David Carter's decision on Peter Dunne's status was just as wrong (and as right) as Jonathan Hunt's decision on Harry Duynhoven's.

What is all this fuss about Peter Dunne, Trevor Mallard, Winston Peters and David Carter, I hear you asking?

Oh, you weren't? Well, tough. I'm telling you anyway.

MPs who lead a political party in Parliament get given a bunch of extra money to help with that party's parliamentary duties, as well as other benefits like being able to sit on the Business Committee that decides how Parliament's work will be arranged. However, which MPs get to get that extra money and other benefits? Can any old MP simply declare themselves to be a "party leader", and so tap into it?

Well, not any more. The rules governing the recognition of parties for parliamentary purposes are contained in Standing Order 34(1):

Every political party registered under Part 4 of the Electoral Act 1993, and in whose interest a member was elected at the preceding general election or at any subsequent by-election, is entitled to be recognised as a party for parliamentary purposes.

That seems pretty determinative to me. To be recognised as a party for parliamentary purposes (and thus make your leader entitled to extra financial resources and other benefits in the House), you have to:

  •  be registered with the Electoral Commission (under Part 4 of the Electoral Act); and,
  • have had at least one member elected at an election.

As of about a week ago, United Future was no longer registered with the Electoral Commission because it had told the Commission it couldn't be certain it had the requisite 500 current financial members. Not being so registered means it fails to meet one of the limbs of the test set out in Standing Order 34(1). Hence, United Future cannot currently be recognised as "a party for parliamentary purposes", with the consequence for Peter Dunne under SO 34(4) that: "Any member who is not a member of a recognised party is treated as an Independent member for parliamentary purposes."

(There is an alternative route to becoming a recognised political party under SO 34(2), involving more than 6 MPs elected for another party breaking off and forming a new party ... but that party also needs to be registered with the Electoral Commission before being recognised. Therefore, it clearly doesn't apply to United Future on two counts.)

Now, there is a potential alternative reading of SO 34(1) (although it would be a stretch). That reading would be that so long as a party was registered with the Electoral Commission when it got an MP elected, it gets to become and remain a recognised party for parliamentary purposes irrespective of its registration status thereafter. In other words, all that matters is a party's registration status when first recognised as a party for parliamentary purposes.

However, this alternative (stretched) reading doesn't seem to be the one that Speaker David Carter has adopted. Instead, he seems to accept that current registration with the Electoral Commission is an ongoing requirement for being recognised as a party for parliamentary purposes. It's just that recognised parties can have a bit of leeway on the issue, such that if they cease to be registered, they get a kind of grace period to rectify the situation.

Now, that may be a neat, practical way to try and resolve the issue. After all, if United Future really can get itself re-registered in a few weeks time, then Peter Dunne will once again be able to be recognised as the leader of a recognised party and so reclaim his funding and other benefits. (I say this assuming that the "United Future" re-registered with the Commission would be treated as the same entity for which Peter Dunne was elected back in 2011!) So what's the use in "unrecognising" his party for a couple of months, only to then "re-recognise" it again? All that does is create some administrative hassle and confusion. And if it so happens that United Future cannot get registered with the Commission, thus meaning that it shouldn't have been continued to be recognised as a party for parliamentary purposes, any extra money that gets paid over to Peter Dunne can be clawed back from him. So it's a case of no harm, no foul.

However, there are a couple of obvious problems with Speaker Carter's decision. First of all, the Standing Order doesn't say anything about any "grace period" applying - so how do we know how long United Future has to get itself re-registered before losing its recognition. One month? Two? A year? As long as Speaker Carter decides is appropriate? All of which puts a pretty thick interpretative gloss on the apparently clear meaning of SO 34(1).

Second, there's the small matter of a National MP apparently inventing a new meaning for the Standing Order that just happens to operate for the benefit of an MP who offers his support on confidence and supply to the National Party. Now, I'm not saying that Speaker Carter really was motivated by the desire to help out a political ally - but let's just remember back to another occasion when the Speaker made a controversial call on procedure that had the incidental effect of doing so.

Back in 2003, Parliament's Privileges Committee found that Labour MP Harry Duynhoven accidentally had triggered a section in the Electoral Act that "vacated" his seat in the House. But rather than act to immediately declare that event to have occured (thus requiring Duynhoven to face a by-election), then Speaker (and Labour MP) Jonathan Hunt said he would wait until the House had an opportunity to debate the Privileges Committee report. Before which, the Labour-led majority passed legislation that retrospectively amended the Electoral Act, so that Duynhoven had not in fact vacated his seat and so didn't have to face a by-election.

Now, you can have differing views as to whether or not that particular law change was justified - but note how similar the incident is to the current one. And then recall the various stances taken by the players at the time:

National's deputy leader, Roger Sowry, told Parliament there was a danger the Speaker's role was being used by the Government.

"That causes me a great deal of concern and pain because I, for one, believe in the integrity of this place."

Which, it must be said, sounds a little bit like Trevor Mallard today. And we might also hear echoes of Speaker Carter in the response of his predecessor:

Under the sustained attack, Mr Hunt defended his role, and said he had acted completely properly.

"I am certainly not colluding with the Government on this issue, and I make that statement absolutely, absolutely."

He was entitled to defer taking action "for a short time" under byelection provisions of the Electoral Act and he would not delay a decision just to give the Government time to bring in a law change.

All of which makes this commentary a bit of an extension of my last post, the message of which was that there isn't all that much new under the sun when it comes to New Zealand politics.

But one last thing before I go. Labour has complained to the Auditor General about the decision to allow Peter Dunne to continue receiving funding as the leader of a party that has been recognised for parliamentary purposes. That complaint won't go anywhere. The legal entitlement to receive that money depends on what Standing Orders say about a party's status. And Standing Order 2 also says that when there is a dispute over the meaning of a Standing Order:

The Speaker (or other member presiding) is responsible for ruling whenever any question arises as to the interpretation or application of a Standing Order and for deciding cases not otherwise provided for.

Meaning that when Speaker Carter says United Future is recognised as a party for parliamentary purposes under Standing Orders, then it is recognised by Standing Orders as a party for parliamentary purposes. And that means its leader is, as a matter of law, entitled to get the extra funding. So there's nothing for the Auditor-General to bite on here.

Comments (27)

by Tim Watkin on June 06, 2013
Tim Watkin

It's that "and" that seems crucial. When I firsst read the standing order I thought 'ah well UF was registered... and it does have an MP and one with an electorate to represent at that'. But a second glance made it pretty clear that the "and" means the two things have to happening at the same time. Take one away and it doesn't matter if the other is being fulfilled. So how do you think Carter came to his conclusion when it seems so wrong? and what advice might he have taken, as he says he has?

by stuart munro on June 07, 2013
stuart munro

Only NZ MPs could be so self-aggrandising as to design a protocol defining someone as a party leader without requiring that they have other MPs to lead. Pitiful stuff.

by Chris de Lisle on June 07, 2013
Chris de Lisle

Couldn't the standing order be read to state the situation in which the Speaker cannot refuse to recognise a party, rather than defining the only situation in which he can recognise a party?

i.e. A party in this situation is entitled to recognition, but the Speaker can recognise other parties if he so wishes?

by Andrew Geddis on June 07, 2013
Andrew Geddis

@Tim,

It seems to be that Carter thinks the wording of SO 34(1) doesn't say what the Standing Orders Committee meant when making the new rule in 2011 ... that there was no thought given to what happens in this sort of situation. So he's tried to go all Solomon on us - without, perhaps, the requisite wisdom.

Graeme Edgeler has posted on this over at that niche blogsite he maintains with a group of other freaks and geeks. Just clear your browser history after visiting.

@Chris,

No. Recognition of parties under Standing Orders has legal consequences (i.e. it legally entitles you to money, etc). So either you qualify under SO 34, or you don't.

by mickysavage on June 07, 2013
mickysavage

@Andrew 

What about SO 34(4) which says "Any member who is not a member of a recognised party is treated as an Independent member for parliamentary purposes”?  The use of the word "is" reinforces the suggestion that the current status of the party is the relevant one.

You can stretch the language even further by suggesting that once recognised a party remains recognised for the term of Parliament but this stretches the meaning beyond any sense whereas there is an alternative interpretation which seems perfectly clear.

by Andrew Geddis on June 07, 2013
Andrew Geddis

@mickeysavage,

Not sure I follow that argument. I take SO 34(4) as being a catch-all for anyone not in a "recognised party" (under SO 34(1) or (2)) for any reason. So, it applies (primarily) to people like Brendan Horan or Chris Carter who've left/been ejected from their (still) recognised parties ... the question whether it applies to Dunne depends on the (independent) question of United Future's status under SO 34(1).

by Jane Beezle on June 07, 2013
Jane Beezle

A very interesting analysis. 

The appearance of political decision making by the Speaker, given their fundamental role in our denocratic system as independent Parliamentary referee, is a very poor situation. 

by Graeme Edgeler on June 07, 2013
Graeme Edgeler

We seem to agree on the most important issue - this is an either/or proposition, and there can be no grace period - either Dunne is entitled to funding until the next election, or he's not entitled to it now.

We have come to a different position on the tenability of the different interpretation, so I'm interested in your view on SO 34(3). First, would it be needed if your interpretation were correct? And second, does the existence of a rule which states one situation in which recognition ceases imply that other situations would be listed as well (similar to the discussion we've had over the right of the House to expel a member vs. s 55 of the Electoral Act).

by Andrew Geddis on June 07, 2013
Andrew Geddis

@Jane,

The problem is that Carter is damned if he does/damned if he doesn't! I mean, the Speaker can hardly adopt a rule saying "whenever there's an argument about what Standing Orders say, I'll do whatever is against the interests of my party so as to avoid claims of bias." So the best a Speaker can do is make what he/she thinks is the "right call", and then suck up the inevitable criticism.

(That said, the problem with the "right call" Carter has chosen here is that it seems to be entirely of his own making!)

@Graeme,

That's a good point. On my reading, SO 34(3) wouldn't be needed. But I guess the question is whether it is a "for the avoidance of doubt" provision intended to cover what was regarded as the most likely problem to arise (given the experiences of things like Mauri Pacific, etc), or literally the only way that any party that has been recognised for parliamentary purposes can be "unrecognised".

I think Phil Lyth's point on another thread is probably the right one - the Standing Orders Committee simply didn't think about the United Future situation at all. So trying to work out what SO 34 actually "intends" in this situation is probably a bit of a waste of time ... probably the better approach would be to argue what the "best outcome" would be. Which probably is what David Carter did - concluding that "if I let United Future sort this out with the Commission, then the immediate problem goes away and I can let the Standing Orders Committee work out what should happen in a future situation". And, of course, that sort of pragmatic, make-it-up-as-you-go reasoning is deeply unsatisfying to us lawyerly types!

by Raymond A Francis on June 07, 2013
Raymond A Francis

Sometimes when it comes to matters of law it is worth thinking about just what is being accomplished

So if Peter Dunne ceases to be the official leade of a party for a matter of a couple of weeks he will have to give up a little less than $12000 a week that is presently being paid to his workers

If it turns out he doesn't have and cannot prove he has a recognised party the money can be clawed back and of course no advertising money come the next election

So, not to pay the money in the meantime is only going to cause distress to his workers

Bit of a no brainer to my mind

by Phil Lyth on June 07, 2013
Phil Lyth

 Recognition of parties under Standing Orders has legal consequences (i.e. it legally entitles you to money, etc). So either you qualify under SO 34, or you don't.

Andrew,  have you or Graeme drilled down into the Speakers Directions which provide the legal entitlement to money? The form of words defining "party" arguably do not exactly match SO 34.

As well as the lawyerly interpretation clause at 2.4, I'd also invite you to consider the overview etc in Part 1, and the principles in 1.4 and 1.5.

 

 

by Tim Watkin on June 07, 2013
Tim Watkin

Graham, what makes you so sure there can be no grace period? It does seem practical, as Raymond suggests, to give Dunne some time to sort it out, rather than leave his staff unpaid for a few weeks.

The problem, it seems to me, is that he hasn't defined the length of that grace period. Surely if he's going to cut Dunne some slack he needs to say precisely how long he's got to get re-registered. Isn't that crucial if you're making up new rules?

by Graeme Edgeler on June 07, 2013
Graeme Edgeler

Graham, what makes you so sure there can be no grace period?

The rules provide funding for recognised parties. There is no provision for funding unrecognised parties, nor provision for parties that are not recognised, but may become so in the future.

To see whether some MP is entitled to funding, we must answer the question: is this party entitlted to be recognised? The question may not be give a clear answer, or you may reach the wrong answer, but only if the answer is yes, is there a legislative basis to pay them money.

Other areas where there are "grace periods" (e.g. the time between polling day, and the formal announcement of the result) have specific provisions allowing payment, even though, for example, at the last couple of elections, that included paying for flights etc. for a National MP who turned out not to have been elected (because of special votes going the way of the Greens, in 2011 Aaron Gilmore who had been in on the night missed out, with the same happening to Cam Calder in 2008).

by Graeme Edgeler on June 07, 2013
Graeme Edgeler

Andrew,  have you or Graeme drilled down into the Speakers Directions which provide the legal entitlement to money? The form of words defining "party" arguably do not exactly match SO 34.

I did note the possibility that the answers could differ, but am aware that McGee says recognition under standing orders is determinative, which is good enough for me absent a pretty strong argument.

by Jane Beezle on June 07, 2013
Jane Beezle

The reason the Speaker has chosen to "continue" recognition of United Future for an interim period is because if Peter Dunne loses his status as leader of the United Future party for parliamentary purposes and becomes an independent, there is no way back for him under Standing Order 34(2).  He will have to remain an independent for the remainder of the parliamentary term with the associated loss of privileges that entails. 

The interview with the Electoral Commissioner on Morning Report made it clear that he is treating the application for reregistration of United Future as a "fresh" registration under section 63 of the Electoral Act.  Standing Order 34 only provides limited ways for a party to be recognised in the middle of the parliamentary term.  Peter Dunne cannot take advantage of either of them and so unless recognition of his party "continues" while it is deregistered, he will lose money, speaking entitlements, his place on the business committee. 

It is a pragmatic decision made to protect a friendly vote.

 

by dave on June 07, 2013
dave

If Dunne's party was re-registered and classed as a newly registered party - with Dunne being treated as an Independant in the interim -  he wouldnt get the leaders funding again until the next election ( assuming he gets back in). That would seem somewhat more unfair than a grace period.

Standing Orders dont clearly encompass situations where registered parliamentary parties are deregistered for a short period - because probs, that wasnt expected when the SO's were written - or reviewed.

United Future is a recognised parliamentary party (even though the Electoral Comission has found out that it is not able to be curently  registered)  but only  if it gets registered reasonably quickly - a bit like a parent who smacks their kid will not get criminalised (  even if the police find out)  - provided they smack their kid lovingly and very lightly.

by Graeme Edgeler on June 07, 2013
Graeme Edgeler

The reason the Speaker has chosen to "continue" recognition of United Future for an interim period is because if Peter Dunne loses his status as leader of the United Future party for parliamentary purposes and becomes an independent, there is no way back for him under Standing Order 34(2)

That may be the reason, however:

1. it's not the reason the Speaker gave, and he has refused to release his advice.

2. I also don't think that is right. There's no reason a re-registered United Future wouldn't re-qualify under SO 34(1) if that interpretation of it applied, you don't need to go through SO 34(2).

by Graeme Edgeler on June 07, 2013
Graeme Edgeler

If Dunne's party was re-registered and classed as a newly registered party - with Dunne being treated as an Independant in the interim -  he wouldnt get the leaders funding again until the next election ( assuming he gets back in). That would seem somewhat more unfair than a grace period.

Why would you assume it would count as a newly registered party?

by dave on June 07, 2013
dave

I didnt assume - I  said "If". I just thought that if Dunne was treated as an independant in the interim, re-registration may be seen as newly registered.  But I *am* assuming Dunne will get back in if he decides to stand.

by Jane Beezle on June 07, 2013
Jane Beezle

Essentially the position is that in continuing to "recognise" a deregistered party, the Speaker is acting ultra vires Standing Order 34(1).  The Speaker has no power to recognise a deregistered party. There is however no appeal or review of his decision - as Andrew points out, his decision is final. 

You can argue the toss about "grace periods" and future recognition of "reregistered" parties, Graeme, but none of that is in the Standing Orders.  It is an interpretation you are giving to the orders to explain how the Speaker's ruling could be legal, both now and in the future. 

I repeat: The Speaker is continuing to "recognise" the defunct United Future to preserve Peter Dunne's special privileges for the remainder of the parliamentary term.  If he becomes an independent MP for this interim period while United Future scrabbles round for new members, there is no way back.

 

 

 

 

by Graeme Edgeler on June 07, 2013
Graeme Edgeler

Jane - the Speaker recognised United Future as a parliamentary party. Where is his power to revoke that recognition?

by Tim Watkin on June 07, 2013
Tim Watkin

And now Dunne's resigned as a minister - breaking news

by BeShakey on June 07, 2013
BeShakey

And now Dunne's resigned as a minister - breaking news

In relation to the GCSB investigation, not this (and his status as a Minister is independent of his status as a party leader).

The problem is that Carter is damned if he does/damned if he doesn't! I mean, the Speaker can hardly adopt a rule saying "whenever there's an argument about what Standing Orders say, I'll do whatever is against the interests of my party so as to avoid claims of bias." So the best a Speaker can do is make what he/she thinks is the "right call", and then suck up the inevitable criticism.

Surely in that situation the best course of action, if you wanted to be seen to have made an independent decision, would be to go through a rigourous process and then release all the advice and some commentary on the decision making process so that any suspicious minds could be allayed. The fact that he has withheld this is a strong hint that he didn't follow such a process.

by Siena Denton on June 08, 2013
Siena Denton

Kiaora Andrew.

I've been reading Standing Orders of the House of Representatives, 2011 and Chapter 1: General provisions and office-holders

Introduction

(2) Interpretation

The Speaker (or other member presiding) is responsible for ruling whenever any question arises as to the interpretation or application of a Standing Order and for deciding cases not otherwise provided for. In all cases the Speaker will be guided by previous Speakers’ rulings and by the established practices of the House.

I am a novice but for some reason and you can correct me, the Speaker may have ruled on this United Party issue ie, given a grace period for the party to reregister itself (prior to today's announcement) because there is no precedent that has "otherwise" been "provided for".

I hope It make sense and as for previous Speakers’ rulings, goodness me! A whole 270 pages worth.

Just one more question what does it mean for Mr Dunne (I reference below)

He made an oath of allegiance and given what has occurred, though he has stated that he didn't leak the Kitteridge Report, by what has transpired he does looks guilty now this solemn promise of allegiance he made, can Mr Dunne face a charge of some kind?

Speakers' rulings OPENING OF PARLIAMENT (SOs 12–14)

3
The purpose of the oath is to make a solemn promise of allegiance to the Head of State of New Zealand. Any other wording used in the oath-taking ceremony alters the nature of the solemn promise made. It does not fulfil the requirement of the Oaths and Declarations Act 1957, and therefore fails to meet the requirement of section 11 of the Constitution Act 1986 for members to take the oath or affirmation before being permitted to sit or vote in the House. Members can make statements about their beliefs and other complementary allegiances at other times, for example during debate, in the media, or in public policy discussions, but not when being sworn in.

Report of the Standing Orders Committee, September 2011 (I.18B), p. 11.

Thanks.


 

by Andrew Geddis on June 08, 2013
Andrew Geddis

Sienna,

Yes - this had never arisen before, so the current Speaker had no past precedent to fall back on. So if the Speaker believed the Standing Orders weren't clear, then the Speaker had to make his own call on what it means. However, rather than "interpret" the Standing Order, it seems like he decided to rewrite it to "work" in a way he thought was fair!

As for Dunne's oath - no, there are no legal consequences that will flow from his actions in regards to this. He didn't swear not to (maybe, possibly) give copies of confidential reports to journalists who he seems to spend an awful lot of time communicating with.

by Jane Beezle on June 08, 2013
Jane Beezle

It is very difficult to believe that the Speaker's decision - which came on Thursday - and the resignation of Peter Dunne - which came on Friday - were not co-ordinated or informed by each other in some way.

It looks like, in return for an assurance to the government about continued confidence and supply, the Speaker has given Peter Dunne some "breathing space" on the re-registration of his party in a way that stretches interpretation of the Standing Orders to the limit.

If this is true it is shameful.  But even if it just looks this way, it is pretty poor.  The appearance of impartiality of the Speaker from party political decisions is as important as impartiality itself.

All up, this appears to be a shabby continuation of the running down of our constitutional framework.

by Jane Beezle on June 08, 2013
Jane Beezle

Oh, and Graeme - you are going to have to look at a Public Law textbook to find the answer to that question.  Or maybe ask a second year law student.

Post new comment

You must be logged in to post a comment.