Written evidence submitted by

David Wilson, Clerk of the House of Representatives, New Zealand (PVG 12)

Thank you for the opportunity to make a submission to your inquiry concerning voting by proxy.

The New Zealand House of Representatives has two different systems for voting by proxy—one for our party voting procedure, and one for our personal voting procedure. The former is overwhelmingly the more frequently used, with thousands of party votes to the dozens of personal ones in the three year life of a parliament. I have included description of both for the committee’s information, as well as a few other matters that may be of interest to the committee.

Party votes and proxies

Most votes in the New Zealand House of Representatives are conducted using the party vote procedure, as detailed in Standing Order 143 (see Appendix 1). This procedure was adopted as part of our transition to a Mixed Member Proportional (MMP) electoral system—and attendant multi-party Parliaments—in 1996, and was based on the system of collective voting used in the Netherlands.[1]

The party vote procedure allows a party leader or whip to cast a party’s votes orally in the Chamber. Party votes are cast en bloc, and can include the votes of all members of a party who are present anywhere in the parliamentary precincts—not necessarily in the Chamber or lobbies—along with proxy votes for members who are absent from the precincts.[2]

Each party’s proxy votes are limited to 25 percent of the party’s parliamentary membership, rounded up to the nearest whole number. If the number of a party’s members outside the precincts exceeds this limit, then the party must reduce its voting numbers accordingly. Leaders and senior whips hold a standing authority under Standing Order 154(4) to exercise a proxy vote for all members of their party, unless a member expressly directs otherwise.

The party voting and the attendant proxy voting procedure have over the last 22 years become well-established features of the effective conduct of House business. Proxy voting achieves much the same objective as pairing did previously—allowing members to attend to public business in relation to their office—but in a manner more suited to a multi-party environment.

Administration of proxies

Parties administer their 25 percent proxy allocation and the presence of their members in the parliamentary precincts internally. There is no requirement to publish lists of who is present and who is not, or whose vote is being exercised by proxy. It is assumed that members casting party votes act truthfully and honourably.

Commentary on party voting and proxies in the 2017 Review of Standing Orders

During the 2017 review of Standing Orders, the Standing Orders Committee considered the matter of party voting and proxies, and specifically the testing of parties’ compliance with the 25 percent proxy limit. There was concern among some members that it was difficult to test whether 75 percent of a party’s members were present at Parliament. Although there is provision for the Speaker to allow a personal vote following the contestation of a party vote result, that procedure has never been used.

The committee concluded that a personal vote following a party vote would not satisfy questions over compliance with the proxy limit, due in part to the significant difference in the proxy procedures for party and personal votes (see Personal votes and proxies below). The committee did not create any new procedures to test the presence of members on the precinct, but noted that the Speaker has the authority to inquire into members’ compliance with the Standing Orders, including in connection with the casting of party votes. I have included the relevant excerpt from the committee’s report for your reference (see Appendix 2).

Speaker’s permission to be absent

During a sitting under urgency in 2013, a member was required by her party to be present on the parliamentary precincts so that it could cast its full party vote, as its proxy allocation had been exhausted. This contributed to the creation in 2013 of a sessional order providing for members to seek permission from the Speaker to be absent from the parliamentary precincts on account of, among others reasons, a family cause of a personal nature. This provision was included in the House’s Standing Orders in 2014 (Standing Order 38—see Appendix 3). In recommending this provision be incorporated into the Standing Orders, the Standing Orders Committee made clear that the provision was intended to cover breastfeeding and “care for an infant or child”. The votes of members who are granted such permission by the Speaker are not counted towards their parties’ 25 percent proxy vote limit (Standing Order 155(3)).

Since its creation in 2013, the provision providing for members to seek permission to be absent has been used a handful of times.

Personal votes and proxies

Personal votes, which are the equivalent of divisions in other legislatures, are held rarely, and almost always on conscience issues. Notice of personal votes usually occurs well in advance through discussions at the Business Committee.

There is no general authority for proxy votes during personal votes. A proxy for a personal vote must be issued from one member to another. The proxy must record the member’s name, the name of the member to whom it is given, and the period of time or item(s) of business for which it is given. A proxy may be open in character, applying to all business for an indefinite period. Finally, it must be signed and dated by the member giving it. There is no limit on the number of proxy votes when personal votes are conducted.

A proxy does not have to direct the holder to vote on a particular side of a question. If it does, however, it must be exercised only as authorised. Proxies can be cancelled or amended at any time, including verbally, but any such changes must be notified directly to the proxy holder. If there is a dispute about whether a valid proxy exists or how a proxy was exercised, the Speaker decides the matter. During a vote, the Speaker will accept the word of the member exercising a proxy. In one recent example, the Speaker required four members, all from different parties, to produce their written proxy authorisations to him, after receiving two conflicting pieces of information about one specific member’s proxy.[3] Ultimately, the deliberate misuse of a proxy would constitute a contempt.

Personal votes exercised by proxy are recorded in the journals of the House, with a “(P)” inscribed following the member’s name.

Select committee voting

There are no proxy votes at select committee meetings. Members must be physically present at meetings to cast votes, although parties may arrange temporary replacements for members that are absent. A member from one party can replace a committee member from another party, provided the whips for both parties have agreed to this.

I hope the above information is of assistance to the committee in its consideration of procedures for voting by proxy. I am happy to provide further information to the committee if it so desires.

7 March 2018

      Appendix 1 - Clerk of the House (New Zealand)

I.18A

REVIEW OF STANDING ORDERS 2017              I.18A

speaking in the House. When a member chooses to do so, they must provide a brief translation for the House.

We are not aware of any occasions when members have sought to address the House at length using the language of one of the Pacific territories within the Realm of New Zealand. However, we would support this practice as long as an accurate interpretation is provided so that other members can understand the remarks. Members wishing to speak in another language should contact the Speaker in advance to discuss arrangements. For example, it might be appropriate for additional time to be allowed so the member can provide an interpretation.

Voting

Personal votes following party votes

Since the party vote procedure was introduced in 1996, there have been occasional calls for the Speaker to use Standing Order 144 to permit personal votes to test whether party votes have been cast properly on the basis of the number of members in the precinct at the time. However, the consistent approach has been that the closeness of a vote result is not by itself enough to trigger Standing Order 144; rather, there would need to be something else that might make a material difference.11 This led to uncertainty about whether the rule would ever apply. The House already has procedures in place to correct errors and mistakes in voting, including where confusion arises concerning the result of a vote.12 Misleading the House through the improper casting of votes would potentially be a contempt, and members with any evidence of such conduct should draw it immediately to the Speaker’s attention.

Overall, the use of personal votes would not provide conclusive evidence about whether party votes had been properly cast. The failure of a member to register a vote in the lobbies does not prove that the member was absent from the precinct at the time of a party vote several minutes earlier. Conversely, a member who is absent from the precinct, but still nearby, could potentially reach the lobbies within the seven minutes available.

Proxy rules for personal votes and party votes are not the same. First, the limit on proxy votes applies only during party votes—there is no limit on proxies during a personal vote. Second, the general authority that whips exercise to cast proxies during party votes does not apply during personal votes, which means that for personal votes members need to give specific authority so proxies can be cast on their behalf. Moreover, a number of complexities would need to be taken into account, including the absence of members with permission from the Speaker (who are not counted towards the proxy limit), or who are outside the precinct on parliamentary or approved business (in which case they are regarded as in attendance). The use of personal votes for this purpose thus could undermine confidence in the party vote procedure by not taking account of these complexities. Moreover, the need to recognise the above factors in the context of each personal vote conducted under this procedure could mean the result of a vote might take some time to discern, which could disrupt or cast doubt on the outcome of the House’s proceedings.

We have discussed this matter at length, and particularly considered whether to replace Standing Order 144 with a new provision empowering the Speaker to require information so

11     Speaker’s Ruling 77/1.

12      Standing Order 152.

15

I.18A              REVIEW OF STANDING ORDERS 2017

as to be satisfied that a party vote or proxy vote has been properly cast. However, we have not reached agreement about this. The voting provisions would benefit from being rewritten so they are clearer, and especially to separate the different procedures for casting proxies during party votes and personal votes. We suggest that this occur during the next review. In the meantime, we note that the Speaker already has the ability to ask members about matters relating to compliance with the Standing Orders or potential matters of privilege, including in connection with the casting of party votes.

SITTINGS OF THE HOUSE

CHAPTER 2

SITTINGS OF THE HOUSE

44