Soon-to-be-ex minister Meka Whaitiri may be in for a shock if she intended to remain an MP, writes legal eagle Andrew Geddis.
When Shakespeare had Dick the Butcher enthusiastically proclaim “The first thing we do, let’s kill all the lawyers”, he proposed a generally laudable objective.
However, there is the odd time when talking to a lawyer before engaging in a major life decision is not just warranted, but highly advisable.
Buying a house on land subject to a cross lease title. Signing an employment contract with a broad non-compete clause in it. Setting fire to your own car in order to claim insurance.
A quick prior chat with someone who knows a little bit about the legal issues involved can save you from a heap of regret down the line.
To such situations we now might add writing to the Speaker of the House of Representatives to inform him that you have quit the party for which you were elected as an MP and want to be recognised as a member of a different one.
Because, as very-soon-to-be-ex customs minister Meka Whaitiri is discovering, this action has quite particular legal consequences. Consequences that, it appears, she may not have fully understood.
At her press conference this morning, Whaitiri said two things. First, she said that she had “officially notified the speaker that [she] had resigned from the NZ Labour Party and have joined Te Pāti Māori effective immediately.” This decision means, she went on to say, that “I intend to be seated with Te Pāti Māori when we return to parliament.”
The problem for Meka Whaitiri is both these things can’t be true. Under the “party hopping” rules in our Electoral Act – rules that Meka Whaitiri voted in favour of back in 2018 – an MP’s seat in the House automatically becomes vacant if they deliver to the Speaker a written notice complying with certain formal requirements.
The MP must have signed the notice. It must be addressed to the speaker. And, it must tell the speaker that the MP either has resigned as a member of the party for which they were elected, or wants to be recognised as an MP for another party.
Where a notice meets these requirements, there is no discretion on the speaker’s part. The MP’s seat must be declared vacant irrespective of what they intended when sending it; they automatically cease to be an MP whether they want to or not. They can’t go sit with another party, because they can’t be in the House at all.
Given what Whaitiri said at her press conference, it’s hard to see how this consequence could be avoided. Perhaps, we may speculate, she emailed the notice to the speaker and so there is no “signature” on it? Although our law again has things to say about when an “electronic signature” will suffice.
And then there’s the question of who gets to decide if Whaitiri’s notice has (apparently inadvertently) triggered the party hopping rules. It’s the speaker that is tasked with making the declaration that her seat is vacant. However, in the past where there is potential uncertainty as to whether such a declaration should be made, the matter has been sent to Parliament’s Powerful Privileges Committee (as it is mandatory to call this institution) for examination.
Furthermore, the Supreme Court has previously been prepared to examine how the party hopping rules apply. Since it has done so, however, parliament has passed the Parliamentary Privileges Act, which on its face seems to expand the range of parliamentary proceedings that the judiciary cannot touch. Does this law now prohibit the courts from being involved in the issue at all?
All of which is to say, perhaps Meka Whaitiri actually should be thanked for seemingly not chatting to a lawyer before writing to the speaker to inform him of her plans. Because, if she had done so, she might have been a little more circumspect and so cheated us of the chance to engage in a whole lot of fun speculation.
Or perhaps when she pledged to “return to parliament” with Te Pāti Māori, she meant it as an election promise, not a today promise, and has no interest in remaining an MP. We’ll soon find out.
Update: At the opening of today’s session in the House at 2pm, Speaker Adrian Rurawhe somewhat surprisingly announced that Meka Whaitiri “is from today regarded as an independent member for parliamentary purposes.”
In response to follow up points of order, the Speaker indicated that this was because (contrary to public statements) he only had been notified that Meka Whaitiri wished to withdraw the Labour Party’s ability to cast her vote in the House and wanted to sit separately from that party. This, he suggested, was insufficient to meet the terms of the party hopping law (which requires a specific statement that an MP has resigned from their party, or wants to be regarded as an independent MP or MP for another party).
What remains confusing, however, is how the Speaker then was then able to declare Meka Whaitiri to be an independent MP. Under Standing Order 35(3), “Any member who is not a member of a recognised party is treated as an Independent member for parliamentary purposes.” As such, the Speaker somehow has not been told by Meka Whaitiri that she wants to be regarded as an independent MP for parliamentary purposes (and so the party hopping law doesn’t apply to her), while also being able to conclude from the correspondence received that she is no longer “a member of a recognised party” (and so is to be regarded as an independent MP).
I began this piece with a quote from a Shakespeare character. It now seems apt to conclude it with one from Lewis Carroll: “When I use a word, it means just what I choose it to mean – neither more nor less.”
