Can you find evidence of an MP's political impact while also ignoring everything they do in Parliament? It sounds difficult at best, but it could be necessary to protect Parliament's constitutional independence.
One of the bills currently before Parliament is the Electoral (Integrity) Amendment Bill, often called the waka jumping bill. It serves the same purpose as another waka jumping bill passed in 2001, but which expired in 2005.
The argument is that in New Zealand, MPs tend to get elected on the basis of the party they belong to. The Bill argues that if, after arriving in parliament, MPs 'ditch the girl what brought them' and swap parties, or start a new party, they distort the proportionality of MMP, and should be able to be expelled from Parliament.
The Justice Committee has been hearing evidence on the Bill including an unusual submitter - the Clerk of the House of Representatives, David Wilson. The Clerk wants to ensure the bill doesn't accidentally hole the ship to stop a sailor jumping off it. (The terrible metaphor is mine not the Clerk's.)
The Clerk of the House of Representatives, David Wilson explains the issues to MPs. Photo: VNP / Phil Smith
The Bill seeks to empower party leaders to expel MPs from Parliament, if: a) they can demonstrate the MP is distorting proportionality, and b) they have the support of two thirds of their caucus.
To stop party leaders using the bill for more dastardly purposes, the decision would be up for judicial review (it could be tested in court). A review would require the party leader to demonstrate in court that the expelled MP was acting in a manner likely to warp the balance of parliament.
The Clerk suggested that a court seeking evidence of an MP's behaviour might decide that the best place to look was in Parliamentary proceedings (how they voted, what they said in the House, or in Select Committee, etc), "because they're the most obvious and unambiguous expression of a member's views, and they're a tangible demonstration of proportionality within a Parliament."
It makes perfect sense. If you want evidence of whether an MP is upsetting the balance of power, where better to look than what they do in the seat of power. But there’s the rub.
Parliament enjoys a thing called Privilege. The word privilege here's nothing to do with cucumber sandwiches and polo games, it's an old legal term that means immunity.
David Wilson explained it to the MPs.
"Members of the House are free to say what they wish during Parliamentary proceedings, because those proceedings can't be impeached or questioned in any court. And the primary purpose of that privilege is a constitutional one, to stop conflict arising between the legislative and judicial branches of government; so that the House can operate effectively."
National MP Nick Smith has been a vocal critic of the Electoral (Integrity) Amendment Bill. Photo: VNP / Phil Smith
David Wilson pointed out that while this Bill might entice judges to want to consider an MP's Parliamentary actions as evidence the bill doesn’t allow them to do so; and other bills specifically forbid it.
He just wants the bill to make it very clear that the judicial review does not impact on privilege, and so it can't take anything an MP does in Parliament into account.
National MP Nick Smith has been one of the loudest critics of the current Bill. He sought to clarify with the Clerk some of the things that would be ruled out as evidence in a judicial review.
"So, any speech that the Member had given in the House could not be admitted, any voting record in the House could not be admitted, any proceeding of a Select Committee; any comments that the Member had made in a Select Committee could not be admitted. So the jurisdiction of the court in providing some sort of check on this power of a leader to dismiss a Member of Parliament is very narrow."
The Committee is due to report back to the House on the Bill at the end of July.
