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A Power grab?

Written By: - Date published: 9:29 pm, February 25th, 2010 - 11 comments
Categories: democratic participation, election 2011 - Tags: ,

The Electoral (Administration) Amendment Bill, ostensibly drafted to bring about a merger of the Electoral Commission and the Chief Electoral Office, would allow Simon Power to appoint a new Chief Electoral Officer and new Electoral Commissioners for the 2011 election. This is wrong. These officials must all be completely independent, they must not be or be seen to be political appointees.

Strangely the Bill also provided for the possibility of an MP to be appointed as an electoral commissioner. So potentially Simon Power could appoint a retiree from National’s front or back benches, to oversee the next election! They would have to resign from Parliament, but again, this is quite wrong.

Simon Power has cultivated a reputation for being consultative, but these features have the appearance of – forgive the pun – a Power grab. As they say,  in politics perception is everything. Why put them in the Bill if they are not going to be used?

It is a small Bill and there were a select few submitters. The merger does make sense – dealing with two separate agencies in the last election was hair-pulling – not that I have much left to pull after three elections as a Party Secretary.

But it was a strange Bill in a number of respects. The Bill is intended for for enactment this year, to oversee the 2011 election. Simon Power must “consult” on the appointments, but in the end he – and the National party cabinet – would decide who to appoint. In simple terms, this would make the Commissioners perceived as political appointees. This is totally unsatisfactory – they must both be and be seen to be utterly independent from the slightest political influence. Our democracy demands it.

Secondly, the provision that envisages  a former Member of Parliament being appointed as an electoral Commissioner has come out of the blue.

It opens up the scenario that if a party wanted to move someone on from Parliament, the Minister could appoint a Member of his or her party to a reasonably well-paid and in the case of the Commissioners not a particularly time-consuming job.  This again would destroy any perception of their independence.

This also is completely unsatisfactory. As I said to the Select Committee, “If it can be done, it will be done.” One wonders why it was there at all.

My concern is about 2011, hence the puns, but none of the submitters supported the Ministerial appointment process, including David Farrar who identified his National Party colours, so opposition to it is not partisan.

At least one other submitter raised the question of the unsuitability of appointment of former Members of Parliament; however  the major discussion focussed around whether the persons so constituted should be independent Officers of Parliament, similar to the Auditor-General, the Commissioner for the Environment, and the Ombudsmen.

Most submitters favoured Officer of Parliament status, as do I. Former Clerk of the House and now Officer of Parliament as Ombudsman David McGee was of the contrary view, but made one very interesting point. While Officers of Parliament are appointed by parliamentary consensus,  he pointed out that this is only by convention. I think consensus should be a requirement in the law.

The consultation process used by Simon Power has been limited to  parliamentary parties – MPs – only. It’s a bit of a closed shop. The extra-parliamentary parties, members and officials, have not been included, even though they carry the can when things go wrong. Nor have those parties who contest elections but are currently not represented in Parliament been given a say.

I must say the way this  Bill has been drafted did not give me great confidence for the wider reform of the Electoral Act still to come. I will comment more on some aspects of  that in subsequent posts.

11 comments on “A Power grab? ”

  1. [abuse deleted — r0b] Firstly, the appointment process is better than the current one, where two members of the Electoral Commission (the secretary for justice and the additional member “appointed by the Governor-General”) are appointed by the Minister with no requirement for consultation, while the Chief Electoral Officer is effectively appointed by the Secretary for Justice after informal consultation with the Minister. The new bill makes these appointments transparent and formalises a requirement to consult other parties in Parliament. The Commission being a crown entity, its difficult to see how else its members should be appointed, unless you want to echo the appointment process for the Abortion Supervisory Committee and have them voted on by Parliament (though that process might be seen as more political – it certainly is with the ASC).

    Secondly, you’re just plain wrong about the bill allowing an MP to be appointed; rather, it makes it clear that membes of the Electoral Commission are public servants for the purposes of electoral law, and thus disqualified from sitting in Parliament. This echoes the existing s44, which disqualifies members or recent members of the Electoral Commission from sitting, but does it in a slightly tidier way which prevents sitting MPs from being appointed.

    If you’re goign to criticise a bill, it helps if you criticise what the bill actually says, rather than some imagined interpretation which bears no resemblance to reality.

  2. [abuse deleted — r0b]

    Yeah, I deserved that. Readers, feel free to mentally insert an appropriate disparaging remark.

  3. I should note that being voted on by Parliament does work for Ombudsmen, and could work in this case. If you want to try that, and have an MP to front it, I’ll happily draft the SOP.

  4. The feedback I got from the Select Committee is that they seemed favourably disposed to requiring the Minister to require some sort of approval from other parties, rather than just consult- which is good.

    I filed OIAs on the bill and it turns out that the draft bill did not even require the Minister to consult over the appointments (as is the status quo), so it is likely Power himself added in the requirement to consult.

    My preference is for an Officer of Parliament, but David McGee has made a good case against. The key is that appointments should be as widely agreed as possible – I prefer a double super majority of leaders representing 75% of the parties and 75% of the MPs.

    The actual method of appointment has pros and cons also. One can either make it a Ministerial appointment, but require the Minister to have written agreement from party leaders, or one can make it a direct parliamentary debate and vote.

    I have a small concern that having a parliamentary vote on the commissioners, could in itself politicise them slightly – but on the other hand the AG is done that way, so not a biggie.

  5. Having sat through all the public hearings on the bill, I can basically guarantee that the committee will unanimously recommend a different, better, appointment process at the very least.

    • lprent 5.1

      I hope so. But I’m completely unhappy with having some faceless wonk appointed by wellington sitting in control of natural monopolies that I depend on.

      Talking of which, it is time to get the bus…

      BTW: has anyone else noticed the Auckland buses getting steadily more unreliable since xmas? I keep having to push back my time to head to work because of missing buses. It is a marked change because they were utterly reliable last year.

      [lprent: opps wrong debate. I was reading comments backwards without reading the posts and thought it was about CCO’s. ]

  6. Mike Smith 6

    @Idiot/Savant: Here’s what the Explanatory Note preamble to the Bill says about Members of Parliament being appointed as Electoral Commissioners:

    “The Bill also specifies that Electoral Commissioners, Deputy Electoral Commissioners and Returning Officers are disqualified from being parliamentary candidates or from election as members of Parliament. This is to manage a situation that could significantly undermine public confidence in the electoral system, whereby a person administering an election also takes part in it. Likewise, the consequence of a member of Parliament becoming an Electoral Commissioner, Deputy Electoral Commissioner, or Returning Officer will be the creation of a vacancy in the member’s seat in the House. It is currently an offence for a member to continue to sit after having become a public servant, and the Bill extends that offence to a member who continues to sit after becoming an Electoral Commissioner, Deputy Electoral Commissioner, or Returning Officer.”

    The “Likewise” might have been intended as a “tidy up” but it still opens up the possibility I raised. I think that public confidence in the electoral system would be much more undermined if a Member of Parliament became an Electoral Commissioner.

    @ David Farrar Officers of Parliament are appointed by the Parliamentary Appointments Committee chaired by the Speaker, which has a convention of making appointments by consensus. As David McGee pointed out, this is only a convention. I think it should be a requirement; my threshold is slightly higher than yours as I consider these officers must be utterly independent and I think the evidence shows that Officers of Parliament are.

    @ Graeme Edgeler: I hope you are right, my worry is about the draughting that produced this Bill.

  7. The “Likewise’ might have been intended as a “tidy up’ but it still opens up the possibility I raised. I think that public confidence in the electoral system would be much more undermined if a Member of Parliament became an Electoral Commissioner.

    Its already a possibility; in fact, at present its worse, in that one can theoretically be a sitting MP and an electoral commissioner (but you can’t run for office while an electoral commissioner. Its plugging a loophole, not making one.

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