Parliament's MPs had the chance this week to do something pretty unusual. No, not Morris Dancing, but that is fun to imagine.
Among the many bills they debated was the Electoral (Māori Electoral Option) Legislation Bill which enables Māori to swap between the General and Māori Electoral Rolls at almost any time, and as often as desired.
The Bill itself wasn’t the unusual thing, although it’s been on some people's do-to lists for quite a while. The unusual thing was that the Bill included an amendment to a clause in the Electoral Act 1993 — a clause designed to be difficult to change. A "reserved provision".
Photo: VNP / Phil Smith
I’ll let the Speaker, Adrian Rurawhe, explain.
“I would like to inform the House of my approach to the proposal contained in the bill for the amendment of a reserved provision. Clause 5 amends section 35 of the Electoral Act 1993, which is a reserved provision under section 268(1)(c) of that Act. During the committee stage, the question will be put separately on clause 5, and it will be agreed to only if the votes of 90 or more members are cast in favour of it.”
Reserved provisions are a bit of a rarity in New Zealand law. They are designed to be hard to change, requiring three quarters of MPs, or alternatively more than half the voting public (in, say, a referendum), to change.
That 75 percent is the required 90 MPs the Speaker referred to. Ninety MPs means both National and Labour need to agree. That may sound unlikely but despite the hoo-ha they agree more than you might expect. Mostly on uncontroversial, nuts-and-bolts legislation. Less so on the big, tricky things.
The Vote
Despite the added difficulty of surmounting a reserved provision, political parties prefer to pass electoral law with broad agreement. To help achieve that consensus, the Government had agreed to tighten the Bill to assuage National party concern about tactical roll switching — especially for by-elections. With that change made, National joined Labour in favour.
During the debate National MP Paul Goldsmith gave credit to the Minister, Kiri Allan for adjusting the Bill.
“We're grateful for that. Some cynics have said it's just because 75 percent is required and they need our support. I'm sure that that's not just the case actually, but I think the Minister was genuine in her concern to have widespread support for what is a significant electoral change — as this is.”
Enough suspense already - the vote on the reserved provision went like this…
“All those in favour say Aye.” — Jenny Salesa (presiding)
“Aye” — MPs
“All those opposed say Noe”
“...(crickets)...”
No-one opposed it at all. My math isn’t perfect but I’m pretty sure that 100% is more than 75%.
So the entrenched, reserved, hard-to-amend provision was... amended.
New Zealand's reserved provisions
So what are the reserved provisions in New Zealand law? There are only six of them (and a few definitions), all listed here in the Electoral Act — and all fundamental to our representative democracy.
- The three year term of a Parliament — (something people are making noise about changing currently).
- The make-up of the representation commission — (the folk who crunch the numbers and decide the number and shape of electorates).
- How electorates are determined,
- including what leeway is allowed.
- The voting age (still 18),
- How we vote (MMP with two votes, etc).
Yes, they are all electoral. More or less it’s: who votes, where, how often, and how. It’s everything a good essay requires except the crucial ‘why’.
The missing 'why?'
Why did the Speaker make this ruling? In short, it is part of his job.
“The Speaker ensures the House meets legal requirements that apply to it. Where there is doubt about how the law should be applied in such cases, the Speaker will tend to prefer the approach that is least likely to give rise to judicial consideration of whether the law has been validly made. I say this as an aside, because in this case it is clear that clause 5 is a proposal to amend a reserved provision, and the special majority is needed for it to pass.” — The Speaker, Adrian Rurawhe
Speakers are responsible for overseeing many aspects of Parliament, not all, but many. They include what are called “manner and form” provisions — the niceties of MPs not breaking the rules they have set themselves for how they do their jobs.
It’s useful to have someone act as an early warning system for Parliament — because you really don’t want a situation where 'how a law was passed' gets taken to court — especially not relating to how elections are run. That would open up a whole can of very wriggly worms. Best we leave that kind of problem to the yanks.
