What is the waka-jumping law and why hasn't Meka Whaitiri's defection triggered it?

  • 05/05/2023

A law expert says Speaker of the House Adrian Rurawhe's interpretation of parliamentary rules has allowed Meka Whaitiri to remain in Parliament as an independent MP despite her defection from the Labour Party.

Whaitiri this week unexpectedly announced that she had quit Labour and would stand for Te Pāti Māori at the next election.

It was thought that the waka jumping rules would result in her being expelled from Parliament, but Rurawhe said she could remain.

What is the 'waka-jumping' or 'party-hopping' law?

The Electoral (Integrity) Amendment Bill passed in September 2018 and had the support of Labour, NZ First and the Greens while National and ACT opposed it.

The controversial legislation more commonly referred to as the "waka-jumping" law, is designed to prevent MPs from ditching their party during a parliamentary term and was agreed to as part of coalition negotiations between Labour and New Zealand First.

The legislation automatically vacates an MP's seat if they deliver a signed, written notice to the Speaker resigning from the party they were elected for. The reasoning is this maintains the proportionality of representation in Parliament.

Why has the Speaker not invoked the waka-jumping law for Whaitiri?

Rurawhe on Wednesday informed Parliament that he had not received a letter from Whaitiri to state that she was leaving the Labour Party to join Te Pāti Māori.

However, on Wednesday morning, Whaitiri told reporters she had officially notified the Speaker she had resigned from Labour to join Te Pāti Māori.

Rurawhe informed the House that "under standing order 35.5, the honourable Meka Whaitiri is from today regarded as an independent member for Parliamentary purposes".

Rurawhe said there were "very specific events" that would be required by the law to trigger Whaitiri's ejection and "I can confirm to the House that those events have not happened".

"I think it would be a dangerous situation for the speaker of the house to start interpreting things that are clearly not being officially and submitted to me. Now, as I began my ruling, members can say whatever they like outside of this house but unless they inform me in the correct way by sending me a signed letter that is the case, I cannot act on it," Rurawhe said.

Two separate sets of parliamentary rules complicate issue - law expert

Otago University law professor Andrew Geddis told Checkpoint the issue was complicated because there were two separate sets of rules running side by side.

"The first set is the Electoral Act rules, which are law, statute law, which govern when a MP who leaves their party also vacates their seat, loses their seat in Parliament.

"Then alongside those are the sort of standing orders, Parliament's own internal rules, which govern how MPs are going to be treated for internal parliamentary purposes and internal processes of the House."

The two sets of rules had led to two different outcomes, which is what had led to the confusion, he said.

Statute law was the most significant as the law of the land, he said.

It required an MP to send a notice to the speaker saying that they had either quit a party or that they wanted to be an independent or a member of another party, Geddis said.

The speaker had determined that that notice must be very specific, he said.

"It basically has to say something along the lines of 'I have quit my party', or 'I want to be an independent'. And because the MP's communications here didn't meet that it basically simply said 'I'm gonna start voting against my party', or aside from my party, it didn't meet the legal requirements to vacate the seat. So that's why she gets to remain an MP."

Whaitiri seemed to have managed to extricate herself from Labour whilst not invoking the waka-jumping legislation and remaining an MP, he said.

The speaker's interpretation seemed to be that the act was not invoked unless the MP's specific words were "I have resigned from Labour or I want to be an independent", Geddis said.

As far as the speaker was concerned Whaitiri was now an independent MP, he said.

"Because the speaker says 'When it comes to standing orders in applying the internal rules of the House I will take a much looser view of things, a much more pragmatic, actually what's happening on the ground view of things'."

That meant under standing orders the speaker would recognise Whaitiri was no longer part of Labour, Geddis said.

"[Standing orders] are a different set of rules to the statute which actually governs whether she can be an MP or not - different rules are applied in different ways in the speaker's eyes."

Parliament's speaker has said he cannot release his correspondence with Whaitiri, but she could if she wished to do so.

But Geddis said he believed the speaker should publicly release any correspondence from Whaitiri given it was a constitutional issue.

Whaitiri was very forthright in her media conference saying that quit Labour and was now a member of Te Pāti Māori, he said.

"And then when she went to the speaker she was far more circumspect and basically said 'just to let you know Labour can't cast my vote anymore and I'm going to be sitting apart from them'."

Whaitiri actually voted in favour of the waka-jumping law but now that she wished to leave Labour seemed to have found a loophole, he said.

"She seems to have found this by luck or good design, this way around the rules that she voted should apply, in a way that allows her to remain an MP but also get recognised as being an independent.

"She gets to have her cake and eat it too - even though she voted for law that said this shouldn't happen. You know, go figure."

Who is Meka Whaitiri?

Until her announcement, Whaitiri held a number of portfolios including Customs, Cyclone Recovery minister for Hawke's Bay, Food Safety and Veterans' affairs.

In 2018 Whaitiri was stripped of her ministerial responsibilities after then prime minister Jacinda Ardern lost confidence in her after allegations of an altercation between Whaitiri and a staff member.

In 2020 Whaitiri made a comeback to the executive as a minister outside of Cabinet.

At the time, Whaitiri said she was "honoured to get a callback" but was "under no illusions about the enormous scrutiny" she would remain under.

How did Whaitiri resign from Labour?

In a move which surprised Labour, Whaitiri on Wednesday officially confirmed that she had quit Labour and would stand for Te Pāti Māori at the next election.

At an event at Waipatu marae in Hastings, Whaitiri said the decision to cross the floor was not an easy one, but was the right one.

Whaitiri plans to stand for Te Pāti Māori in the Ikaroa-Rāwhiti seat she has held for Labour since 2013. She commanded a comfortable margin in the last election and is expected to be able to win it again.