Nearly three years on from an inquiry into bad behaviour from MPs, plans for an independent conduct commissioner are out for consultation. But one party has already indicated its steadfast opposition, while politicians under the spotlight could simply refuse to take part

A watchdog to handle complaints about MP misconduct has moved closer to reality – but politicians and parties will be able to opt out from the process, raising questions about its effectiveness.

On Tuesday, Speaker Trevor Mallard released a long-awaited proposal for an independent commissioner to receive and investigate complaints related to the behaviour of MPs.

The recommendation was among the key components of a May 2019 report into bullying and harassment on the parliamentary precinct, which described a perceived lack of accountability for politicians’ conduct as a key concern among staff.

But progress on the commissioner appeared to have stalled, with unions last year expressing frustration to Newsroom at the slow pace of progress.

Nearly three years on from the initial review, Mallard has now begun consultation on the establishment of an “Independent Person” to handle complaints about MPs.

The person would be appointed on the advice of the Parliamentary Service Commission, made up of representatives from each political party and chaired by the Speaker, and following consultation with party leaders.

Former or current MPs would be ineligible for the job, with the person chosen tasked with receiving, investigating and reporting on complaints about MP conduct in breach of Parliament’s recently adopted “behavioural statements”.

If the person decided an inquiry was needed, they would need to inform the complainant, the accused MP and their party leader, with the MP in question given 10 working days to provide a response.

The watchdog could then produce a report with their findings and a conclusion on whether the MP had broken the behavioural rules. If the conduct was serious enough, the report could (with the complainant’s agreement) go to the Speaker and be published under the rules of the House.

If systemic problems related to an organisation’s operations were discovered during an inquiry, those issues could also be reported to a party leader or a complainant’s employer.

Trevor Mallard said former MPs could not be appointed as a behaviour watchdog to avoid the perception of an old boys’ club. Photo: Lynn Grieveson

Speaking to Newsroom, Mallard revealed MPs or parties could choose not to cooperate with an inquiry into misconduct, with no consequences beyond reporting of that fact.

However, he did not believe that would undermine the system, saying public disclosure of their behaviour and unwillingness to take part would have meaningful consequences.

“The United Kingdom Parliament…has the ability to pass a motion to expel a member – we don’t do that. I think we’re too small, I wouldn’t want that to happen.

“But, especially within a major party, I would have thought someone who has a specified negative report, I wouldn’t put much money on them being re-selected.”

He did not want to prescribe which types of behaviour would merit a report being published by Parliament, but said it would likely cover multiple occurrences of misconduct by an MP rather than one-off incidents.

Mallard said the delay in finalising the proposals was in part due to the need to “socialise” the concept with sceptical MPs concerned about the constitutional propriety of the role.

It would be important to find the right person for the job, with former MPs ruled out due to the possibility they would have “political bias or an axe to grind”, as well as the need to avoid the perception of an old boys’ club.

Parliamentary Service chief executive Rafael Gonzalez-Montero and Clerk of the House David Wilson indicated their support for the proposal in an interview with Newsroom.

Wilson believed the role would more easily bring MP misconduct to light and could be effective despite the ability of politicians and parties to opt out, saying: “Probably the most significant sanction is public opinion.”

While it was possible there would be some initial cynicism about the role, Gonzalez-Montero said the parliamentary agencies would need to demonstrate they could be trusted.

“It says we can’t trust the people that we elect, we can’t trust the voters to hold them accountable, so an unelected person will become one of the most powerful people in Parliament.”
– ACT leader David Seymour

ACT leader David Seymour told Newsroom his party strongly opposed the proposal, which he viewed as a minor version of attacks on democracy taking place around the world.

“It says we can’t trust the people that we elect, we can’t trust the voters to hold them accountable, so an unelected person will become one of the most powerful people in Parliament.”

Seymour said former MPs such as Todd Barclay and Jami-Lee Ross had previously faced consequences for misbehaviour by failing to be re-elected, which was preferable to “an unelected witchfinder-general” deciding whether or not to take on inquiries.

Labour Party chief whip Kieran McAnulty said the caucus had not yet formally decided whether it would support the proposal, but a position would likely be formed at its caucus meeting next week.

National senior whip Chris Penk said the party’s MPs would also discuss the proposals at their next caucus meeting, “with a view to confirming our support for the role being established”.

“Clearly it’s important that everyone who works in this place has an environment in which they feel safe – as with all Kiwis in their respective workplaces, of course – and National is strongly committed to that.”

A spokesman for Te Paati Māori said the party had no comment at this stage, but would provide feedback later in the week once it had properly engaged with the proposals.

The Green Party did not respond to a request for comment, but has previously expressed support for the idea of an independent watchdog.

PSA union organiser David Coates told Newsroom the organisation had not yet consulted its members on the proposals, but it was positive to see progress on the establishment of a watchdog.

Mallard said the opposition of ACT was regrettable but “not something which stops the show”, as unanimity was not required to move ahead.

The appointment of a person would also not require near-unanimity – the convention for determinations by Parliament’s business committee – although in practice any appointee would need to have the confidence of MPs from across the House.

Barring any significant problems raised during the consultation process, Mallard said the role could be established fairly swiftly after the May 10 deadline for submissions, while it could be funded within existing parliamentary resources.

* In his previous capacity as Press Gallery chair, the author of this article was among the members of a cross-parliamentary Code of Conduct steering group which last term agreed a code of conduct for those on the precinct.

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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