Ross, Bridges and the party hopping law (updated for recent developments)

Should Simon Bridges use the party hopping law to force Jami-Lee Ross from Parliament? You can make up your own mind up on that, but he can if National's caucus wants him to [update: unless Ross' seat becomes vacant because of his mental health].

[Update: According to media reports, Jami-Lee Ross has been taken into mental health care (i.e. has not voluntarily committed himself for treatment). This has two consequences for my already written commentary on the party hopping law (which remains in place below):

One, it means that National will almost certainly not use the party hopping law in relation to him. Not because Ross' commital changes my original legal analysis at all, but rather because no political party is going to force an unwell MP who is undergoing treatment out of Parliament. They just aren't.

Two, it brings the Electoral Act 1990, s 55(1)(i) into play, in that Ross' seat automatically becomes vacant "if he ... becomes mentally disordered, as provided in section 56." I am not knowledgable enough regarding mental health law to comment in any detail on this possibility, so I'll reproduce s 56 here for you to see:

(1) Where a member of Parliament is, or is deemed to be, subject to a compulsory treatment order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, the court by which the order is made shall, as soon as may be, give a notice to the Speaker of the making of the order.

(2) Where a member of Parliament is received or detained in a hospital in accordance with an inpatient order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, the person in charge of that hospital shall, as soon as may be, give notice to the Speaker of the reception or detention.

(3) Where the Speaker receives a notice under subsection (1) or subsection (2), the Speaker shall forthwith transmit the notice to the Director-General of Health, who, together with some medical practitioner named by the Speaker, shall without delay visit and examine the member to whom the notice relates, and shall report to the Speaker whether the member is mentally disordered.

(4) If the report is to the effect that the member is mentally disordered the Speaker shall, at the expiration of 6 months from the date of the report if Parliament is then in session, and, if not, then as soon as may be after the date of the commencement of the next ensuing session, require the said Director-General, together with the said medical practitioner or some other medical practitioner named by the Speaker, again to visit and examine the member; and, if they report that he or she is still mentally disordered, the Speaker shall forthwith lay both reports before the House of Representatives, and thereupon the seat of the member shall be vacant.

So, in essence, if Ross gets committed into compulsory mental health care by a Family Court Judge, and if he's still in that care six months from now, then his seat becomes vacant at that point.]

I'm off tomorrow to Australia, where I'll (deliberately) have limited internet access, so before going I wanted to put down my thoughts on how Jami-Lee Ross' situation fits into the recently passed party hopping law. Personally, I think National would be mad to use it here. After all, let's recall what Nick Smith said in the House about the legislation not even a month ago:

I have fought this bill at every stage, with every tool, and with every bone in my body. I hate it. I hate it for the crude power grab that it represents. I hate it for the way that it will mute MPs' free speech. I hate it for the way that it will tarnish this country's democratic reputation. I hate it for the awful precedent that it sets in terms of the future of electoral law. I hate the way it trashes the freedoms that were so hard fought for by our predecessors.

While using this new law to rid themselves of a turbulent priest might give immediate solace to a National Party no doubt hurt and angry at betrayal, it would provide an immediate riposte for every time it criticises the Government from a claimed position of principle. And while the voting public is somewhat cynical about parties' claims of political position, a backflip of this magnitude still must resonate as dodgy practice. 

Nevertheless, using the party hopping law apparently still remains on the table, in that National says "all options are open" for dealing with Ross. So I'll leave the "should National use this power" for you, dear reader, to resolve and turn instead to the legal "can National use this power" question.

The short answer is yes ... yes it can. 

Ross became an independent MP on Tuesday, when National informed the Speaker he was no longer a member of its caucus. This happened after Ross announced publicly he'd resigned from it, shortly before Bridges appeared from a caucus meeting to say it unanimously had decided to expel him. So whether he quit, or was kicked out, the result is the same.

However, this independent status does not mean he has to leave Parliament under the party hopping law. It is only if Ross had gone to the Speaker and informed him that he'd quit National and so wanted to be an independent MP that this would have occured. National's notice to the Speaker regarding Ross' changed status does not in itself have this effect.

In order to remove Ross from Parliament altogether, Bridges (as National's leader) would instead have to give special notice to the Speaker under the party hopping law. Before doing so, he has to give Ross twenty-one working days in which he can formulate and present his reasons for Bridges not giving that notice. And after those twenty-one days expire, National's caucus has consider any such reasons before at least two-thirds of them vote to back Bridges' action.

Once these formalities are completed, then Bridges is free to go to the Speaker and present the notice, whereupon the Speaker must declare Ross' seat vacant - meaning a by-election must be held in Botany. But unless and until Bridges does so, Ross can continue to sit on in the House.

"Hang on, though", I hear you say. "Doesn't the party hopping law require that the MP in question has 'distorted proportionality' before the party leader can present the notice to have her or him kicked out?" And you are right to do so!

Because when giving the notice to the Speaker, Bridges will have to include in it a statement that he "reasonably believes that the member of Parliament concerned has acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election." 

This really isn't a problem for Bridges, however, as the Supreme Court has said it won't be. Back in 2005, Elias CJ (in a case called Prebble v Awatere Huata) interpreted this concept of "distort[ing] ... the proportionality of political party representation in Parliament" as follows:

I am of the view that the scheme of the statute is that the proportionality of party political representation in Parliament is distorted when a member continues to serve in Parliament after ceasing to be a member of the political party for which he or she was elected. The relevant distorting “conduct” of a member is not properly to be equated to voting conduct in the House because the statute itself identifies cessation in membership of the party as the distorting condition which gives rise to vacancy if the statutory procedures are invoked.

Somewhat annoyingly, the decision then had another four concurring judgments to it, each of which came to the same conclusion using slightly different words. Nevertheless, all five judges agreed on this central point: "distorting proportionality" in the legislation isn't necessarily about how an MP votes in the House; rather the wider changes caused by an MP going from party member to independent suffice. Applying that precedent from our highest court, Ross' new status as independent (which will cost National some parliamentary funding, plus seats on a couple of select committees, etc, etc) meets the required statutory threshold.

In a nutshell, so there is no confusion, Ross already has "distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election." There's no need for National to wait and see whether he'll continue to vote with them, or the like.

Furthermore, in the specific case of Donna Awatere Huata (whom Act was trying to winkle out of the House after she had ceased to be a member of its caucus), all five judges were satisfied that it was her conduct that had led to her becoming an independent (and thus had distorted proportionality). Consequently, Act's leader could quite reasonably believe that she had "acted in a way" that produced the necessary distortion, and so could tell the Speaker such in his notice.

Have a read of Toby Manhire's list of Ross' "33 grenades" over on The Spinoff and ask yourself if Bridges also could reasonably believe that it was Ross' conduct that led to his becoming an independent MP (and thus has distorted proportionality in Parliament). Or, rather, ask yourself if any court would possibly conclude that Bridges could not reasonably believe this.

In a nutshell, so there is no confusion, the necessary legal preconditions exist for Bridges to begin the process to use the party hopping law against Ross in order to force him from the House. If more than two-thirds of National's caucus are prepared to perform a gymnastic political backflip of Olympic gold medal level standard, he can do so. I doubt he will do so - but then again, all I know about is the law. Politics is far weirder and scarier.