A tale of two Speakers

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.