Shirley Ken: Electoral Matters Bill — First Reading 
Shirley Ken: Electoral Matters Bill — First Reading 
[Volume:618;Page:14207] 
Hon KEN SHIRLEY (ACT) 
: 
 The Electoral Matters Bill is the wash-up from the review of the last election and of the one before it. Mr Barnett claimed that this was only the second review that had ever been undertaken. That of course is nonsense. Parliament has reviewed its procedures from elections throughout the ages. That was really a bit of self-congratulatory pap at best I think. There are ad hoc tinkerings associated with this bill but it does not pick up all the recommendations of the Electoral Law Committee. That I believe is regrettable in itself. I think those recommendations should have been picked up. 
If we look at the amendments to section 55 of the Electoral Act firstly we see what is being referred to as the “Harry’s law” amendment. I think this Parliament needs to reflect on that because I do not think Parliament behaved well on that issue. The law may have been unreasonable and may well have been unfair but nevertheless it was the law and the very fact that we are making these amendments here today underpins the point that at the time when the Harry Duynhoven issue arose that was the law. Under the current law the Speaker has no discretion but must act forthwith and declare a vacancy. That did not happen and I believe that is a constitutional problem that this Parliament lives with. It is regrettable. It most certainly would have been unfair on Mr Duynhoven and it may well have been unreasonable but it was the law. The difficulty is that when the Speaker does not act when he should act that creates a precedent. There are many many very important constitutional matters that do require action. If the situations when the Speaker does or does not act are picked at random there is a very serious problem indeed. 
The other aspect of section 55E of the Act is the clarification in this bill of the definition of an “appropriate person”. I agree with Mr Donald that the party-hopping legislation brought to this Parliament by Dr Cullen for overt political reasons is very bad legislation. That has always been the position of the ACT party. It is very bad legislation and there is a delicious irony in the fact that the only party that may invoke that legislation could well be the ACT party. I have no difficulty with that and I want to be right upfront on that. I do not believe in a taxation rate of 39 cents in the dollar. I think that is a bad foolish stupid law but I pay it because it is the law. ACT is a law-abiding party. We believe in the rule of law and if the Government makes stupid laws like the party-hopping legislation then it is the law and it does stand. So that is the situation with regard to that matter. 
The other issue we have is the question of the Electoral Commission and the various broadcasting regimes. I think it is an outrage that the major parties in this Parliament have used the tyranny of the majority to ensure they both have a party representative on the Electoral Commission which makes the determination of who gets money for broadcasting and of how much people receive. The two major parties use the tyranny of their majority to put their own people—their own stooges—on the commission to make sure that they queer the pitch in their own favour. That is wrong in principle. It could be argued that the commission should be independent but I would take the argument further and ask why on earth we need an Electoral Commission at all. It is totally unnecessary. We do not need the State to dictate to us and to set up commissions on who can advertise and on how people can promote themselves. 
All sorts of anomalies still exist with that system. We seem to have a fixation that we cannot advertise on radio or television but we can put unlimited advertising in the newspapers—as indeed we have seen in recent weeks with the parties who had not organised their affairs very well trying to spend all the taxpayers’ money allocated to them before the end of the financial year. Parties have been engaged in great wasteful splashes of advertising all over the metropolitan papers just because they could not organise themselves. When someone in their offices realised there was a big bucket of money and they either had to use it or lose it they splashed it all out on very expensive advertising. The worst example would have been New Zealand First’s advertisement with Winston Peters’ photograph and the text of an old speech he had given. Winston Peters had an old speech printed and took up a full page of prime advertising space in the  
Sunday Star-Times 
 purely because he realised he had to spend up his allocated taxpayers’ money before the end of the year or he would lose it. He had been so disorganised throughout the year that he had not organised the spending of the budgets appropriately so he just splashed out on very elaborate advertising.  
What we have with regard to electoral broadcasting is an unnecessary and foolish restriction. Parties can have unlimited communication through the Internet or through newspapers but somehow we have a fixation on broadcasting on the airwaves—whether it is on television or radio—and we have to have a big elaborate State commission that sets out rules and appoints commissioners and that the two main parties have their own stooges on. It is very bad. As I have said we could argue that the commission should be independent but I would go a step further and say we do not need it at all. The commission should be totally abolished; it is totally unnecessary.  
Other aspects of this bill concern us. I have outlined one the “Harry Duynhoven amendment”. It is a tidy-up but it is also a recognition of a failure to act in a constitutional sense which is rather important. The “appropriate person” issue in section 55E only endures for this Parliament. The Electoral (Integrity) Amendment Act was only ever to apply for one parliamentary term so it is really almost redundant before it even comes into effect. It is after the fact in essence. The other aspect is the electoral broadcasting regime. I have outlined ACT’s position on that. We are opposed to it because we do not believe we need it. 
MURRAY SMITH (United Future) 
: 
 The first part of the Electoral Matters Bill resurrects for us the farce of the legislation that was the Electoral (Vacancies) Amendment Act of 2003. That was a farce and no credit at all to this House and to this Government. It arose because the Hon Harry Duynhoven a highly respected colleague confessed that he might have breached the Electoral Act. The Privileges Committee found that was the case with the Crown Law Office affirming that from an objective point of view. Other members were purported to have probably been in the same situation as Harry Duynhoven but had failed to disclose it. The Government passed a bill that made a mockery of due process. The Government should have been at pains to demonstrate respect for the law as it stood but instead in a cynical attempt turned the situation around and covered over a breach of the Act. I know that Harry Duynhoven was embarrassed about that situation and he indicated that he would rather have had a by-election than that legislation because of the doubt over it. It was a situation that as the Hon Peter Dunne said in his first reading speech on that legislation on 6 August 2003 showed a preferential treatment of members of Parliament over ordinary citizens. I would go further than that and say it showed a preferential treatment of members of the Government over members of other parties given the situation that subsequently arose with regard to Nick Smith. 
However the real issues with regard to this bill—and it is appropriate that we should review the eligibility criteria—go back to the situation and the intention of the original legislation. That was very well outlined by the Hon Peter Dunne in his first reading speech when he said: “one has to go back and look at the intention of the clauses that were passed—going right back to 1852. It is absolutely clear that the circumstances at the time of the passage of those clauses and their subsequent carry-through related to a far different world than our world today. At the time of their passage there was essentially the British Empire hostile Europe and not much else … We can even take the situation right through to the outbreak of World War II and argue with some validity that these provisions were relevant then—certainly in the way in which we detained people deemed to be hostile aliens. But I do not think that anyone could mount a reasonable argument today to suggest that relations with the Netherlands have so deteriorated that any member who takes an action in respect of that country is breaching the intent of the provisions set out in the original bill.” 
The bill outlines four circumstances when it is suggested that a seat should become vacant. Those are when a person ceases to be a New Zealand citizen when a person acquires dual or multiple citizenship except by descent or birth when a person is appointed to or takes an office that involves the swearing of an oath of allegiance to a jurisdiction other than New Zealand and when a person accepts nomination or agrees to be a candidate for election to another Parliament. In that respect there are a couple of points to note. One is that section 55(1)(c) of the Electoral Act is not deemed to be altered. That provision states that if a person “does or concurs in or adopts any act whereby he or she may become a subject or citizen of any foreign State or Power or entitled to the rights privileges or immunities of a subject or citizen of any foreign State or Power;” he or she vacates the seat. That may well prove to be really too onerous. That was the situation the Hon Harry Duynhoven faced as well. The situation whereby a person may become a subject or citizen of another country may be wide ranging. Once again I am not sure whether it is appropriate to put such a harsh restriction on what could be an unintentional default and have a seat vacated. 
Also we should look carefully at the area of whether a seat should become vacant when a person accepts nomination or agrees to be a candidate for election to another Parliament. I can well envisage a situation whereby members of Parliament who had close family connections with Pacific Island communities such as Samoa were looking to stand for an office there because they were intending to leave their seats here and go and live over there or something of that ilk. The fact is that their seats would become vacant if they even agreed to be candidates there in future—there is no time limit here. Such people may say that they will finish up in New Zealand and go over there and that they would be happy to stand for Parliament in a few years’ time when they get there. That would be an agreement to stand and could in itself be sufficient to bring this clause—if it passes—into effect and mean that their seats were vacated even though they were talking about a time in the future. I think we need to look very carefully at that. I am not sure whether it is entirely appropriate that people who have some affiliations with other countries should in a lot of instances be debarred from being in this House but that is something we can look at in the select committee. I welcome the discussion that will take place with regard to that and welcome the outcome of it. I am sure it will be an interesting discussion. 
The second part of the bill relates to the Broadcasting Act. Certainly a number of things within that Act need to be clarified. These are small largely technical amendments and there are some interesting issues there that have given rise to unnecessary bureaucracy in the past. It is just a pity that recommendations for these changes have been around since the inquiries into the 1996 and 1999 elections as well as into the latest one and that it has taken all this time to address them. In particular some of the issues are firstly the question of the allocation to political parties of time and funding for election broadcasting when there are by-elections. Given that by-elections are all about constituency positions and not list positions it is quite appropriate that we remove references to giving party funding in those sorts of instances. Secondly the bill as drafted also provides for the removal of the need to circulate to all broadcasters an invitation for free time. I know from my experience as secretary of the United Future party and of the Future New Zealand Party before that that we used to get a mound of paperwork around election time from all sorts of broadcasters—radio mostly—that had all been invited to say whether they would give free time. They all came back with screeds of paper—we would get those plonks of paper landing on our desks at various times through the election campaign—and basically stated that they were quite happy to provide the time if it was paid for. I think it is quite a good idea to restrict that and to take away the huge paper war the Electoral Commission has had to handle. 
I also think in terms of the whole democratic process it is quite appropriate that electoral parties can register right up until the dissolution of Parliament and not up until 30 days beforehand particularly with regard to a snap election which can catch some parties on the hop. I think that change is an improvement in terms of the democratic process. I think that the measure for the resolution of disputes proposed in section 77 inserted by clause 22 is also very positive. A situation can arise during elections called at short notice whereby parties are unhappy with the way that broadcasters are treating them vis-à-vis other parties in particular and a quick mechanism for the Electoral Commission to have the ability to resolve those disputes and give a final decision is I think a good thing for everybody concerned. It may be that the outcome is not a happy one but someone simply does not have the time to go through a core process in the heat of an election and have a dispute meaningfully resolved in a situation in which it will have an immediate effect. Nobody really wants to litigate the thing after the event—it seems to be a mere academic exercise at that point. I think that a quick dispute resolution process is a welcome measure here. 
United Future will support this bill being referred to the select committee and we look forward to the discussion and debate that will surround these issues.