Legal Beagle by Graeme Edgeler

We agree on one thing: statute law does not cover all bases, and clarity is needed.

My inner purist thinks the Electoral Act should be amended to prohibit an MP standing in a by-election; my inner pragmatist tells me this is unlikely to happen.

Before then, we all assume Winston Peters will resign. But Peters is not required to resign, and has said he may not.

I didn't hear it but Stuff seems to be reporting this morning that he said on Morning Report that he'd definitely resign:

The NZ First leader, who convincingly wrestled National's strong hold on the electorate by more than 4000 votes, told Radio NZ's Morning Report that there was never a question that he would resign as a list MP.

"Of course I'll resign, I don't know why it was ever a material question."

The House has no power to make a member’s seat become vacant by expelling the member ... from membership of the House.

But in your scenario, the House would not be "expelling the member". Peters would remain in the House (as MP for Northland). It's just he'd be joined by another NZ First MP (from the party list). So I don't think that s.23 gives quite as definitive an answer to the question as you suggest.

Note that s.23 doesn't say "the only way a vacancy in the House can occur is through s.55 of the Electoral Act." Rather, it simply rules out one particular way in which a vacancy may have been able to occur - through the expulsion of a member .

Anyway, the point is completely moot. There is zero chance that David Carter would send this to the Privileges Committee.

Winston Peters has confirmed that he'll resign from the NZ First list.

if he was smart he would resign the northland seat and keep the list seat , then northland could have another by-election and we might get offered personal jet packs and gold plated bridges ....

Surely you jest? NZF would be (justifiably) spanked by the electorate for pulling a stunt like that.

yes sorry it wasn't serious advice ...

The 2012 Electoral Commission review report is worth looking at - http://www.elections.org.nz/sites/default/files/bulk-upload/documents/Final_Report_2012_Review_of_MMP.pdf
page 41, pars 5.6 to 5.8. This does not in any way resolve the technical argument but does suggest flexibility is favoured rather than working to the tyranny of party proportionality determined at the previous general election.

Can I just say, I'm super happy about all this. Doesn't seem to be another place to drop comment here, so this will do.

0: Minority government, WOOOOOOOOOOOOOT.

1: The centre-left seems to have sorted out getting people seats, re Te Tai Tokerau and Northland reciprocation.

2: Holy shit, National lost Northland. 52% fell to 40%, a 12 point shift in six months is really very big. That would be a massive landslide to the left in a real election.

2a: Or could it be said that a good many National voters don't actually want a majority National government, and were more than slightly concerned about having got one?

3: The porkbarrel bullshit actually cost them votes. Bravo the good people of Northland, bravo. Three cheers for that.

4: That awful fucking dread of these idiots having completely free reign is lessened by the fact they at least have to con Peter Dunne again, and he does seem to make them slightly more prudent about being in government. Small mercies.

5: Dunedin Hospital is going to have it's food trucked in every day from Auckland. I feel like I should attach a map of NZ for whoever made that decision, because those two places are at opposite ends of it and the place is really quite long in that direction. Also, roads not open all the way rather a lot, Cook Strait in the middle. That's not about Northland, but it is impossibly insane and I haven't seen it here, far too stupid a story for April fools.

Like, there's a law somewhere made that happen, compulsory contracting out and so on, turns out all the transition costs will be covered by the Hospital, so it costs them more money, naturally. I'm not sure the new balance of power in the Beehive will help, but as I say, small mercies to maybe save us from worse madness.

Note that s.23 doesn't say "the only way a vacancy in the House can occur is through s.55 of the Electoral Act." Rather, it simply rules out one particular way in which a vacancy may have been able to occur - through the expulsion of a member .

It does use the words "Members’ seats become vacant only as provided in Electoral Act 1993". Heading, I concede, but we can use those now. It's a strong point for the proposition that Parliament does not consider there are other ways a seat could become vacant. The idea that there are other means by which is seat could become vacant is so outlandish, that they don't even need to pass a law making that clear.

Winston is a proto-Muldoonist – this was not a win for the left wing. The fact that in some quarters it is seen as such is a sign of how far right Roger Douglas and 30 years of governments chipping away at workers’ rights have taken us while eroding recognition of the changes a true left-wing government would bring.

It does use the words “Members’ seats become vacant only as provided in Electoral Act 1993”.

True. But if the Speaker/Privileges Committee were to say that Peters being elected as member for Northland has vacated his list seat, it would be by virtue of the Electoral Act ... wouldn't it? By implication, to be sure, but it wouldn't be a claim of composition privilege (which is what s.23 is intended to address).

Because the Electoral Act provides for Peters to become an electorate MP, an MP can't effectively hold two seats (where is that stipulated, standing orders?) and so his list seat is vacant?

@Rich,

Something like that. It may or may not be a good legal argument, but I don't think s.23 precludes it in the way Graeme suggests.

My inner purist thinks the Electoral Act should be amended to prohibit an MP standing in a by-election; my inner pragmatist tells me this is unlikely to happen.

I see there's a whole 'nother post on this, so I've moved my response there.

yes I am struggling with the idea Winston is a progressive...but maybe I am becoming more radical with old age ...

I don't give a crap about Winston, eh. National just lost a seat and have to play nice with some centrist parties now (authoritarian and reactionary ones, yes, but much less so than National themselves). Which means they can only be as crazy as they were in 2011-2014 rather than the last six months.

That's an important difference. Peter Dunne is a deeply flawed person, aren't we all, but it's better if National have to get him on board because he sends more of their crazy to select committee and lets actual experts at it before it becomes law. That matters.

And if Labour had to help Winston get a seat for that to happen, then good on them, it's a good sign for their future ability to get on an form a government, which will probably be a minority one and need votes from people like Winston now and then (dude desperately needs a successor).

Nothing's going to give us a Green/Mana government any time in my life, but one has to accept that there's a range of things between the best case and the worst case, and better is better, even if just a little. A Labour minority will do just fine, really, considering how people actually vote.

(dude desperately needs a successor)

..an 'hair apparent' perhaps?

Well said Tussock,( I think anyway). Interestingly Winston, commenting on Mana said he gave his heads up to Kelvin in Te Tai Tokerau because Hone went with Dotcom. He didn't seem to have any other reason thus suggesting NZFirst can work with Mana and interestingly also , Rueben Taipari Porter had a great contribution at a meet the candidates afternoon at Swamp Palace. He got great applause, which was nice to see from many Farmers.
As for successor, Winston said if he got voted in he would continue to represent the seat in '17 if wanted but I suspect that Ron Mark will be the next to lead the Party and Winston could sit back and concentrate on Northland. Still , it seems relatively new to say an MP is too old, we see National refresh MPs as they get older but not so much other Parties and seeing as Winston gets the Grey vote ,he may just grow older in the house . It was great to see Labour applaud him in the House yesterday. The opposition looked cohesive.