Barker Rick: Electoral (Vacancies) Amendment Bill — First Reading 
Barker Rick: Electoral (Vacancies) Amendment Bill — First Reading 
[Volume:610;Page:7707] 
Hon RICK BARKER (Associate Minister of Justice) 
: 
 I move  
That the Electoral (Vacancies) Amendment Bill be now read a first time. 
 Because of the urgency accorded to this bill it is the Government’s intention that the bill be passed through all its stages without referral to a select committee. However for reasons that I will explain I will be writing to the Justice and Electoral Committee inviting it to inquire into the scope and application of section 55 of the Electoral Act for future Parliaments. 
The purpose of this bill is simple. It is to ensure that no members of this forty-seventh Parliament lose their seats merely because they swear allegiance to or obtain the citizenship of another country as long as they do not renounce their New Zealand citizenship. Section 55(1)(b) of the Electoral Act 1993 provides that the seat of a member is vacant if he or she swears allegiance to a foreign power or prince. Section 55(1)(c) provides that a member’s seat is vacated if that member takes out citizenship of another country or takes other action such as renewing a passport which may cause the same result. The bill provides that these provisions will not apply to any member of this Parliament as though the bill had been in force on 14 August 2002. That was the day that the writ for the election of members of Parliament was returned. The bill applies only to this Parliament and will expire at the close of polling at the next general election. 
The bill has been introduced on the advice and recommendation of a majority of the Privileges Committee. It has been triggered by the situation of the member of Parliament for New Plymouth a very popular member with a majority of 14930 votes. Mr Duynhoven a Dutch citizen by birth a New Zealand citizen by birth and first elected to this House in 1987 lost his Dutch citizenship by operation of a Dutch law in 1995. He took the opportunity to reinstate his Dutch citizenship this year following the repeal of the 1995 law. By doing so he inadvertently brought section 55(1)(c) of the Electoral Act into operation. This provides that the seat of a member is vacated if the member obtains the citizenship of another country. 
Did Mr Duynhoven dupe his constituents in reinstating his Dutch citizenship? No. Mr Duynhoven—his name is a good clue as to his origin—is rightly proud of his Dutch heritage and the electors of New Plymouth were well aware of it when he was elected in 1987. He was a Dutch citizen then and when he was re-elected in 1993. He has taken no oath of allegiance to any power other than to Her Majesty the Queen of New Zealand. In completing the documentation to reinstate his Dutch citizenship he was simply recovering an entitlement he was born with as a consequence of his father’s nationality. 
A member in Mr Duynhoven’s situation should not lose his seat. Dual citizenship is not unusual in New Zealand. We have a very relaxed approach to our citizens adopting the citizenship of other countries. No person who knows Mr Duynhoven doubts his loyalty and commitment to this country. Nor for that matter should anyone reasonably question the commitment to New Zealand of other members of this House. There is no reason to believe that members of Parliament with dual citizenship cannot put New Zealand’s interests foremost. 
Section 55 and in particular subsection (1)(b) and (c) needs a thorough review. The provision was first introduced into New Zealand through the New Zealand Constitution Act 1852 an Act of the Parliament in Britain. Its terms have been largely unchanged since then. Under the close examination provoked by Mr Duynhoven’s situation it has become apparent that this situation does not meet the needs of modern New Zealand and its Parliament and indeed its operation gives rise to some inappropriate and surprising consequences. 
The constitutional and legal context today is completely different from that of 1852. In 1852 there was no concept of New Zealand citizenship. We were all British subjects. It was not until 1948 with the British Nationality and Citizenship Act that provision for New Zealand citizenship was introduced. It was not until 1975 that the Electoral Act caught up with our sense of nationhood and we made New Zealand citizenship a requirement of candidacy for Parliament. In 1975 an electoral amendment also provided an exception for British subjects registered as electors; it provided that they could contest parliamentary elections. It is clear from the report of the select committee considering the amendment that this exception was intended to be a short-lived opportunity designed to allow those people to obtain citizenship. As it happened Parliament did not get round to removing that exception until last year. 
Section 55 as it is currently drafted appears to have some odd effects. A New Zealand citizen who is a dual citizen can as is quite proper be a candidate and be elected. However a New Zealand citizen who obtains dual citizenship after the election loses his or her seat. But get this: members who renounce their New Zealand citizenship do not lose their seats. That is quite extraordinary. 
It has been suggested that the object of the provision might be to require members who obtain dual citizenship after their election to re-test their support with the electorate. It is not at all clear that this was the objective but if it was the rationale it does not work in an MMP Parliament. List members do not have the opportunity to contest a by-election. They are simply replaced by the next person on the list. 
Clearly section 55 needs to be looked at. This bill suspends its operation for this Parliament and addresses Mr Duynhoven’s situation and that of any other members in a similar situation. This will allow the Justice and Electoral Committee the opportunity to inquire into the scope and application of section 55 and consider and report on what the law should be for future Parliaments. 
I want to touch on the retrospective aspect of this bill. It provides that in determining whether the seat of a member has been vacated by operation of section 55(1)(b) and (c) the bill must be taken to have been in force on 14 August 2002. This was the day that the writ for the election of members of this Parliament was returned. Retrospective legislation is wrong where it takes away rights. However it is perfectly acceptable constitutionally and not uncommon in this Parliament to confer a benefit or remedy a defect or an inadvertent detriment through retrospective legislation. For example the 1997 Parliament enacted the Fisheries (Quota Operations Validation) Act to validate retrospectively allocations and entitlements under the fisheries quota system. In 1998 the Oaths and Declarations (Validation) Amendment Act was passed retrospectively to validate oaths and declarations improperly taken by employees of New Zealand Post. There are many other examples of retrospective legislation that has been very agreeable. 
This bill before the House suspends the operation of provisions that have to say the least inappropriate surprising and unexpected consequences. It confers a benefit on all members of this forty-seventh Parliament. Its application is limited to this Parliament and expires with the next general election. It provides an opportunity for a thorough review of the law by the Justice and Electoral Committee so that section 55 can be tidied up for the benefit of future Parliaments. I commend this bill to the House.