Keith Locke’s submission to the NZ Parliament on the Electoral (Integrity) Amendment Bill

[As presented in person to the Justice Select Committee, 30 April 2018]


I am strongly opposed to this Bill, and I urge the Select Committee to reject it. The Bill violates the right of Members of Parliament to free speech and the freedom of political association. These are fundamental human rights guaranteed in the New Zealand Bill of Rights.

The Bill violates the right of free speech by allowing for MPs to be expelled from Parliament as a consequence of speaking or voting differently from their party caucus and subsequently being excluded from that party caucus. It violates freedom of association by expelling an MP from Parliament for voluntarily ceasing his or her membership of a parliamentary party, or transferring his or her loyalty to another party.

I have long opposed such legislation, beginning on 22 October 1997, when I had an opinion piece published in the New Zealand Herald criticising plans for such a Bill by then Labour MP Michael Cullen. As a Green MP I spoke in Parliament against the 2001 and 2005 versions of an Electoral (Integrity) Amendment Bill. More recently, on 10 January 2018, I had another opinion piece, criticising the current Bill, published in the New Zealand Herald.

It should be noted that the 2001 and 2005 versions of the Bill were virtually identical to the current Bill, except for the addition in the current Bill of a general statement that party rules have to be adhered to. Historically the Green Party has been strongly opposed to such Bills, with Green co-leader Rod Donald once quoted as calling the 2001 Bill, “the most draconian, obnoxious, anti-democratic, insulting legislation ever inflicted on this Parliament.” [New Zealand Herald, 8 October 2004].

I repeat what I said in Parliament on 18 December 2001, that this Bill should not be named an Electoral (Integrity) Amendment Bill because it has nothing to do with personal integrity. I said it should be called a Party Conformity Bill. It turns MPs into what Rod Donald called “party robots” in one of his speeches.

The aim of the current Bill is quite wrong. Clause 5 describes its purpose as to “enhance the maintenance of proportionality of political party representation in Parliament as determined by the electors.”

Legal sanctions to preserve party proportionality between elections limit the freedom and range of political debate. Trying to freeze party alignments through the three years between elections does, to some degree, limit the independence of MPs, what they can say, their openness to new ideas, and their willingness to embrace change. Over the three years of a parliamentary term MPs can change, parties can change, the electorate can change, and new and unexpected political challenges do arise.

Such legislation as this makes nonsense of what MPs are trying to do every day. In the Chamber and Select Committees MPs are trying to convince those in other parties to change their mind on one issue or another. If they succeed in convincing another MP to change his or her mind, and then that MP then speaks out or votes accordingly, and then that MP gets expelled from his or her party’s caucus, under this Electoral (Integrity) Amendment Bill the MPan would then be expelled from Parliament! Preventing an MP from changing his or her mind and acting on it is so fundamentally undemocratic. Any Greens who, mistakenly, support this Bill should remember that in 2013 the lone Green MP in the Canadian federal parliament, Elizabeth May, convinced New Democrat MP Bruce Hyer to join the Greens mid-term. If Canada had had a party-hopping law Bruce Hyer would have been kicked out of Parliament. That would have been a travesty. New Zealand likes to be seen as at the forefront of progressive change, yet if this Bill passes we will become the least democratic Western country in this respect. No other Western nation has such oppressive restraint on MPs’ freedom of speech and association. In fact, Germany has a constitutional provision preventing the passage of legislation restricting the right of an MP to act according to his or her conscience.

Disruption of party proportionality between elections can be, and often is, a motor for political change. Often it is a result of parties, when in government, veering more to the right than their voters (and some of their MPs) thought they would.

Here are some examples:
1989. Labour MP Jim Anderton is expelled from Labour’s caucus for opposing the sale of the BNZ. [Under the party hopping bill he would have been expelled from Parliament and we probably wouldn’t have had NewLabour, the Alliance, or a successful MMP referendum.]
1992. National MPs Hamish McIntyre and Gilbert Myles leave National over its post-election Rogernomics (labelled Ruthenasia) and set up the Liberal Party, which then joins the Alliance.
1993: National MP Winston Peters leaves National criticising its right wing social and economic policies and later sets up NZ First.
1996: National MPs Michael Laws and Peter McCardle leave National for NZ First.
1997: The Greens withdraw from the Alliance to independently pursue and overall more progressive agenda. Alliance list MPs (and Green co-leaders) Jeanette Fitzsimons and Rod Donald remain Alliance MPs, but if there had been a party hopping bill there might well have been a move by the Alliance leadership to exclude them from the Alliance caucus and eject them from Parliament. If that had been successful the Greens wouldn’t have reached 5% in the 1999 election.
1998: NZ First MP Neil Kirton leaves NZ First to become an independent MP following his criticisms of the National/NZ First coalitions conservative political direction, particularly on health policy.
2002: Alliance MPs Jim Anderton and Matt Robson move to set up the Jim Anderton Progressive Party well before the election.
2004: Labour MP Tariana Turia leaves Labour over what she saw as its betrayal of its Maori voters through Foreshore and Seabed Bill, and sets up the Maori Party.
2011: Maori Party MP Hone Harawira leaves the Maori Party, largely over its accommodation with National, and sets up the Mana Party.

Note that all the smaller parties that have won seats in MMP Parliaments (NZ First, the Greens, ACT, United Future, the Progressive Party, the Maori Party and Mana) were led by MPs who had previously represented another party (or in the Greens case a coalition of parties, the Alliance). Of those twelve MPs named above only three went to a by-election after their resignation – as required by the current Bill – and of course list MPs like Rod Donald, Jeanette Fitzsimons, Matt Robson and Neil Kirton could not. Green MPs, when determining their vote on this Bill, would do well to note that the Greens might never have made it into Parliament if the Alliance leadership had applied party hopping legislation to Rod Donald and Jeanette Fitzsimons in 1997/98.

Some have argued that the Bill is acceptable because it allows time for dissenting MPs to answer the charges against them (within 21 days), and also conduct an appeal in the Courts. However, such a course runs up against the constitutional need for Parliament and the Courts to operate independently of each other. In addition, the Courts are hardly equipped to work out who is right or wrong in inner-party disputes. It is often hard enough for fairly informed party members to determine this.

Some have argued amendments in the Select Committee might make the Bill more acceptable, but I can’t see how they could. It has been suggested that an expiry date be added to the Bill, as happened to the 2001 version of the Bill. However, an expiry date doesn’t make a very bad Bill, challenging basic freedoms, any more acceptable. Others have argued that the Bills application could be limited, so it didn’t apply to certain parties. However, it would be very odd, and hardly principled, for a party to vote for a Bill, with a proviso that it didn’t apply to that party, either through something added to the Bill, or something added to that party’s rules.