Submission on Electoral (Administration) Amendment Bill

Submission on the Electoral (Administration) Amendment Bill close on Thursday 10 December 2009.

My submission is below:

SUBMISSION OF DAVID FARRAR
TO THE JUSTICE AND ELECTORAL SELECT COMMITTEE
ON THE ELECTORAL (ADMINISTRATION) AMENDMENT BILL

About the Submitte

1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
2. I have over 15 years experience with the Electoral Act.  As a former parliamentary staffer I advised National Prime Ministers and Opposition Leaders on the Act.  I have been an electorate campaign manager and a national campaign staffer, requiring intimate knowledge of the Act. I also have blogged extensively on electoral issues.

Executive Summary

1. I support the Electoral (Administration) Amendment Bill, congratulate the Government on introducing it, and urge the Select Committee to pass it.
2. I do propose one small, but significant change, relating to the appointment of the members of the Electoral Commission so that the Minister of Justice must gain the consent of the majority of parliamentary leaders, not just consult with them.

Specific Comments

1. This bill is long overdue. A combined electoral agency was first recommended by the 1986 Royal Commission into the Electoral System. It was also agreed in principle by the Government in 1994 (in 1997 they changed their mind). In 2000 it was proposed by the Ministry of Justice and again in 2001 by the Election Framework Taskforce
2. I agree with the decision to only merge the Electoral Commission and Chief Electoral Officer at this stage, and after the 2011 election to also merge the Chief Registrar of Electors.
3. Of the three models for the (new) Electoral Commission, my preferences in order are 1) Independent Officer of Parliament, 2) Crown entity, 3) Within the Ministry of Justice
4. I note the Ministry of Justice has advised that establishing the Commission an Independent Officer of Parliament could not be done in time for 2011. If this is the case, I would not advocate that one delay the merger to go with this model, however I would urge the Committee to ascertain exact details of why the Ministry says this model could not be completed in time.
5. I also note the assertion that the functions of the agency do not match the criteria for an Officer of Parliament as set by the Finance and Expenditure Select Committee. Notwithstanding that, I believe the independence that an Officer of Parliament would give the Commission is highly desirable, and that the criteria should be reviewed.
6. It may be useful to solicit advice from the current and former Clerks of the House, as to whether or not they believe the Electoral Commission would be a suitable Officer of Parliament.
7. My main reason for preferring the Commission to be an Officer of Parliament is that it ensures any Commissioners have the support of a majority of Parliament, not just the Minister of Justice.   If this model is not feasible, then I would advocate that the Crown entity model require the Minister of Justice to gain approval, not just consult with, other parliamentary parties.
8. I note from the departmental papers, that the original recommendation was for the Electoral Commission to have a sole commissioner. I believe it is safer to have a Board and a CEO model (as proposed), and support this remaining.
9. Clause 4D(2)(b) provides for one of the Commissioners to be appointed as Deputy Chair of the Commission, and that this person can not (obviously) be the Chair. I would propose that the Deputy Chair should not be the Chair or the Chief Electoral Officer. In a Board/CEO model it is undesirable for the CEO to be even the Acting Chair. It would be simpler and cleaner to simply have each of the three Commissioners to have a distinct role – Chair, Deputy Chair, and CEO (Chief Electoral Officer).
10. 14. Clause 4D(4) states “Before recommending the appointment of an Electoral Commissioner, the Minister must consult with the parliamentary leaders of all political parties represented in Parliament.”
11. The early papers from the Ministry do not even provide for the Minister to consult parliamentary leaders. This requirement was added on, presumably at the request of the Minister or Cabinet Domestic Policy Committee. It is commendable the need for consultation was accepted by the Government.
12. However I believe it is desirable for the Minister to not just consult, but to gain approval of a super-majority of parliamentary leaders. While the current Minister has shown considerable integrity in his dealing with electoral issues, this does not mean a future Minister would do the same, and they might appoint a Commissioner over the objections of other parliamentary parties.
13. The expanded powers of the Electoral Commission make the need for wide parliamentary acceptance of Commissioners even more vital. The current Electoral Commission has little role in the actual running of the elections compared to the Chief Electoral Officer. And the current Chief Electoral Officer is appointed by the Secretary of Justice who is appointed by the State Services Commissioner. This is well removed from political appointment. Under this bill, the Minister of Justice will directly appoint the person who primarily runs the NZ electoral system.
14. My proposed amendment is for the Minister to gain a double super-majority, so that Clause 4D(4) would state “Before recommending the appointment of an Electoral Commissioner, the Minister must gain the written approval of parliamentary leaders representing at least 75% of all political parties represented in Parliament and at least 75% of all Members of Parliament, and attach such approvals to the recommendation to the Governor-General.”
15. Electoral Commissioners should be of such unquestionable integrity, independence and competence that even having one parliamentary party oppose their appointment should give pause. However requiring unanimous assent to an appointment is undesirable as it may encourage unreasonable demands in return for support.
16. Requiring a double super-majority provides safeguards for both large and small parties. The requirement to have agreement from leaders of at least 75% of the parties in Parliament means that the two major parties can not decide on an appointment opposed by more than one small party. As the Commission decides issues such a broadcasting allocations, this is desirable. Likewise though the Government can not “gang up” with several small parties to make a appointment opposed by the major opposition party, as it is likely the major opposition party will always have at least 25% of the MPs. Hence this will encourage the Minister to put forward nominees that are widely supported and uncontroversial. This will protect both the Minister and more importantly the reputation of the Commission.
17. Some may assert that no Minister would appoint someone, if opposition parties had objected to the appointment when consulted. I have been told by former Opposition Leaders that this has occurred on a number of occasions. Hence this extra safeguard is not theoretical.
18. A current or former Judge has normally chaired the Electoral Commission. I am not convinced this is absolutely essential, but the Committee may wish to consider whether this is a practice they wish to depart from.
19. Finally, while outside the ambit of this bill, I would note that once the Electoral Commissioner has been fully integrated with the Chief Registrar of Electors, Parliament may wish to consider if it should play a significant role in local body elections. I think there would be considerable merit in handing it authority for local body elections, in conjunction with local returning officers in each authority.

In summary I urge the Justice and Electoral Committee to recommend the Electoral (Administration) Amendment Bill be passed, with an amendment requiring the Minister of Justice to gain the agreement of a double super-majority of parliamentary leaders for the appointment of Electoral Commissioners.

David Farrar