Former Clerk of the House and expert on Parliament, David McGee, has done a submission on the Electoral (Administration) Bill – mainly focusing on whether the Electoral Commission should be an Officer of Parliament.
I suggest to the Committee that they should get advice from Mr McGee, and am glad they did – even though in this case his advice differs from my preference.
McGee says in his submission:
In my view there is no question as to the Electoral Commission being important enough to warrant Officer of Parliament status. The constitutional arguments for that status that have been made to the Committee are compelling. Nor would I see creating the Electoral Commission as an Officer of Parliament departing from the principle of conferring that status jealously. The fact that the Commission was an Officer of Parliament would not open the door for others to obtain that position inappropriately.
But he sees pragmatic, rather than constitutional, problems:
- The Commission delivers a programme – organising a general election, unlike other Officers of Parliament that are more Auditors or checks.
- It may politicise the role of Speaker (as responsible Minister) further, and also the Speaker can not be held responsible for their performance through oral questions.
- With three Commissioners, would the Commission itself or the Commissioners be the actual Officers of Parliament – not well suited for a board model.
On the assumption the Electoral Commission remains a Crown entity, McGee looks at the proposed method of appointment:
I consider that (if a mandatory judicial appointee is not to be retained) the members of the board should be appointed on the recommendation of the House. (This would replace the consultation proposal in new section 4D(4)). There is nothing inconsistent in an ICE or non-Officer of Parliament being appointed in this way. The Independent Police Conduct Authority and the Judicial Conduct Commissioner are appointed following a resolution of the House, yet neither is an Officer of Parliament.
Appointment by Parliament is preferable to appointment by Minister only.
The fact that appointment is statutorily made on the recommendation of the House does not in itself mean that that recommendation will be unanimous or even bi-partisan. It can still occur on a straight majority vote. But, in practice, this has not been the experience with such appointments. Prior consultation has smoothed the way for non-contested resolutions. It has been suggested to the Committee that there be provision for a “super-majority” of 75% agreement written into the legislation. This would certainly ensure that any appointee had the confidence of the larger parties at least and is consistent with other super-majority provisions (the reserved provisions) in the Electoral Act.
My strong preference is for a double super-majority of 75% of the parties and 75% of the MPs.
But I do not favour this. I think that the House (through the Standing Orders Committee) has an opportunity to develop a convention – essentially a protocol – on non-Officer of Parliament appointments which are made on the recommendation of the House. After all if an appointment is important enough to involve the House there should be some expectation that an attempt will be made to achieve consensus on the appointment. As long as this device is not over-used (and achieving consensus is not easy and could stymie the appointments process if attempted too frequently) it is worthwhile having in place an agreed process for consultation on potential appointees and an understanding that a name will only be proposed if there is a considerable element of cross-party (not necessarily unanimous) support.
This is an interesting alternative. I did not realise that at present there is no requirement for agreement (beyond a simple majority) for roles such as the Ombudsman, and Auditor-General.
While such a protocol would be useful, I don’t see it as an adequate substitute for an actual legislative requirement of wide-spread parliamentary agreement.
The reason for this is it is much harder to repeal law than it is to ignore a protocol. Up until 2007 there was a protocol that major changes to the Electoral Act were subject to bipartisan consultation and agreement. Labour annihilated this protocol in 2007, and while Simon Power has reinstituted it, I would rather have a legislative safeguard to bind his successors.