The Electoral (Integrity) Amendment Acts are two acts of Parliament by the New Zealand Parliament which force the expulsion of members of the New Zealand Parliament who have resigned from or been expelled from the political party for which they were elected. Two such acts have been passed: the Electoral (Integrity) Amendment Act 2001 (see § 2001), which expired in 2005, and the Electoral (Integrity) Amendment Act 2018 (see § 2018), which remains in force.
The New Zealand Parliament is elected using mixed-member proportional voting and the Electoral Act 1993 provides for the election of list members on behalf of registered political parties. Particularly in the 1990s, repeated instances of party switching led to criticisms that the proportionality of parliament as determined at a general election had been disturbed. The Electoral (Integrity) Amendment Acts were therefore attempts by the legislature to control its members' affiliations and votes in a way that conformed to the most recent election outcome. The New Zealand political parlance of "waka-jumping" has given rise to the colloquial description of the acts as the "waka-jumping laws."
The acts operate differently depending on whether the expelled member represents an electoral district or if they were elected on a party list. The expulsion of an electorate member triggers a by-election; expelled list members are simply replaced by the next available candidate from their former party's list. In either instance, the Speaker of the House must make a declaration expelling the member. To date, two such declarations have been made. Former ACT MP Donna Awatere Huata was expelled in 2004 under the 2001 Act, while former Green MP Darleen Tana was expelled in 2024 under the 2018 Act. Despite the acts being in force, other members and parties have conducted political manoeuvres to enable them to change parties or to be political independents without being expelled.
Legislative features The current law, the Electoral (Integrity) Amendment Act 2018, inserted six new clauses into the Electoral Act 1993. Section 55A states that the seat of a member of Parliament (MP) becomes vacant when they cease to be a parliamentary member of the political party for which they were elected. This is considered to have occurred in either of the following scenarios:
The MP delivers a written notice confirming that they have resigned their parliamentary membership of the party for which they were elected, or if they wish to stand in Parliament as an independent MP or a member of another political party. This rule does not apply to MPs elected as independent members. The defecting MP's parliamentary party leader delivers a notice confirming their resignation or expulsion to the Speaker of the New Zealand House of Representatives. At least two-thirds of the party caucus must agree to the notice being given. The provisions of the Electoral Act 1993 which concern vacancies apply. Electorate MPs are replaced through a by-election (section 129). List MPs are replaced by the first available member on their original party's list (section 134).
The two Electoral (Integrity) Amendment Acts feature some minor drafting differences. In addition, the 2001 Act included a sunset clause so that it would automatically expire at the 2005 general election. Such a clause was not included in the current version of the legislation.
Electoral (Integrity) Amendment Act 2001
Background
Since New Zealand adopted proportional representation ahead of its 1996 general election, party switching (or waka-jumping) had been criticised for disturbing the proportionality of parliament as determined at a general election. Previously, party dissidents had simply served as independents. However, in the 44th Parliament (from 1993 to 1996) and 45th Parliament (1996 to 1999), 22 MPs defected to other parties. The Alliance, a party which had been formed by Jim Anderton's defection from Labour to NewLabour in 1989 and had been disadvantaged by the defection of Alamein Kopu in 1997, supported tighter controls on party switching. The Labour Party was also in favour. Deputy leader Michael Cullen introduced legislation to forcibly expel party switching members in October 1997, but a 5–5 split on the electoral law committee prevented the bill from progressing further.
The two parties jointly campaigned at the 1999 election for tighter controls on party switching which were soon progressed by the new Labour–Alliance coalition government. In the 1999 Speech from the Throne, the Governor-General announced on behalf of the new government:My government recognises that there is deep public concern with a number of aspects of the operations of our political system in recent years. In particular, my government believes that the public is not prepared to countenance any repetition of the level of defection by Members of Parliament from their parties which has occurred in the last two parliaments. Accordingly, legislation will be introduced to provide that, for this and the next parliament at least, such a practice will be outlawed. Members of Parliament will, therefore, be reminded of the obligations they have to the people of New Zealand when they seek and gain election under the banner of a political party. —Michael Hardie Boys, Speech from the Throne (1999)
Legislative history
The described legislation—the Electoral (Integrity) Amendment Bill—was introduced by associate justice minister Margaret Wilson the next day, 22 December 1999, and sent to the justice and electoral committee in a 64–55 vote. One Labour member was absent. It was the first bill debated in the new parliament and her speech on the bill was Wilson's first given as a newly elected MP. Labour, Alliance, New Zealand First, and United members were in support, while National, ACT, and Green members were opposed. Speaking against the bill, National MP Simon Upton acknowledged the bill's attempt to give greater weight to parliamentary proportionality over other considerations but stated: "that is, of course, not an absolute principle. The 5 percent threshold, for one, and the prospect of a by-election, for another, mean that proportionality is compromised... We have to weigh [proportionality] up against some other principles [such as] the importance of allowing political parties to evolve and allowing electoral systems to evolve [and] the freedom of speech and conscience." Anderton, now deputy prime minister, addressed dissonance between his departure from Labour while remaining in parliament and his support for legislation that triggered compulsory expulsions, saying his was "a decision made in a totally different constitutional environment" to Kopu's.
The "teeth" of the bill and its ability to actually expel dissident MPs was debated. Political journalist John Armstrong noted that because, under the proposal at the time, members must write to the Speaker giving notice of their resignation from their parties that members like Kopu could avoid expulsion simply by refusing to do that. Legal advice from the solicitor-general John McGrath said trying to strengthen the bill to secure non-voluntary resignations might cause it to no longer be consistent with the New Zealand Bill of Rights Act 1990. The government worked with New Zealand First, which had also been subject to many defections in the previous parliament, to address these shortcomings and secure that party's ongoing support. The outcome was that party leaders would be able to write to the Speaker with the support of two-thirds of the party's caucus, forcing the expulsion of a member.
The bill began its second reading on 9 November 2000, before the deal with New Zealand First had been completed, when National whip Gerry Brownlee won the consent of Parliament to have it promoted up the order paper. The second reading was completed under urgency on 20 December 2001 (officially recorded as 18 December in Hansard); the committee stage (wherein the amendment negotiated with New Zealand First was officially agreed) and third reading were held immediately afterwards. Speaking in the debate, Green co-leader Rod Donald addressed New Zealand First leader Winston Peters' apparent change of heart by quoting one of Peters' old press releases: in 1996 he had said "Members of Parliament joining New Zealand First or any other political party without resigning and seeking a new mandate is consistent with constitutional precedent. MPs have to be free to follow their conscience. They were elected to represent their constituents, not swear an oath of blind allegiance to a political party."
The final vote was 64–54. Two ACT members were absent and the sole United member Peter Dunne withdrew his earlier support.
Implementation The Electoral (Integrity) Amendment Act 2001 came into force on 22 December 2001, the second anniversary of its introduction and the day after it received the Royal assent. Despite the strengthening of the bill in the committee stage, almost immediately MPs found ways to work around its provisions. The Alliance fractured in 2002 over New Zealand's involvement in the War in Afghanistan and Anderton formed a new party, the Progressive Party. To avoid triggering the legislation he had endorsed, Anderton nominally remained leader of the Alliance within parliament even while campaigning as the leader of the Progressives; he struck a deal with Laila Harré, who led Alliance members who did not follow him, wherein she would not "publicly lay claim" to the Alliance leadership. National leader Bill English called the arrangement deceitful; Anderton denied accusations of waka-jumping because he still supported the government. Prime minister Helen Clark responded by calling an early election.
In the subsequent term, Labour MP Tariana Turia resigned from her party and the parliament in 2004, forcing a by-election where she was re-elected as a candidate of the Māori Party. ACT attempted to expel list MP Donna Awatere Huata in 2003; after a 10-month legal battle the Supreme Court declared in 2004 Awatere Huata had "distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election" and permitted her expulsion to proceed. It was reported that National threatened Maurice Williamson with the Act in 2002 and 2003, but it was conceded that this was unlikely in practice.
Expiration and attempted reinstatement The Act expired at the 2005 New Zealand general election as its sunset clause came into effect. The reintroduction of the Act was part of the confidence and supply agreement formed between Labour and New Zealand First after that election. A replacement Electoral (Integrity) Amendment Bill was moved on behalf of the deputy prime minister Michael Cullen on 6 December 2005; it was sent to the justice and electoral committee in a 61–60 vote. Labour, New Zealand First, United Future and the Progressives were in favour; National, the Green Party, the Māori Party and ACT were opposed. The new bill was proposed without an expiry date.
A legal opinion from solicitor-general Terence Arnold reviewed the bill's compliance with the New Zealand Bill of Rights Act 1990 (BORA). Arnold's view was that the bill made prima facie infringements on the rights of members of Parliament to freedom of expression and freedom of association. However, he stated that arguments made by the Supreme Court the previous year meant although "it can be argued that the Bill should protect 'legitimate dissent' by members in respect of their parties and, to the extent that it does not, it is BORA inconsistent, on the basis of Awatere Huata, the better view is that the Bill is consistent with, and does not breach, BORA." After select committee consideration of the bill, United Future removed its support for the bill and the attempt to reinstate the Act failed.