Legal Beagle by Graeme Edgeler

When you sue someone, you have to serve the first set of documents on them personally - literally hand them to them, or place them down in their presence and clearly bring them to their attention. They have to provide an "address for service" for later documents (usually their lawyer), but for the first set personal service is required, unless you get express agreement (which you often do).

Process serving is something that many young lawyers get to experience. There are times when you need to hire an expert, but a common job for young lawyers, especially in small practices, is to serve proceedings in cases where it won't prove too difficult, and as the tradition is that they get to keep the service fee, it's a nice bonus. Which is nice. I've effected personal service a couple of times. I rang up in advance and made an appointment with both. One was expecting me, and other was away from his office. I read the paper, and a copy of Salient (this one was a staff member at Victoria University), and after spending an hour or so there, returned the following day, during which I walked around the department until I found him (having printed off their photo from the uni website). I don't think they were being difficult, so much as fitting the profile of a stereotypical absent-minded professor.

But, because of parliamentary privilege, service on a member of Parliament can be more diffcult.

In 2003, Race Relations Commissioner Joris de Bres gave a speech in which he compared the European Settlers of New Zealand to the Taliban. Murray McCully took offence, and complained to the Human Rights Commission (of which de Bres was a member) and then to the Human Rights Review Tribunal. As part of that hearing, de Bres claimed that he had a statutory immunity from being taken to the HRRT for what he said as part of his job. Rather than have this complex legal question determined by the Tribunal, de Bres's QC sought to have that legal question decided in advance by the High Court. To do this, the application had be served on McCully, who in his now sadly departed email column, told the story of the young lawyer from local Wellington firm Brandons (don't ask me how I recall this detail because I have no idea), who was tasked with filing and serving the documents. The lawyer went down to McCully's office at Parliament, and although McCully may have been tempted to allow him to serve him in contempt of Parliament, he instead sent the lawyer back from whence he came (there may have been an apology involved), and told him to telephone through, during which a time was arranged for McCully to leave Parliament grounds to be served, which I understand is the usual practice. I understand that the Backbencher is often used, but McCully tells of just going outside the gate in that instance.

Which brings us to Andrew Little and Trevor Mallard, who have recently been sued by Judith Collins in defamation. Collin's solicitor's have apparently written to Little and Mallard asking for their agreement to serve their lawyers, rather than them personally. This is common practice, but as is their right, they are insisting upon personal service. I have never been sued, but as being served is probably the part of it that is the most fun, who can blame them?

The Herald reports:

Mr Little said the minister would need to hire process servers to track him down outside of parliament grounds and issue him with the papers.

And Stuff notes:

Little said if Collins wanted to pursue the matter she would have to arrange a ''process server'' to track down the MPs and physically hand them papers.

''The letter is somewhat threatening. It says having to serve you can be inconvenient because these guys tend to be pretty thuggish kind of characters.''

Papers cannot be served on MPs in Parliament so they would have to be tracked down outside of their workplace.

I would bet quite a lot of money, at quite poor odds, that while the letter might say that personal service can be inconvenient (and it might be somewhat annoying) it will say nothing about thuggish characters, and I wonder whether the transcription of Little's comments could have done with being someone differently punctuated, in order to show that the thuggish character line was Little's interpolation. But I am more interested in the claim than MPs cannot be served legal process in Parliament.

Mostly, because it simply isn't true. There is a limitation, but it's not nearly as extensive as Andrew Little appears to believe. Standing Order 407 lists as example of a contempt of Parliament:

(c) serving legal process or causing legal process to be served within the parliamentary precincts, without the authority of the House or the Speaker, on any day on which the House sits or a committee meets:

The House is currently in recess. And even when the House is sitting, or a committee is meeting, the Speaker can still give permission for service to be effected (he might, for example, allow it on a day when no committee that member is on is sitting, or on Tuesday morning before the House sits, and during which time select committee's rarely meet).

Of course, if some recently graduated lawyer turn up at their office unannounced on a sitting day, with no idea about Parliamentary Privilege they should feel free to make fun of them in an email column, but unless they're planning on being unfindable for next couple of years, it might be better to get it over with. If the case is as likely as they claim to prove embarrassing for the Minister, one might wonder why they don't want to bring it on.

Yesterday - after a bit of effort - the House of Representatives held a conscience vote on the Gambling (Gambling Harm Reduction) Amendment Bill.

When the House abandons its usual practice of voting upon party lines, or at least when it has in the past on more controversial matters, there has been some debate over whether MPs should be exercising their consciences, or the consciences of the the people they represent. And for those who don't directly represent people - list MPs - some have raised concerns about whether they should be voting at all.

I have always considered the matter admirably simple.

The reason we have political parties, and the reason our political parties take party positions is that that it enhances democracy. When parties take collective positions, voters are better placed to decide how to cast their votes in order to see their desire enacted into law. Parties seek mandates to enact policies, and the voters who vote for them give them a mandate to vote accordingly.

Now, you may feel that every MP should exercise personal judgment and cast a personal vote on every question. Or you may feel that every MP should ignore their personal judgment and cast a representative vote (what their constituents would want) on every question. But this isn't what conscience votes are about.

The philosophical underpinning of the conscience vote is that on some issues a person’s morality is so strongly in play that they should be permitted to be guided by it, rather than public opinion, or collective decision-making processes. On conscience votes, MPs don’t represent the consciences of their electorates, but act according to their own consciences. Delineating between list MPs and electorate MPs on these issues makes no sense – on a conscience vote no MP is representing anyone other than themselves.

Conscience votes deal with laws that touch upon matters that that people generally would agree it is wrong to force someone to support a view that is not their own. Few would consider it immoral that a member of Parliament might have to vote in accordance with the majority of their party caucus on whether there should be a capital gains tax, despite personal opposition. Although few (if any) votes are cast via direct representation, few would consider it wrong if a member of Parliament might have to vote in accordance with the wishes of their local community to allow the building of a sports stadium they'd personally opposed.

But on a very few issues of morality, it is wrong, indeed, it is unconscionable, to force someone to vote contrary to their views. A conscience issue is one that a party considers it would be immoral for us to collectively decide on a view and have everyone vote for it. For us as a society, a conscience vote should be something that we feel an individual MP's beliefs should not be subjugated to majority concerns.

For example, it is unconscionable to force someone to support legalisation of abortion if that person believes abortion is murder, even if their party supports it, and even if the public supports it. It is wrong to force someone to vote for the death penalty if they believe that all life is sacred, and even if we overwhelmingly support the death penalty, we cannot expect that someone who doesn't should vote for it. In short, MPs should not be put in the position of voting in a way that they consider might damn them to Hell.

There is a distinction between a personal vote - which is one cast by an individual MP - and a conscience vote. A conscience vote should be an exercise of the conscience - on something for which there is no democratic accountability.

The issues on which our House of Representatives has historically held conscience votes are matters that have historically been moral issues: abortion, the death penalty, euthanasia, prostitution, gambling, alcohol, and Sunday and Easter trading.

Some of there are still clearly moral issues for a great many people, but I'm not sure all of them still are. A the height of the prohibition movement, alcohol as a social and moral ill was a matter not unlike slavery, or the death penalty – and it was properly considered morally wrong to force someone to vote for liberalisation of alcohol laws when it might attack their moral core. about something many considered the demon drink. For many, abortion is still like that, and prostitution is like that for some, but alcohol is like that for almost no-one.

Alcohol prohibition may be a moral issue for some, but other aspects of the regulation of alcohol have long ceased being moral questions. Many consider alcohol a social ill, or even a moral one, but how many people consider the age at which one may be sold alcohol to be a moral question?

So why is it that alcohol votes are not now subject to the same democratic processes as votes on education policy or tax? Why do MPs, in respect of the alcohol-purchasing age, act according to their “consciences”, when on most other issues of social and criminal justice policy they vote according to agreed party policy or public views?

There may be more pragmatic reasons why a party may choose not to whip a vote - it might cause party disunity, or annoy a great swathe of the voting population to adopt a party policy position - but the idea that alcohol votes are an exercise of conscience is a pretense well past it's use-by date. It may now simply be an issue on which MPs have unusually strong personal views, but I doubt any of them is worried about going to Hell over it, rather, many are motivated by the same instincts they have over much other legislation: perhaps a view of the importance of personal responsibility, or a desire to minimise social harm. But in these respects, questions around alcohol aren't substantially different from many other matters, from prison policy, to road safety. If we want MPs to exercise personal judgment over this issue, rather than collective judgment, then there are dozens of other issues of social policy we could properly expect the same. It would certainly make the House a more interesting place.

In advance of the tri-ennial Parliamentary review of the election, the Electoral Commission has released its Report of the 2011 General Election and Referendum.

There's some interesting reading in it: for electoral law nerd like me, but also of more general interest. The Commission notes, for example, some of the matters it referred to the Police:

• two Broadcasting Allocation matters (plus the PM's hour)
• 63 cases of dual voting/personation
• nine candidates for failure to file election expense/donation returns (which the Commission says should be upgraded to a corrupt practice)
• 12 election advertising matters
• 11 election day concerns, including: one delivery of a flyer; five social media; one election day Broadcast; one attempted assault of an election official and damage to a polling place; one assault of an election official during advance voting; one attempted theft of a ballot box; and one display of a billboard.

The Commission notes:

Some electoral matters referred to Police are straightforward, such as dual votes or failure to file returns, and are dealt with in a timely manner. Some are more difficult and complex and the Commission is concerned about the priority the Police seem able to accord these referrals.

The Commission also makes a number of recommendations on a range of other matters, some technical, but many not. For example, it has proposed abolishing the five-yearly Maori option, and allowing those of Maori descent to change electoral roll once each Parliamentary term.

Public submissions on the Parliamentary review closed on Friday, and for those interested, my submission is copied below (although, if anything, you'd be better reading the Electoral Commission's report!). Don't worry if there's something of particular import you'd like to speak out about. The review is just the first step. The Justice and Electoral Committee will gives its view, and the Government will respond to it. Any law changes it might agree to as a result of this will go through the ordinary legislative process with further Select Committee consideration.

Submissions to the Electoral Commission's Review of MMP can still be made. The Commission is welcoming submission on that over here.

***************

Introduction

My name is Graeme Edgeler, and I am a Wellington lawyer with a particular interest in electoral law. I can be contacted at Graeme.Edgeler@gmail.com.

I thank the Committee for the opportunity to make a submission on the Review of 2011 General Election, and look forward to presenting my submission in person.

I am grateful for the Report of the Electoral Commission on the 2011 General Election and Referendum. It raises a number of issues I had intended to raise, and addresses other matters on which I have some comments.

Timing of the Maori Option

The Electoral Commission has recommended that the post census Maori option be removed, and that people of Maori descent should be permitted to change between the Maori Roll and General Roll (or vice versa) once per term.

I do not support this proposal. Such a move would create an unequal electoral system where some voters have a greater opportunity of influencing elections than others.

Many people opposed to the continuation of the Maori seats do so on the basis that the seats provide a discriminatory privilege to a class of people based on, effectively, a racial characteristic. It is a useful argument to counter this view that the Maori seats are formed on the same basis as general seats, and provide little substantively additional power. Allowing someone to switch between the two rolls at any stage during the electoral cycle would permit someone to change electorates with the intention of influencing the result: for example, to vote in a by-election, or because the polls suggest that the general or Maori electorate they may be in will have greater influence over the result.

A major rationale for the continuing retention of the Maori seats is that people of Maori descent form a distinct group worthy of representation in the New Zealand Parliament, and that those whose Maori identity manifests in a particular way should be able to exercise this collectively with others of Maori descent. This proposal undermines this argument. If it is adopted, a choice to be represented through the Maori roll will be much more able to be exercised for transient tactical reasons, and not as a choice expressing Maori identity.

I support the retention of a Maori option alongside the redrawing of the boundaries. If it is felt that people of Maori descent should be provided one option per term to change between the Maori and General Rolls, that process should only be adopted if the number of electorates are recalculated and the boundaries are also redrawn each term after that option is held.

The nomination deposit

I believe that Elections should be fought on a level playing field.  The regime by which candidates and parties receive their nomination fees back if they receive a certain level of support is unfair. It is effectively a tax on small parties, which must spend many thousands of dollars to contest the election, which the major parties ultimately get to do for free.

I submit that the nomination fee should be non-refundable. If parties do not wish to face the cost of nominating candidates in this way, an alternative means should be provided of showing local support: perhaps allowing that a candidate who’s nomination has been seconded by 50 or 100 voters in the electorate to pay no fee. Not only would this level the playing field between all candidates and parties, it would provide a positive encouragement to candidates and parties to engage with the community at a grassroots level.

Continuous disclosure of party donations

The disclosure threshold for party donations is now $15000. Parties are requires to constantly track donations made at levels lower than this to ensure that they can properly declare accumulated donations at this level, or at the higher $30,000 level at which disclosure must be made within 10 working days.

I submit that all donations over the disclosure level should be disclosed within the 10 working day timeframe. The imposition this would place on parties is not very great. There are not a great many donations between $15000 and $30000, and parties are already keeping track of them anyway. There seems to be very little – if any – reason why it is so important that the public is informed about the identity of someone who has donated $25000 to a party, but is so unimportant that they should only be told perhaps six months after the donation was made, and well after the election.

Donations protected from disclosure

The regime by which donations may be made through the Electoral Commission, while serving a legitimate purpose, should be abolished. It suffers from the same concern that is currently alleged John Banks’ 2010 mayoral campaign may have. A donor can approach a political party, ask to make a donation of $40,000 without disclosing it, and be told that the donor of donation that high must always be disclosed, unless the donation is made through the Electoral Commission. When a $40,000 donation arrives the following week through the Electoral Commission, the party gets to declare it as anonymous, but is it really? And even if it is, the perception remains that it might not be, which is itself damaging to the political system.

Enforcement

I echo the concern that the Commission raises in respect of the priority which the Police seem to accord to some investigations of alleged breaches of electoral law, whilst the investigation of simple breaches appears to work well, they seem to take an inordinate amount of time with others. It is time for someone else to be given responsibility for prosecuting electoral offences.

It would also be appropriate for political parties to be able to be charged with electoral law offences. While there will be occasions where an individual such as a party secretary is the appropriate defendant, in some cases it will be more appropriate to charge the party itself, without having to sheet home personal responsibility to a single individual.

Minor Offences

Related to the issue of enforcement is the issue of minor offending against various election rules. Much of the offending considered by the Electoral Commission is very small, and involves no attempt to obtain advantage or deceive voters. An expense return filed one day late, or an electorate newsletter that carries the name and photo of an MP but not a full promoter statement will not usually be that bad. While it is appropriate that the minimum rules are upheld, in many instances a criminal charge, or even a police investigation, will seem overkill. Decisions not to prosecute can however seem like favouritism, or having political motivation. This can undermine public confidence in the administration of elections.

I submit that consideration should be given to making some of the offences in the Electoral Act infringement offences, rather than summary offences. In some instances, it will be appropriate to split a current offence in two: an infringement offence where there is a simple breach, and a criminal offence where there is an intention to mislead or gain a corrupt advantage. For example, it might be appropriate for the following to be infringement offences:

• the simple failure to include a correct promoter statement on an election advertisement;
• the late filing of a donation or expense return.

While similar actions could be considered criminal if:

• a promoter statement was either false or left off completely, with the intention of deceiving voters;

• the late filing of a donation return was deliberately done with a corrupt motive (for example, avoiding disclosure of a large donation until after the election).

As with other infringement offences (like speeding fines or parking tickets), a person aggrieved with being ticketed could challenge the ticket in court.

The Broadcasting Act

I have submitted in support of changes being made to the Broadcasting Act to ensure a more level playing field, on a number of occasions in the past. The current system in which the level of public broadcast funding a party receives is also its spending cap is indefensible, with nothing to commend it. Banning your political opponents from advertising is about as low as things can get in a democracy, and with the limits the funding allocation imposes on minor parties (especially those outside Parliament), we’re perilously close to this.

It seems this has fallen on mostly deaf ears. If this continues, then at the very least this Committee should recommend that sub-paragraph (ii) in paragraph (c) of the definition of election expenses in s 206 of the Electoral Act should be deleted. Even if the law must allow the major parties a massive advantage in broadcast advertising, overall spending limits on each political party should be identical.

A Referendum Act

The process by which the referendum was conducted, including the disclosure of advertising and spending limits, etc. appears to have been appropriate.

I submit that the underlying structure of the Electoral Referendum Act should be adapted into a permanent law, under which all future national referendums can be conducted. If Parliament is considering holding future referendums (whether binding or non-binding) it should not have to pass a law setting out the mechanics of voting (the writ, voting, counting, advertising, registration, disclosure etc.) each time, it should simply be able to pass legislation with a contingent commencement that applies the mechanisms of a Referendums Act.

Other Electoral Commission Proposals

Party Registration

The Commission has proposed that parties should be required to have at least 500 financial members who are enrolled to vote, instead of the current requirement for there to be 500 financial members who are eligible to be enrolled to vote. It asserts that it is unaware of the policy rationale behind the current law.

The policy rationale behind allowing a party to register if it has 500 members who are eligible is that it is something that is within the knowledge we can expect of a party secretary. Each year, the Party Secretary is required to make a declaration stating that the party is still eligible to be registered. A party secretary is in a position of knowing whether the party still has 500 members who are eligible to enrol (they will know names and ages, and addresses etc.). It places a far greater obligation on a party secretary to know that no member whom they were counting has had their enrolment lapse.

The Commission has also proposed that an application fee for applications to register a party should be imposed. If there are additional costs imposed on the Commission in its processing of party registration, this may be appropriate, but the rationale offered by the Commission is misguided. Even if having a minimal fee may help “bring home to potential applicants that it costs money to meet [the legal requirements of being a registered party]” this is not a basis on which the government should ever charge a fee. A fee is appropriately charged by the government for a service if it incurs a cost that it considers is improper for the taxpayer to bear. There can be no other proper basis.

Logo Registration

I believe that candidates for unregistered parties should continue to be able to have a logo next to their name on the ballot. The Commission’s rationale that removing the logos of unregistered parties would simplify the information provided to voters on the voting paper is unconvincing. If the ballot is considered too “busy” then removing the logos of all parties, or prohibiting all candidates from having logos would better solve it.

Particularly if the review of MMP results in the removal of the one-seat rule, the incentive for some minor parties to continue to contest the party vote may diminish. There is no reason that the law should preclude a party forming with the intention of only contesting the electorate vote, and then operating in electorate races on the same basis as other parties.

I recognise the Commission’s concern about the number of spent logos that are currently on the register. The solution is not to ban all logos of unregistered parties, but to allow the Commission to remove logos if they go unused: if a general election passes and an unregistered party that has a registered logo has not nominated any candidates, the Commission should be able to remove it logo from the register.

I recognise that there is a cost involved to the Commission of registering and de-registering logos (Gazetting, and publicising the logo, for example). A fee for registering or changing a logo may be appropriate.

I would finally add that the law should permit a party that is seeking registration as a party to concurrently seek to have a logo registered. The current law, which effectively requires a second application once the first one is accepted is unnecessarily cumbersome.

Judicial Recounts

The (small) possibility that an election petition may undermine an election result is something that I have commented on in the past. I welcome the Commission’s proposal that the law be changed to ensure that this cannot happen.

I proposed to the Electoral Commission’s review of MMP that, in the event that an election petition at a general election successfully overturned the result of a seat, that the Court of Appeal should be able to reallocate the list seats, in order to ensure that the result of a general election are reflected in the resulting Parliament. I arrived at the proposal to have the matter referred to the Court of Appeal arose because of that Court’s powers in respect of election petitions respecting the allocation of list seats.

I consider the Commission’s suggestion of the High Court referring the matter back to the Commission for a reallocation to be superior. A party will still have the option of pursuing an election petition relating to that allocation if necessary, but there is no reason to require it.

The Commission’s proposal is not expressly limited only to general elections, and appears on its face to allow that the Electoral Commission could be asked to re-do a list allocation after a by-election (which, if the one-seat rule is retained, could be interesting to say the least). I do not anticipate that the Commission was actually proposing this, however the law should be made clear that a reallocation would only be permissible after an election petition arising at a general election.

Failure to file an election expense or donation return

When I first read the Commission’s recommendation, I was surprised, as making the non-compliance with these requirements an imprisonable offence seems excessive. I then considered the rationale that it offered, which is compelling. The failure to file an election expense or donation return deprives voters of information in exactly the same way as the filing of a false return does, and undermines the purpose of election finance obligations in exactly the same manner.

It would be appropriate, however, to distinguish between a total failure to comply with the obligations, and merely delayed compliance. The current rules criminalise a failure to file a return on time, but do not distinguish between a late return, and a non-existent return. A candidate or party secretary who files a return a few days late without a reasonable excuse should be recognised as breaking the law, but this should not be considered a corrupt practice. Indeed, as I note above, it may be appropriate to recognise a late filing which has had no real effect on transparency as an infringement offence, punishable by a spot fine (like speeding, rather than dangerous driving).

Election advertising

I support amendments to the law to bring the prohibitions and exemptions in the Electoral Act and Broadcasting Act into line. If some publication is exempt from regulation as an election advertisement, it should also be exempt from regulation as an election programme.

Election day “advertising”

I have always liked that scrutineers are identifiable by their party, as I think it adds to the obligation on them not to ‘misbehave’ in a polling place. I know that if a scrutineer was to ever exercise their rights under s 166 of the Electoral Act in respect of my vote, I’d want to know what party they represented in order to ensure that party never got my vote ever again. I also think that it is important that voters know who the people in a polling booth are, so that if they need assistance, they won’t unknowingly approach a party member. A scrutineer badge goes some way to this, but many voters will not know what a scrutineer is. A rosette or lapel badge is more easily recognisable.

I recognise, however, that some voters may not like there being any party paraphernalia in a voting booth, or may be intimidated by it, and am content to rely upon the Commission’s experience in recommending a balance.

I would note that if the Committee is considering banning the display of balloons on election day, it should consider whether such a ban would be a reasonable and proportional limit on free speech.

Conduct of Referendums Generally/Electronic Voting/Turnout

The Commission has proposed that future referendums should be conducted by postal ballot. It has also recommended further consideration of Electronic voting.

I oppose such measures. The shared experience of voting is an important part of fostering a democratic society. The sense of democracy as a community undertaking would be lost if we were able to stagger the election over two weeks. I very much doubt there would be more than a minimal effect on voter turnout, and I wouldn’t be surprised if the decline in civil society I think it would precipitate actually lead to decreased interest from the politically disinclined.

We vote because we think we should. Others vote because they see us vote and think they should. We vote because when we were younger our parents took us with them when they were voting and it was solemn and seemed important. We vote because there’s one day every three years when voting is what you do – what everyone does. And even though this election saw a reduction in turnout, making the day less special is not going to turn this around.

Conclusion

Thank you again for the opportunity to file this submission, and for the opportunity to present it in person. I look forward to reading the Committee’s report, and the Government’s response to it.

From the perspective of a lawyer, among the words most misused in the news media may be "loophole". It tends to be used to describe almost any piece of law that a journalist, or an interviewee, thinks is inconvenient. I often think, after hearing it used, "that's not a loophole, that was a design feature - a deliberate choice made because the alternative would be stupid". I think once I even thought "I submitted on that bill, and the reason that is that way may be because I asked them to change it!". It happens a lot, but one that particularly stands out was an occasion on a TV news show where the fact that someone's past conviction couldn't be clean-slated was a loophole. The person had received a sentence of imprisonment, and Parliament made an explicit decision to exclude such sentences from being clean-slated. Not listing sexual violation/rape in the list of sexual offences to which the Clean Slate law may never apply may be a loophole, but that wasn't.

But sometimes "loophole" is a perfectly appropriate to a law, and the donation regime in the Local Electoral Act is a wonderful example.

The rationale for allowing anonymous donations is pretty simple. If a politician doesn't know who gave them money, they can't do that person (or business, or union or whatever) any favours.

The problem arises when a donation isn't so much anonymous, as secret: known to a candidate, but kept from the public. This was the case with donations, for example, that National used to arrange through the Waitemata Trust. Someone would talk to someone in the National Party - perhaps even the leader - about making a donation, and that donor would be advised to give the money to the Waitemata Trust. Every so often, the Trust would give a bunch of money to National, and it would be declared as the donor. Party leadership often knew who was going to give the Trust money. The Trust could even tell the Party exactly who had given it money, but the donation would still properly be declared as coming from the Trust.

Problems like this one have been fixed at a National level, first with the Electoral Finance Act, and then amendments to the Electoral Act that largely copied over what that now-defunct legislation did.

Election spending and donation rules at the local government level haven't gone through that process however, and the obligations on candidates are either derisory, or unclear. I've re-read the Local Electoral Act a few times over the last few days, and reached a different conclusion each time over what obligations it actually imposes.

What follows explains what I believe is the generally-accepted approach to the obligations on candidates under the Local Electoral Act 2001 to donation disclosure:

• If a candidate knows who made a donation over $1000, they must declare it, and the donor's name and address.
• If the candidate receives a donation over $1000, and doesn't know who gave it to them, they must declare it, and record that that donation was anonymous.

• The candidate must actually know, it is not enough that they suspect a donation came from a particular person.
• That the campaign manager of a candidate knows who made a donation, but they don't tell isn't enough, because the candidate does know.
• If the bank statements of a campaign lists the drawers of various cheques, so that anyone who looked at it would know who made particular donations, but the candidate never looks, this can still count as anonymous, because the candidate doesn't actually know. This still applies even though the candidate could look at their bank statement after they filed their return, as the return would still be accurate.
• If a candidate knows a person made a donation but does not know how much that donation was, the donation will still be anonymous. A candidate could be told by someone who does know "Ring up Sam, and thank her for the donation", and still be able to lawfully declare Sam's donation as anonymous.
• If a person tells you they're going to make a donation of $40,000, and you tell them to send you some money the next week, and you receive a bank cheque for $40,000 the following week, that donation can still be listed as anonymous, because while you may be almost certain that that money came from that person, you do not actually know it did. You just suspect.

I have no idea about how much John Banks knew about the donations his mayoral campaign received from Kim Dotcom. The police will be able to investigate and get some idea. Hopefully.

It may be that they reach a pretty firm conclusion that something has happened, but still not feel they can prove actual knowledge. If so, that will be the end of it. There are two offences: the serious one - which John Banks will certainly wish to avoid - involves filing a return knowing that it is false - this carries a maximum term of imprisonment of two years, which is enough (whatever any actual sentence may be) for an MP to lose their seat. The other offence involves filing a false return without knowing it was false. Such a charge seems unlikely in these circumstances. If Banks can legally claim that the donations are anonymous, his return will be accurate, and if he can't, then it will likely be because he knew who made them. And even if such a charge could be made out, there is a six-month time limit to lay the more minor charge.

As I suggested earlier, the above interpretation isn't the only one that can be applied to the obligations in the Local Electoral Act. The disclosure obligation is:

every candidate must [set] out ... the name and address of each person who made an electoral donation [over $1000] to the candidate and the amount of each electoral donation [over $1000]...

You could read this as an absolute requirement. If Kim Dotcom was a person who made an electoral donation donated to your candidacy, he must be listed. That would be a pretty big re-interpretation.

Alternatively, you could read this as requiring:

• a list of all donors and their addresses; and
• a list of all donations, but cross-referenced in no way to those donors (Nancy, Peggy, John and Susan donated to me, and I received donations of $1500, $3000, $4500 and $1.1m)

It could even be interpreted as really lax. It's possible to read this as allowing a person who received four $25,000 donations, and who knows the names of the four people who made those donations, but who doesn't know which person made which donation to declare them all as anonymous: "Was the donation on the 12th from Sam, or Max? I don't know, I could not tell you, without checking, which I haven't done, who made that donation.".

So yeah. A loophole.

I forwarded my submission to the Electoral Commission MMP Review yesterday. Let me know what you think. You can make written submissions - which can be as little as a sentence or two - until 31 May.

Introduction

1. My name is Graeme Edgeler, and I am a Wellington lawyer with a particular interest in electoral law. I blog on the Public Address website (http://publicaddress.net/legalbeagle/), and many of my submissions are informed by posts or comments that have been made in discussions there. I can be contacted at Graeme.Edgeler@gmail.com.

2. I thank the Commission for the opportunity to make a submission on the Review of MMP, and look forward to presenting my submission in person. My submission addresses each of the matters raised by the Commission in its discussion document, and also addresses some other matters relating to the MMP voting system.

The Party Vote Threshold

3. I support the removal of the party vote threshold, or at a minimum that it is substantially lowered.

4. I do not believe that were New Zealand to remove the artificial threshold, that we would suffer the adverse consequences many fear:

• We have a long history as a stable democracy, with a vanishingly small extremist fringe;

• Our prior experience under first past the post, and to date under MMP, has created a strong party culture, focussed around two major parties;

• We do not have a history of a highly fractured political or cultural climate.

5. Countries with fraught elections and difficult political cultures tend to have very different histories to ours. New Zealand does not have in its living memory anything remotely like the Nazi Party’s rise to power; and our country was not set up to protect an oppressed religion, nor have we faced the existential threat as Israel has. These things have a profound effect on a country, which we have not experienced. We do not need to guard so strongly against the things that some other countries may fear when formulating their electoral systems, and accordingly, the arguments against which the right to be represented are to be balanced are much less compelling. This significantly strengthens the imperative to ensure that the voices of as many voters as possible are represented in the House of Representatives.

6. New Zealand is among the longest-standing democracies in the world. We have had a functioning party system for over 100 years, and our two major parties are both well into their second half-centuries. I believe that the New Zealand political system is mature enough that we could cope in the absence of an artificial threshold.

7. It may be that the time we have had with a 5% threshold has helped this, and that the absence of a threshold would have been destabilising at our first MMP election. However, I see no reason it would be particularly destabilising now.

8. Simply put, a lower threshold will no more make our Parliament a fractious one like Israel's than it would make us a de facto one-party state like South Africa.

9. I believe that the Electoral Commission's recommendation should be such as to ensure that we have the lowest possible wasted vote. This necessitates either a much lower (or no) threshold, or providing voters with the option to vote for a Plan B, a second choice should their first choice party not reach the threshold. The former seems the superior approach, although the latter would also be a welcome advance.

10. As well as disenfranchising many voters, a high party vote threshold:

• Distorts voter behaviour;

• Discourages voter turnout; and

• Encourages apathy among larger parties toward their base, who will likely never have anywhere else to go.

11. I favour the removal of the artificial threshold, and while I know I am not alone in this, I recognise that many will be strongly opposed to this course.

12. This opposition is often because of a concern that small parties under MMP exercise disproportionate power. While this is debateable, the solution is more minor parties, not fewer. Minor parties have greater influence if they are the only option for a larger party, or if they alone hold the balance of power, and can decide which of two alternatives governs. The more options a major party has, then less likely it is they can be held hostage to the whims of any one group.

13. Since the adoption of MMP, we have had a number of parties in Parliament with one or two MPs, and this does not seem to have posed any great stability problems. I can recognise that there is some legitimate benefit to avoiding a proliferation of small parties in Parliament: a large number of single MP parties could make governmental and legislative coalitions difficult to manage, but in effectively banning parties with one or two MPs, there is no need to ban parties that would have five or six MPs.

14. The Parliamentary Assembly of the Council of Europe has on several occasions considered the effects of different aspects of electoral systems on democracy:

In well-established democracies, there should be no thresholds higher than 3% during the parliamentary elections. It should thus be possible to express a maximum number of opinions. Excluding numerous groups of people from the right to be represented is detrimental to a democratic system. In well-established democracies, a balance has to be found between fair representation of views in the community and effectiveness in parliament and government.

15. It has also said:

Thresholds … have a significant impact on the representativity of an elected body. This question of utmost importance has already been discussed in the Assembly on several occasions and the Assembly’s position is clear: in stable democracies legal thresholds over 3% are hardly [ever] justifiable. There is no reason to bar certain groups of citizens (minor parties) from access to parliaments.

16. New Zealand does not presently have the balance right. Whatever the rationale for a threshold (stability, effective government, effective Parliament, or something else) it should not be so high as to preclude a serious attempt to break into Parliament from the outside. The 5% threshold has demonstrably failed in that regard.

17. It may be that New Zealanders consider themselves reasonably well served by our political options, but a threshold of 5% has proved – and is likely to continue to prove – far too great a barrier to the emergence of political alternatives. Unfortunately, a 4% threshold is likely to prove little better.

18. I can understand (and accept to an extent) a lot of the arguments in favour of having a threshold. I believe all of the serious ones can be met by having a threshold set at a level where the parties reaching it will be guaranteed to have at least 3 MPs – such a party is large enough to make enough of a difference in Parliament without being so small as to prevent their being effective advocates for their voters. A 2.5% threshold will meet this goal, guaranteeing that all parties in Parliament by virtue of the party vote will have at least three MPs.

19. I do not consider that any threshold higher than 3% can be justified. And I am both confident and fearful that if the party vote threshold stays as high as 4% or 5%, political innovation will be stifled.

20. Whilst I am proposing a threshold (if we are to have one at all) of 2.5%, and others are putting forward other numbers, I recognise that we are mostly just pulling numbers out of the air. I believe the Electoral Commission should closely consider the pros and cons of the whole range of potential thresholds, which is something the Royal Commission – which had a much wider brief – did not do (or at least did not do publicly in its report).

21. The Commission should investigate:

• What will it mean if we set it at a level where we can have single MP parties? How many are there likely to be? What will the likely effects be on government formation and the legislative process?

• If the threshold is at around a two MP level, how well will such parties be able to perform the work we expect of parliamentary parties?

• If a three-MP party is in the opposition, how frequently will it get to ask a primary question in the House? How many bills in the areas of legislation important to it will it be unable to subject to real scrutiny because its MPs are stretched too thinly? etc.

22. The Commission would also do well to consider whether lowering the threshold (or removing it entirely) will increase voter turnout.

23. In short, the Commission should decide at what level a parliamentary party is likely to be too small that its MPs will be unable to do a substantial amount of the work we would expect even a small party to be able to do in Parliament.

24. Perhaps if a party is so small that it can do almost none of the things we would expect of people representing our voices in the House of Representatives, the arguments in favour of thresholds have some meaning. If all that can be offered to the small groupings needed to elect one (or two) MPs is the illusion of effective Parliamentary representation, it may be legitimate to set a threshold at a level where we can have some confidence those who make it into Parliament will be able to be effective representatives.

25. Ultimately, the Commission should determine the size it considers a minor party is likely to be effective enough that the rationales for telling its voters that they can’t be represented at all fall away.

26. Even though we’ve had the 5% threshold, we have had parties in our MMP Parliament at every potential size for a minor party: ACT, Mana, the Maori Party, the Progressives, and United Future have operated as single MP parties; ACT, the Progressives and United Future have had two MPs; the Maori Party and United Future have had three MPs, The Maori Party has had four MPs; ACT, the Maori Party and New Zealand First have had five MPs; and the Greens have operated with six MPs.

27. Over such a short period, we’ve amassed quite a useful selection of case studies: of minor parties that have worked closely with others in opposition, and that have worked alone in opposition, those that have sat on the cross-benches, and others been in government. There is the data to assess the contributions they made, the level of representation they provided those who voted for them, and the concessions they’ve exacted (for good or ill).

 

28. Looking at the experiences we’ve had, one could quite properly conclude that a one-MP party can add to Parliament in a way that our democracy would have suffered were they not there. And even if the Commission wouldn’t quite go that far, I submit that by looking at our experiences with three MP and four MP parties it will be clear that those parties were able to do a lot on the issues important to those who voted for them.

29. As I said earlier, if we are to have a threshold, I consider 2.5% is the appropriate level. Reaching 2.5% of the vote for a new political force will not be an easy task, but it is attainable, and no party that reaches that level can be dismissed as a joke, unlikely to be able to operate effectively in our Parliament.

30. A threshold set at 4% or 5% will very likely not be within reach of any political force outside Parliament absent some crisis of confidence in our political system. A threshold set at too high a level will only have the effect of inoculating our current party structures from the full rigour of public scrutiny.

31. The Commission has a once in a generation opportunity to move our democracy in a more representative, more open direction. It should not be timid. If it considers the evidence, and reaches the conclusion that the likelihood of major negative consequences from abandoning the threshold is low, it should grasp the opportunity to recommend this.

32. Finally, if the Commission does recommend the total removal of the artificial threshold, it may nonetheless wish to consider whether to recommend that we adopt a modified form of the Sainte-Laguë system, such as that proposed by the Royal Commission. With the unmodified Sainte-Laguë system, a party could receive a seat while earning fewer than half the votes required to have fully “earned” a seat. It may be desirable to ensure that a party gaining a seat in the House gets at least somewhat close to support of 1/120^th of the voting population.

The One-Seat Threshold

33. I was a long-time supporter of the one-seat rule, which I saw as ameliorating some of the problems of our high party vote threshold. However, whilst the single-seat threshold does have the advantage of providing a more proportional Parliament, it also violates the principle that all votes should be of equal value, by giving voters in particular areas substantially more power than those in other electorates.

34. I do not believe that the one-seat rule is unfair in the sense that, for example, following the 2008 general election it allowed the ACT party 5 MPs, while the New Zealand First, which received more party votes, received none. It is not unfair that people who voted for ACT were represented commensurate with their share of the party vote. The only unfair aspect was that those who voted New Zealand First were not represented. Had ACT voters been denied their proportionate representation, the position of those voters who supported New Zealand First would have been in exactly the same: they would have remained totally unrepresented. Adding unfairness to ACT voters on top of unfairness to New Zealand First voters does not make the system fairer overall, it merely compounds one injustice with another.

35. But while that was not in itself unfair, what was wrong was that it was the voters of Epsom who had the power to decide whether the 85,496 people who gave ACT their party vote were going to be represented.

36. I recognise that there are other benefits of the one-seat rule: it reduces the number of single MP parties (one of the aims of a having a threshold), and can increase the effectiveness of Parliament by ensuring that the parties that enter Parliament are better placed to operate effectively. However, I am of the opinion that whatever the benefits of it, the substantial and disproportionate power it gives to an arbitrary set of voters outweigh any gain: it is fundamentally wrong that the voters of one electorate have the power to affect an election result to so great an extent.

37. Whilst I will address overhang in more detail later, I would note now that in the event that the one-seat rule goes, electorate seats won by parties falling short of whatever party vote threshold remains should not automatically be treated as creating overhang seats. If the provision to allow for overhang remains, and the one-seat rule goes, parties which win electorate seats should be included in the Sainte-Laguë calculation up to the extent that their party vote and electorate seats would allow: if the quotients each of their electorate seats would represent are in the top 120, these seats should not cause overhang.

Dual Candidacy

38. I have been wavering over my view on dual candidacy. A blog post I wrote to gauge others’ views has, I think, brought me around to supporting the retention of dual candidacy, although I look forward to reading other submissions to the Commission’s review, as I can see that a strong argument (preferably backed up by evidence) could easily change my mind.

39. Banning dual candidacy does have the potential to strengthen the relationship between local MPs and their constituents, by removing the backstop of a place on the list and tying the continuation of a member of Parliament in office directly to their continued support among the community which elected them. This could encourage such MPs to stand up – whether in public, or more likely, in caucus – for the views of those who elected them.

40. At best, however, that is only an argument about MPs in marginal electorates. As a ban on dual candidacy will encourage good candidates who live in the safe electorates held by other parties to seek to be list-only candidates, the quality of candidates opposing incumbent MPs in largely safe electorates will probably decrease, and those electorates are likely to become even safer for the MPs holding them.

41. I do also consider that the electorate race is not there to enable parties to better seek the party vote. Under MMP, electorates are largely irrelevant to the make-up of Parliament: they should be (and usually are) a purely local race aimed at determining whom local voters believe will best represent their local interests in Parliament, and it does not seem unreasonable to limit an electorate race to people who actually want to represent the electorate.

42. Lots of people stand in an electorate knowing that they won’t win, but putting one’s name forward for election when you don’t even want to win seems almost dishonest, and I’m not sure we should be writing our electoral laws to benefit those who wish to run in order not to be elected. So the idea of banning dual candidacy does have much to commend it; in particular, it is one way of decreasing the power of the party machines in the electoral system. If that is a desired outcome, however, open lists represent a better mechanism for achieving it.

43. Ultimately, I find the argument “if we want the best candidates available for our electorates, and the best candidates available for our party lists, those same people need to be on both bits of paper,” compelling, and that this is one matter I now consider should be left with voters at each election.

44. If voter concern over dual candidates (and zombie MPs) rises, parties would be foolish to ignore voters’ wishes, and those who do provide high list spots to protect incumbent electorate MPs are likely to suffer at the polls.

List MPs Contesting By-elections

45. In a number of respects, the question of whether list MPs should be permitted to run in by-elections is a subset of the question of whether dual candidacy should be permitted. I consider that if dual candidacy is permitted, then list MPs should be permitted to contest by-elections. Obviously, if dual candidacy is banned, list MPs should be prohibited from contesting by-elections.

46. The recent Mana by-election is instructive. The National candidate in the by-election had contested the electorate in 2008 and was intending to contest it again in 2011. The voters of Mana had a right to expect that they would be presented the best available candidates to choose between from each of the parties.

47. Given that we permit (even encourage) dual candidacy, it would have been unfair to have expected the people of Mana to try to get to know a new, second-best, National candidate for the brief period surrounding the by-election, before being presented with the real National candidate a few months later.

48. The controversy that there has been over list MPs running in by-elections has primarily related to the expected shuffling of list seats in the event that a list candidate were to win. Thus far, the political marketplace has resolved this issue, and parties likely to win by-elections have not nominated list MPs, and by-election voters have not elected list MPs. Voters are smart enough to realise the consequences of their votes – particularly when the media and their opponents can point these out – and this may be sufficient to meet the concerns some have.

49. That said, it seems likely that a list MP will win a by-election sooner or later, and if this shuffling of list seats is considered problematic, and the views of voters at that by-election are considered an insufficient check, there are two mechanisms to prevent it: the first is to require a list MP who wishes to contest a by-election to resign their seat before being nominated for the by-election; the second is to amend the Electoral Act so that if someone was an electorate MP at the time of their nomination, their status changes from list MP to electorate MP without their being replaced as list MP (the size of Parliament would reduce by one).

50. I consider that if there is public concern about list MPs running in by-elections, the second of these two options is the superior. The former does not resolve that issue, it just brings the list replacement forward to before the election, rather than after it. The latter allows parties to submit their best candidates for the by-election, (who may have contested the electorate previously, and be intending to contest it subsequently), without risking that person being out of Parliament for the remainder of the term, and also provides voters with a true choice between the best candidates, while preventing what many appear to consider is a ‘rort’.

51. However, if it is proposed to allow the current rules to continue, I submit that the rules around it should be made explicit in the Electoral Act. There is currently no requirement for such an MP to resign to allow a further list MP in, and were they to choose not to (perhaps out of fear of a voter backlash) it is not clear what would happen in the event their seat subsequently became vacant (would they be replaced only as an electorate MP, or as both an electorate MP and a list MP?). If this is to remain, the Electoral Act should spell out that when a list MP wins a by-election, they become an electorate MP and their list position filled by the next available person.

52. There is however one other factor that the Commission should consider. Campaigning for election while a member of Parliament provides a substantial advantage over that person’s opponents. It is almost certainly outside the Commission's brief to make recommendations on Parliamentary funding arrangements, however, it can and should recognise that the current rules permit spending in a way that is to the substantial advantage of list MPs contesting by-elections. If there are other concerns raised, then this may be enough to tip the balance in favour of change.

53. Finally, I would note that any recommendation should address not only list MPs, but also electorate MPs, who are also currently permitted to run in by-elections.

Open Lists

54. One of the unwelcome (albeit predictable) consequences of the introduction of MMP was an increase in the power of party bureaucracy and party leadership, which is primarily exercised through control over the party list.

55. There appear to be four basic options for change:

• Open lists, in which voters collectively have total influence over the order in which candidates are taken from lists;

• Semi-open lists, in which voters only affect a list order if a minimum number or proportion of votes are received by a given list candidate;

• Increasing the power of party members, rather than voters, by beefing up of requirements for internal party democracy, as already contained in section 71 of the Electoral Act;

• Abandoning lists entirely, and moving to a system where, for example, the ‘best losers’ in electorate races fill the available party slots.

56. I have previously viewed open lists as nice in theory, but unlikely to work in practice, given the logistical problems involved in having a voting paper with 600 names on it. A look at methods of voting in countries with open lists suggested that my initial scepticism was misplaced: a move to open lists would not require that each list candidate’s name appear on the ballot, and could be attained easily, with little added voter confusion.

57. If we are to move to open lists, a box could simply be placed under the party vote portion of the voting paper, into which voters (if they wish) would write a number, which would correspond to the number of a candidate on the list for which they voted (which could be attached to the inside of the booth). The list would then be re-ordered with the candidates for each party with the most votes moving to the top of their parties’ lists. Alternatives involving ranking the candidates, or allowing voters to strike out candidates, would provide a greater level of voter control, but would also substantially increase the complexity of the voting experience.

58. Such a mechanism would address many of the concerns that arise of the election of list MPs, including diminishing the incentive for members of Parliament to toe the party line against their better judgment, or the views of the public. If these are major concerns, this form of open list system would represent an improvement.

59. The major problem with an open list system (particularly one based on a single national list) is that an open list is also an unknown list. With open lists, voters cannot be sure exactly who they are voting for when casting their party vote:

• Voters casting a vote for a party on the basis of a highly-placed candidate they particularly admire may find that other candidates leap-frog that person;

• A voter who dislikes a candidate particularly low on a party list, and whom they therefore don’t expect to be elected, may find that the marginal effect of their vote is to cause that person to be elected;

• A voter who votes for a party list with a high number of, for example, female candidates, may find that the vote has actually elected a number of men from the list, and almost no women.

60. Closed lists, on the other hand, provide certainty to voters, so that voters can be fully informed about the likely effects of their vote, and can take these into account in the voting booth.

61. Again, the political market may be viewed as a solution to this concern of party hierarchies holding too much power. Voters who disagree with strong party control can vote for parties that operate more open processes. Mandating open lists may also have the counterintuitive effect of decreasing voter choice. To require open lists would negatively impact on the choice to parties to adopt internal policies around, for example, geographic diversity or gender-balance. The Green Party, for example, consider their list balance a selling point, and many may vote for them on that basis. Whilst I do not support mandatory quotas, if a party wishes to impose them on itself, and then campaign on that basis, this seems not only proper, but democratic.

62. For these reasons, I consider that open lists would, on the whole, represent a retrograde step. There are substantial benefits in terms of public acceptance of the legitimacy of the election of list MPs, but the negative consequences would likely outweigh these.

63. A move to semi-open lists, would, I consider, be worse than a move to open lists; it would involve many of the detriments of open list systems, only without the resulting benefits in terms of MP autonomy.

64. Similarly, I oppose a move to a “best loser” system. Not only does it remove information from the voter, it pollutes local electorate races – people may be encouraged to vote for someone they don't want as their local representative to give that person a better chance of getting in on the list. Voters shouldn't have to make that choice: the electorate vote should be about voting for the person you want to represent your electorate. More concerning is that it is open to a great deal of manipulation: parties would be encouraged to place candidates in electorates with which they have little connection in order to increase their chances of being elected. And it would also favour candidates in races where there are fewer opponents.

65. Because of the detriments of an open voting system, I consider that a proposal to increase the role of individual members of political parties has substantial merit as a means to somewhat diminish the unwelcome increase in the power of party hierarchies. It removes the concern of centralised control of party list-ranking, and moves some of the accountability of members of Parliament from party leadership to voters (albeit voters who are members of political parties).

66. To accommodate the desires of individual parties, the changes need not be especially prescriptive. If some flexibility was desired, it could be allowed that individual parties could impose, for example, a requirement for membership for a certain period before a member was eligible to vote, or allow the result of party-member ranking to be filtered through a transparent process to achieve some desired outcome (e.g. geographic diversity or a high level of gender equality).

67. Again, it can be argued that this power is already in the hands of party members. If party members wish to exercise greater control over list ranking, internal amendments can be proposed to party constitutions and list ranking procedures; if enough party members agree, the question can be forced and if necessary, internal party elections can be fought over the issue: increased power over list ranking is party members’ to take. However, this is one instance where I am not sure that the political marketplace is sufficient. The benefits in terms of increased party accountability, and a decreased reliance on the patronage of party leadership, that should flow from moving list ranking powers away from party structures to broader party membership accrue to all, including those who vote for other parties. It was partly for this reason that the Royal Commission recommended the rule that became s 71 of the Electoral Act in the first place: we all have an interest in all the political parties contesting our elections operating in a democratic manner, and additional party democracy is something that we may legitimately require.

Overhang

68. I am not particularly concerned about overhang. That there are extra one or two MPs, who make Parliament slightly more proportional, doesn't bother me: the possibility of either overhang, or some disproportionality caused by a party winning electorates in excess of their party vote, is an unavoidable component of an MMP voting system.

69. While overhang is generally attributed to split voting, it is possible even in the total absence of split voting. A cursory analysis of New Zealand's recent experience also suggests that our having electorates in which numbers of voters differ quite markedly is also a substantial cause. The possibility of overhang could be reduced by equalising voter population between electorates, and having boundaries drawn by reference to voting age population, and not overall population. I would oppose such a measure. Members of Parliament represent all New Zealanders, not just those of voting age, and the approach we currently have is one mechanism to partly recognise the importance of young New Zealanders.

70. I anticipate that the Commission will be asked by a number of submitters to consider the balance of electorate and list seats, with a view to increasing the number of electorate seats. In considering that question, the Commission should be mindful of the effect that that might have on the potential for overhang. While a small level of overhang is acceptable, if it were to increase, voter acceptance of the results of elections would likely decrease markedly; this should be guarded against.

71. Whilst I don’t have a particular concern with overhang, I am also not particularly wedded to it. If otherwise overhang-causing MPs were treated the same as independent MPs currently are (reducing the number of quotients allocated), this would not be especially concerning, unless the disproportionality was large.

72. Given the importance that New Zealanders place on electorates, and our seeming distaste for an increase in the number of MPs, I do not see a need for balance seats, however I would not be opposed to allowing that a party which received more than 50% of the vote should be given balance seats if necessary to ensure it controls more than 50% of the Parliament (whether overhang itself remains, or not). The possibility that overhang (or rounding errors) may mean that a clear majority of voters might have their will thwarted is something that should be avoided: a small number of balance seats in this unlikely scenario seems like an appropriate compromise.

The Effect of Demographic Change on the Ratio of List to Electorate Seats

73. Should the faster growth of North Island and Maori-enrolled population continue over time, it is inevitable that at some point, the number of list seats will fall to unsustainably low level, in which overhang is ever-present and increasing, and proportionality is difficult to maintain.

74. It seems unlikely that this will happen for a very long time, however, I would support incorporating a requirement into the Electoral Act setting a minimum proportion of list MPs. I anticipate that somewhere around one-third of the seats should be guaranteed to be list seats, but a political scientist or two will be able to advise on the level at which we can be confident that proportionality can be maintained. In order to be sure that a different ratio of list seats to electorate seats is unlikely to greatly effect an election outcome, the Commission should submit any proposals to the “2002 test”: scale the results of the 2002 election to the different ratios of list and electorate seats, and if no overhang results, the change is likely to be unproblematic.

75. I would note that as the number of electorates increases, the number of electorate seats held by the major parties will also increase – numerically, and as a proportion of seats held. Over time, this risks decreasing the ability of the major parties to elect specialist MPs of the type we may expect to come through the list, as a greater and greater component of the major parties come from electorate victories.

Other Matters

A Referendum on any Changes

76. I submit that the Electoral Commission should give serious consideration to recommending that its proposals for change should be adopted by Parliament and put to the public in a referendum.

77. Whether this is necessary is likely to resolve around exactly how extensive the recommendations for change are, but given the substantial scope of political self-interest from our current members of Parliament in their response to the report, and given the importance of these matters to our democracy, public approval or rejection of any changes may increase public confidence in our political system.

The Sainte-Laguë Apportionment System

78. I consider that the Sainte-Laguë apportionment system, which produces the most proportional outcome, is the best method of dividing up seats in the House of Representative.

79. I recognise that other systems, such as the d’Hondt system, will guarantee (subject to overhang) a parliamentary majority to a party which receives over half the votes, which Sainte-Laguë does not do in all circumstances. If this prospect is a concern, the solution is to provide for a small number of balancing seats in the unlikely event this occurs, and not to lessen the proportionality of every election we hold.

80. As I note above, if the Commission recommends removing the artificial threshold entirely, it should consider tying that proposal to a modified form of the Sainte-Laguë apportionment system.

The Number of Electorates

81. I consider that the number of electorates we have at present is sufficient. If there are concerns around the size of some electorates, a small allowance could be made by increasing the electorate tolerance, perhaps to the 10% that the Royal Commission recommended (abolishing the one-seat rule will remove some small residual concerns about adopting this course).

82. I would not necessarily oppose a small increase in the number of electorates if we could be confident that the proportionality of the House could be maintained, however, I would note that this would increase the likelihood of overhang. Again, I submit that the “2002 test” should be applied, to ensure that we can remain confident that we have a sufficient number of list MPs for proportionality to be maintained.

The Consequence of an Election Petition on the Proportionality of Parliament

83. I submit that it would be desirable to allow a party, following an election petition that results in a change to the make-up the House, to then petition the Court of Appeal to redo the allocation of list seats.

84. Although we have, I think properly, decided that certainty of the result is important, this is one instance where the democratic imperative of the overall election result should hold sway, even if it means a short period of uncertainty, or results in a member of Parliament losing their seat after being sworn in.

85. The inability to redo the allocation of list seat is most concerning where the one-seat threshold may come into play (either because a party has been improperly denied, or improperly allowed, a number of list seats), but it may be necessary to avoid the possible results such as a high-ranking list candidate being left out of Parliament because of a change in their status as an electorate MP.

86. The drafting error that declares that a vacancy arises (with all that entails, for example a by-election) following a successful election petition, could also usefully be corrected.

Proportionality between General Elections

87. I support the retention of the current system whereby proportionality is not recalibrated after a by-election. A member of Parliament should not have their seat vacated because someone in their party has won a by-election in a seat previously held by someone else.

Entrenching MMP

88. Given the importance of the voting system, I submit that the MMP voting system, and a number of the details involved in it, for example, the size of the House, the threshold, the apportionment system, should be entrenched.

Replacement List MPs

89. Recent news stories have alerted me to one oddity that remains in the replacement of lists MPs. A potential replacement list MP remains eligible to take the place of a retiring member of Parliament even if, during the period they are waiting, something occurs that had they been a member of Parliament would have resulted in them losing office (for example, a conviction for a corrupt practice, or other serious criminal conviction). I believe this oversight should be remedied, although not all the methods in which a vacancy arises should be included (for example, it should be permissible for a potential replacement list MP to be a public servant in the interim).

90. Another issue in relation to replacement list MPs has arisen in each of the last two terms of Parliament, where there was some public disquiet over the re-jigging of party lists after the election, with various replacements declining to take up positions in order to get desired people into Parliament.

91. I consider that the political marketplace is an ideal solution to these concerns. If the circumstances of a replacement are such to annoy members of the public, that is a matter they can and should take into account when considering their vote at subsequent elections. No law change is necessary.

92. I am aware of proposals that party leadership or party boards should be permitted to simply choose from those waiting on the list to fill a vacant slot. While there are some advantages to such a system (a party could replace an MP with a particular skill-set, or representing a particular group in society, with someone similar), I would oppose any change in this direction. Not only would it give additional power to party leaders, but more importantly the list is the list for which people voted: outside forces should not be permitted to change it after people have voted.

93. I would, however, support one minor change. Once a person has declined to take up a list spot, they should not be asked again if there is to be a subsequent replacement, which is what the law currently seems to require.

Death of Incapacity of a Constituency Candidate at a General Election

94. Under MMP, electorate seats are significantly less important than they are under other voting systems. Because of this, I do not consider that the rules we have to deal with the death or incapacity of candidates (which we carried over from the Electoral Act 1956) should remain.

95. The rules are particularly problematic while we have the one-seat threshold, but even if that goes, the rationale for cancelling a constituency election following the death or incapacity of a candidate is weak. There is no reason why the death of an independent candidate with little chance of winning should put the country to the cost of a by-election, and the disproportionality that results from conducting an apportionment while ignoring an electorate that may be highly likely to be won by a candidate from a particular party.

96. I propose that the Commission recommend that in the event a candidate dies or is incapacitated after the close of nominations, the election should proceed, with a by-election only called if the dead or incapacitated candidate actually wins.

Conclusion

97. Thank you again for the opportunity to file this submission, and for the opportunity to present it in person.

98. I look forward to reviewing the Commission’s draft recommendations and making further submissions on them later in the year. I also look forward to perusing other’s submissions, and possibly filing written material in response to some of the common proposals that may arise and which I have not addressed.