of your parliamentary party until such time as the formal letter is filed with the Speaker.

A stronger argument is the advice to the select committee in 2018. The Ministry of Justice did say that if a party had expelled an MP who is in a caucus of two, then the remaining MP can get them expelled from Parliament. If it went to court, this could signify that the intent of the law was that the two thirds majority would exclude the MPs who had been expelled from the party.

However I still think this conflicts with the wording of the Act, and advice from the Ministry of Justice is not as persuasive as say a speech in Hansard about the intent of the law from an actual Minister or MP.

We may find out in time. If TPM do try to expel from Parliament the MPs for Te Tai Tokerau and Te Tai Tonga with fewer than four MPs in favour, then the Speaker will have to rule on how to interpret the law. I would expect the Speaker would favour the view of the Clerk.

It is very possible though that one of the two MPs would seek a judicial review of the statement under S55D before it gets submitted to the Speaker, in which case the High Court will rule on it.

If it turns out that the two thirds majority needed doesn’t include the MPs the party its trying to expel, then it shows the law is even more dangerous than thought.

Under this interpretation, you could have a party of say 12 MPs. Let’s say 10 MPs decide they have no confidence in the leader. However the leader has a majority of the party’s ruling body. The leader could get those 10 MPs expelled from the party, and then the two remaining MPs could vote to expel those 10 MPs from Parliament. If they were List MPs, then their spots would be taken by the next on the list.

This makes control of the ruling body incredibly vital. You no longer need a majority in caucus, if you can get the ruling body to expel MPs from the party, and then from Parliament.

To a degree this is what is happening in TPM. There is no dispute over policy or principle. The Tamihere faction thought one or both MPs might challenge for the leadership, and hence got them expelled from the party before they could challenge. And now they might be able to get them expelled from Parliament also. They could even pressure the remaining TPM MPs to vote to expel them from Parliament, by threatening to expel them also if they don’t comply.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders