11 November 2008

Election 08: MP free zone

I've been reminded of a little quirk within our constitutional system: for about 19 days, we have no MPs! Let me explain. The term of members of Parliament is set out in section 54 of the Electoral Act 1993:
54 Term of office of member of Parliament
(1) Where an election is held for any electoral district, the person whose name is endorsed on the writ issued for the election as the person declared to be elected shall, subject to this Act,—
(a) come into office as the member of Parliament for that electoral district on the day after the day of the return of that writ; and
(b) vacate that office at the close of polling day at the next general election.
(2) Where any person whose name is entered on a party list submitted pursuant to section 127, is declared by the Chief Electoral Officer to be elected as a member of Parliament, the person shall, subject to this Act,
(a) come into office on the date after the date of the return made by the Chief Electoral Officer pursuant to section 193; and
(b) vacate that office at the close of polling day at the next general election.
MPs reign until the close of polling. But new electorate MPs don't come into office until the day after the writ (the formal advice to Parliament of the outcome of the election by the Chief Electoral Officer) is returned under section 285 of the Electoral Act 1993. That's not scheduled to take place until 27 November (Chief Electoral Officer: "Election date announcement puts Chief Electoral Office in top gear"). And new list MPs don't come into office until the following day, after the Chief Electoral Officer has declared those elected pursuant to the list.
The other consequence of the quirk is that our constitution needs to provide for the temporary tenure of ministers who are not MPs. The most basic feature of our system is that one needs to be an MP in order to be a minister. (In principle, it's not entirely incontrovertible, as some have suggested we could allow non-MP appointments of ministers. But that would require a constitutional change.) The MP-lacuna during the electoral transition period would ordinarily undermine that feature. But the answer - and smooth constitutional transition - is found in section 6(2) of the Constitution Act 1986:
6 Ministers of Crown to be members of Parliament
(1) A person may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown only if that person is a member of Parliament.
(2) Notwithstanding subsection (1) of this section,—
(a) A person who is not a member of Parliament may be appointed and may hold office as a member of the Executive Council or as a Minister of the Crown if that person was a candidate for election at the general election of members of the House of Representatives held immediately preceding that person's appointment as a member of the Executive Council or as a Minister of the Crown but shall vacate office at the expiration of the period of 40 days beginning with the date of the appointment unless, within that period, that person becomes a member of Parliament; and
(b) Where a person who holds office both as a member of Parliament and as a member of the Executive Council or as a Minister of the Crown ceases to be a member of Parliament, that person may continue to hold office as a member of the Executive Council or as a Minister of the Crown until the expiration of the 28th day after the day on which that person ceases to be a member of Parliament.
Existing ministers can continue as ministers for 28 days after election day. People can be appointed ministers and continue to hold tenure for up to 40 days, if they were a candidate in the election but have not yet formally come into office.
In previous government transitions under MMP, the determination of Prime Minister and new ministerial positions was settled after MPs came into office. However, with the rush to get John Key to APEC, these arrangements are being expedited and he will be appointed before then - perhaps even on the weekend. In a formal sense, that means he will be representing New Zealand as the most senior member of our Executive, but not yet as a member of our Parliament!


Will de Cleene said...

And if Goff becomes leader of the Labour party today, does that make him the interim PM?

Dean Knight said...

Been thinking about this, but I think the statements so far have intimated that the change is to the leader of the Labour Party, not to the formal constitutional role of PM. There's no constitutional requirement I'm aware of that says the PM be the "leader" of the party, but it has been customary.

However, if immediate change to leader and PM is intended, then the appointment (albeit temporary) needs to be formally given effect to by the G-G. And that might require consideration of whether such changes fall within the scope of the caretaker principle, that is, can the present PM legitimately advise the G-G that Goff is to be appointed as PM until Key takes over when she does not command confidence? Or can the GG exercise his own reserve power to do so?

I'm not sure either way of the propriety of that, and don't know if it has arisen before.

Will de Cleene said...

Faster than the speed of convention. Hmm... we live in morally hazardous times.

Nigel Kearney said...

Can John Key inform the Governor General he has the support of a majority of the House, if the House has no members?

Dean Knight said...

If you see the earlier post on transitions, you'll see the assessment of confidence is necessarily prospective, not contemporaneous, ie based on assessing the outcome of the first confidence vote in the House.

Anonymous said...

I noticed that on the day the new Government was formed, the Governor-General spoke about some of these issues in a speech: http://www.gg.govt.nz/node/945

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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