Legal Beagle by Graeme Edgeler

In 1986 Parliament passed the State Owned Enterprises Act. It included a section reportedly described by then Attorney-General Geoffrey Palmer as “window-dressing”:

9 Treaty of Waitangi
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

And until not all that much later most people probably believed him. The 1987 Maori Council Case turned this on its head – the Court read real meaning into the words “the principles of the Treaty of Waitangi” (deciding they took precedence over more specific language in the Act) and our law hasn't looked back. The Court of Appeal found obligations of good faith, the concept of partnership between Maori and the Crown, the need to provide redress for past breaches, and the need to be fair to one another and act honourably. It was controversial, and indeed is controversial still – this case is still occasionally be referenced as a nadir of judicial activism in New Zealand.

It may have been a foreseeable consequence, but it was clearly an unintended one. In its wake, reference to the principles of the Treaty of Waitangi appears in a swathe of legislation – from the Climate Change Response Act, to the Royal New Zealand Foundation of the Blind Act, as well as countless government charters and statements of intent.

The Maori Council Case was a starting point, but even now there isn't a truly definitive statement of what the principles of the Treaty of Waitangi encompass, and there remains the possibility that the Courts could expand upon this in the future. Which some people have a problem with.

There have been attempts in Parliament to wrest control from the Courts. In Early 2006, a Rodney Hide-introduced bill that legislatively defined the principles was debated in Parliament – his Treaty of Waitangi (Principles) Bill declared three principles arose from the Treaty – one for each article: the principle that there is one New Zealand, and that the Crown exercises sovereignty for all; the principle that the Crown has a duty to uphold citizens' property rights; and the principle that all New Zealanders are equal before the law and have the right to things like fair trials, free speech and democracy.

Very different from the principles elucidated by the Court of Appeal, and obviously controversial. The bill wasn't particularly well-drafted. Indeed, on its face, it only defined those as the principles for the Treaty of Waitangi (Principles) Bill itself and wouldn't have affected the meaning of those words in other legislation, but the intent was clear, and the bill could have been the vehicle for debate on the meaning of the Treaty, if Parliament had wanted to allow New Zealanders to have one. They didn't, and the bill failed to reach select committee.

A few months after that attempt, New Zealand First MP Doug Woolerton's Principles of the Treaty of Waitangi Deletion Bill was drawn from the Parliamentary ballot. It took a different route – it proposed to delete every legislative reference to the “principles of the Treaty of Waitangi” – section 9 of the State Owned Enterprises Act would be gone, as would the requirements of University Councils, and the Royal Society of New Zealand et. al. to acknowledge the Treaty, along with several legislative apologies in Treaty settlement legislation. It was an indiscriminate approach – no consideration was given to the reason those words appeared in any particular legislation, and no thought was given to the possibly that removing them from some places might render some bits legislation largely unintelligible.

Labour supported the bill to select committee as part of its confidence and supply agreement with New Zealand First, where it was rightly rubbished. Concerns with the pervasiveness of “the principles of the Treaty of Waitangi” are legitimate. The words have often been added to legislation or other governing documents with little thought for the practical effect. But that scatter-shot approach to legislating – proposing legislation that actively wrecks coherent law, leaving a void for who knows what court to fill at great expense to everyone is abhorrent to democracy. It was an exercise in futility – the Principles of the Treaty of Waitangi Deletion Bill could never be the basis of meaningful law, and could never have achieved what New Zealand First intended it to.

But its idiocy pales in comparison to Keith Locke's Head of State Referenda Bill, which Parliament rightly rejected earlier this week. While New Zealand First's bill had the saving feature that everyone knew it was a joke, Locke's republic referendum bill had the outward appearance of a serious attempt to start the process toward creating an indigenous head of state for New Zealand. And Parliament's debate on its first reading treated it as such.

But the bill was so woeful, so inadequate, that it would have been a travesty of democracy had it ever reached a select committee. David Farrar, and the Republican Movement, and many others, are disappointed that the public of New Zealand didn't get the chance to have their views made known on the prospect of a New Zealand Republic. But that is not what the select committee debate on a bill is for – a select committee looking at a bill, looks at the bill. It would have been a cruel joke to have that public debate occur with this bill. If a select committee inquiry into the general process New Zealanders want to take on deciding whether to ditch the Monarchy, then that is what they should seek. It could be a really valuable process, and it's easy enough to get – a majority vote at a select committee can start one.

Why do I say the bill was appalling? I've a list – but please bear in mind that this is only the highlight reel.

Let us start with the basics. First, of course, was the problem identified by the Attorney-General, in the report he presented to the House stating his opinion that the bill was inconsistent with the New Zealand Bill of Rights Act. The requirement of the bill that not all registered voters could vote in its second referendum was odd, but was a problem that could be fixed in the select committee. Still, an inauspicious start.

Somewhat hilariously, given Green Party views on the conduct of referendums made known in the House just the following day, the bill imposed absolutely no restrictions and no transparency on the conduct of the republican referendum. There were no spending limits, no registration of those undertaking massive publicity campaigns, no requirements to tell us who was funding them, not even a requirement to put a name and address on campaign posters.

The funding rules for the prospective head of state elections were no better: no limit on foreign donations; and no disclosure of donations received by the candidates at all. The Head of State – whose signature would be required on every law before it took effect – wouldn't have to tell us whether they were receiving millions of dollars from foreign multi-national corporations.

There was at least a spending limit for the nationwide Head of State elections: $20,000. But the law, which would have applied some of the rules the Electoral Act to how spending would have operated, adopted the non-existent section 214 to show how these would work.

Far more problematic was that if the bill had passed, and New Zealanders had then voted for a republic, none would actually have been created.

The Head of State – whether elected or appointed – would have been required to appoint a Head a State. Or possibly, the Elizabeth the Second, Head of State of New Zealand would have been required to appoint a head of State. Because, of course, the Letters Patent constituting the Realm of New Zealand, and creating the office of Governor-General, were entirely untouched.

Indeed, pretty much the entire body of New Zealand law – with all its references to the Queen, or the Crown, or the Governor-General-in-Council was left as it was (including the Imperial laws dealing with the succession!). There was a deeming provision:

(3) Every reference in any enactment to the Queen, the Sovereign, or the Governor-General is to be read as a reference to the head of State.
(4) Every reference in any enactment to a Minister of the Crown is to be read as a reference to a Minister.

But that was it. It left the old words, and quite a bit the old meaning too. Most of the phrase “Elizabeth the Second, by the Grace of God Queen of New Zealand and Her Other Realms and Territories, Head of the Commonwealth, Defender of the Faith” in the Letters Patent I mentioned earlier is unaltered in word or meaning. That's one consolation, I suppose, our Head of State would have been implicitly declared the Head of the Commonwealth.

References to the Crown itself? They continued to have the same meaning. Which is just as well, because Keith Locke's bill imposed continuing obligations on it under the New Zealand Republic.

The common assumption among those who've thought about is that should New Zealand becomes a republic, the obligations currently reposing on the Crown under the Treaty of Waitangi would be taken over formally by the Government of New Zealand (where they effectively rest now).

That's not how Keith Locke wanted to do it. The (New Zealand) Crown's obligations under the Treaty of Waitangi wouldn't transfer to the Government of the Republic of New Zealand, or to the Head of State, they'd stay with the Crown, exactly as they are now:

66 Treaty of Waitangi
The rights conferred and obligations imposed by the Treaty of Waitangi continue as if this Act had not been passed.

There were actually a couple of direct amendments to other pieces of legislation. The bits about the Sovereign in the Constitution Act were deleted, and replaced with a statement mentioning that the (elected or appointed) Head of State would be the Head of State. And several oaths in the Oaths and Declaration Act would be updated for the new regime: the Oath of Allegiance for example, would change from its current form:

I, ..., swear that I will be faithful and bear true allegiance to Her [or His] Majesty [Specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Her [or His] heirs and successors, according to law. So help me God.

to the republican:

I, ..., swear that I will be faithful and bear true allegiance to New Zealand, according to law. So help me God.

However, that's only the Oath of Allegiance taken by Judges (who must also swear the Judicial Oath) and Executive Councillors (who also swear the Executive Councillor's Oath). The Oath of Allegiance for new citizens – set out in the Citizenship Act – would stay as:

I, [Full name], swear that I will be faithful and bear true allegiance to Her [or His] Majesty [Specify the name of the reigning Sovereign, as thus: Queen Elizabeth the Second], Her [or His] heirs and successors, according to law. So help me God.

Now whether new citizens would be required to say “Queen Elizabeth the Second”, and have it deemed to mean “the Head of State”, or would instead substitute the name of the “reigning” Head of State isn't clear, but it's nice to know the new Head of State would be addressed as “His Majesty” or “Her Majesty”. And it's interesting to know that citizens will be swearing fealty to them and their heirs and successors, and not New Zealand.

Unfortunately, the deletion of Part 1 of the Constitution Act would also delete the bits which give the temporary Administrator of the Government the power to do anything if the Head of State is absent or non-existent. This is doubly unfortunate, because the Administrator would actually have a fair bit to do: any election for a new Head of State only takes place after the old one's term is up, and they leave office immediately. If they resign – which they can't actually do – or die, we have to wait until their term finishes before electing a new one anyway. But that's okay, while there is a sort of general requirement to hold an election, unlike with parliamentary elections, there's no time-frame imposed for the holding of them, so the Chief Electoral Officer may never have gotten around to it anyway.

Surely these problems have been ironed out in a select committee?

Not really, no - there are simply far far too many of them.

These are just the funny ones, and not even all of those. I haven't touched on the idiocy of operating a voting system for a single office under STV with the requirement to carry over a keep fraction, or the incompatibility of the Referenda (Postal Voting) Act to STV elections, and hundreds of other problems the bill would have created.

The Electoral Finance Act was a problematic law, but a large part of why this was so was that the Electoral Finance Bill was appalling. The Select Committee process is not designed to make the number of changes and corrections that were needed to get that law workable. The debate – not unreasonably – focussed on the bits that were really bad – the unintended banning of a lot of political activity, the state intrusion into the finances of organisations that make political statements, the prohibition on political party press releases, etc. When rules like those are in a bill, submitters, and the select committee itself, are going to fixate on fixing them – to the detriment of also-important-but-somewhat-less-glaring errors.

The scale of change needed for this bill to actually achieve its aim of creating a New Zealand Republic upon the affirmative vote of New Zealanders is massive. The Twink Republic – so-called because of the aim of changing nothing about the New Zealand legal system and constitution but replacing the Governor-General/Sovereign with a New Zealand Head of State – still requires you to go through and change each reference ... just to make sure you don't accidentally change the narrative in the Ngāi Tahu Claims Settlement Act telling of how Matiaha Tiramorehu petitioned Queen Victoria in 1857 into some ludicrous, insulting, reference to a Head of State.

In 2004, New Zealand created civil unions, with the Civil Union Act itself some 30 pages long. But to give civil unions meaningful effect – a massive number of other laws and regulations needed to be updated. A companion bill – the Relationships (Statutory References) Bill – went through the parliamentary process largely concurrently. It changed the pension rules, so that the married rate for the pension became the married or civilly united rate, and made hundreds of other like changes across a broad range of legislation. That bill was over 240 pages, and I imagine it would be dwarfed by the bill needed to really make New Zealand a Republic.

It is a common refrain that New Zealand becoming a republic is inevitable. I agree that it is highly likely. But that process will take time, and it will not begin with the bill that would bring it about (and it had better not begin with one like the Head of State Referenda Bill!). When the National Government wanted to change the Electoral Finance laws, they conducted a three-stage consultation process – two stages of which occurred before legislation was even drafted. How our Head of State is determined is at least as important.

This does, perhaps unfortunately, show that this debate is not going to be one that an individual MP can thrust onto the stage with a members' bill. When republicans are serious about having a real debate, they’ll come up with a non-stupid process actually worth engaging in. If they’re not going to take themselves seriously by pushing a bill that flawed, I don’t see why anyone else should take them seriously.

The first step is probably a simple discussion. A select committee inquiry would be just one way someone in Parliament could begin the process: get some discussion going, and ideally some agreement about how the process would happen. Someone outside Parliament could start a petition. Or hold public meetings across the country.

New Zealanders deserve better than this. Republicans deserve better than this.

And not just on the issue of a republic – that a piece of legislation like the Head of State Referenda Bill can get a serious debate in the New Zealand House of Representatives is really somewhat disturbing: the voting should have been drowned out by the laughter.

The Electoral Referendum Bill, which sets out the process by which we’ll get to vote on whether we keep or ditch MMP at the next election has been introduced into the House of Representatives, and is available for us all to read. Some will, I suspect, being looking at it more closely than others.

The content of the bill is in line with expectations. The Government has made public announcements about what we’d find there, and on a rudimentary first glance the bill seems to reflect these. There are some nice touches. The Bill includes a sample ballot:

Part A
Should the current MMP system be retained?
[Vote for only one option]
I vote to retain the MMP voting system
I vote to change to another voting system

Part B
Regardless of how you voted under Part A, if there was a change to another voting system, which voting system would you choose?
[Vote for only one option]
I would choose the First Past the Post system (FPP)
I would choose the Preferential Voting system (PV)
I would choose the Single Transferable Vote system (STV)
I would choose the Supplementary Member system (SM)

But it also instructs the Chief Electoral Officer to determine the actual order of the options in Part B by lot. Which is nice. And there are some odd things too: the instructions on the voting paper advise voters:

3. You may vote in Part A and Part B or in Part A only if you wish.

Which appears to imply that people can’t vote only in Part B. Quite why anyone would, I don’t know (perhaps just because they can?), but I can’t see any real reason to stop them, and the text of the bill itself doesn’t invalidate such votes, so it’s somewhat strange.

There is some controversy. There are no spending limits on campaigns for or against MMP (or any of the options). And the prohibitions that apply to election programmes (i.e. ads on radio and television) under the Broadcasting Act won’t apply to MMP advertising, which means there could be a lot of third party TV campaigning.

Intriguingly, the Bill itself with the requirements for registered promoters (register to spend more than $12,000, let people know who you are, but spend as much as you like), should give us excellent insight into the likely form of the Government’s soon-to-be-released election finance law.

In short, the definition of referendum advertising is basically the same as the Electoral Finance Act, which one small—but major—difference.
The definition of referendum advertisement begins:
“… referendum advertisement means an advertisement in any medium that— …”
The definition of election advertisement in the Electoral Finance Act began:
“election advertisement—(a) means any form of words or graphics, or both, that…”.

If this change carries over to the new election finance law, just about all the stupid definitional problems that arose (email newsletters, hedges, et. al.) will be avoided. I don’t quite like to say “I told you so”, so I’ll note that this was one of the options I put forward to fix that aspect of the Electoral Finance Bill in my select committee submission.

This bill sets up two basic things:

1. the first non-binding referendum, on whether to retain MMP (and what to put it against when/if we have another referendum); and.
2. In the event we choose to keep MMP, requires the Electoral Commission to review it. In this sense, this is actually a binding referendum (although the only action bound to occur is a review resulting in a report).

The next Parliament can ignore that report, and indeed, can ignore a vote for change – although both National and Labour have promised to accept the result (and I’m sure the other parties will too).

Any subsequent – binding – referendum will require a new bill in the next term of Parliament.

We’ll get to vote at the next election on whether we should keep MMP, but it may be that the election result that is actually most important in shaping our electoral system for the years ahead. The exact form that any competing voting system might take when placed one on one against MMP in a binding referendum, hasn’t been decided, and won’t be determined until after the next election. The supplementary member or single transferable vote electoral system that might be designed by a Parliament in which National and ACT form a majority could be very different from the system designed by a Parliament in which the Green Party or the Māori Party hold the balance.

So the process isn’t perfect. But I’m hopeful of gaining meaningful change in the Select Committee. This Bill sets up a process whereby, if we vote in Part A to retain MMP, the Electoral Commission will review our MMP voting system. This is a really good initiative, and should give those who think MMP is okay, but could be improved, a meaningful option in the referendum. The review will look at the following:

1. The threshold for gaining list seats (5% of valid party votes or a win in an electorate);
2. The overhang (when the size of Parliament increases if a party wins more electorates than its party vote would entitle it in seats overall);
3. Dual candidacy (the ability for someone to contest both an electorate and on a party list AND the ability of MPs to contest by-elections);
4. Open lists (whether the party or the voters, or some combination, should determine the order that MPs are elected from the lists);
5. The ratio of list seats to electorate seats, and this has on proportionality;
6. Anything else the Government or Parliament later decides it wants them to look at, or they themselves want to look at, at except Māori representation, and the number of members or Parliament.

While Parliament, and the Government, would make the final call on what – if anything –to do with the recommendations, taking this potentially charged issue out of the hands of self-interested politicians in the first instance is a really good idea.

In fact, it’s so good an idea that I think we should expand upon it. If MMP loses its first round, it will be placed against an alternative voting system in a referendum at the subsequent (presumably 2014) general election. But that alternative system is still pretty hypothetical, just a number of acronyms on a voting paper which might mean different things to different people. It could be an STV system with 60 two-MP electorates, or an STV system with 15 electorates with an average of eight MPs, but ranging in size from six to ten. It could even be a first-past-the-post system with a single MP to be colloquially known as the dictator.

Exactly how that system is designed is pretty important, and it could make or break any second referendum. So my simple proposal is to ask the Electoral Commission to make the first attempt at designing it. As with the Commission’s MMP review, Parliament could ultimately tell them to stuff off, but the sight of self-interested politicians messing with the independent recommendations of an expert body to try to jack-up the second referendum to get a particular result might get people riled in a way that might not happen if the jack-up occurred inside the machinery of Government.

We had a Royal Commission design our MMP system, after a public consultative process, and which Parliament then changed at the margins (the threshold being set at 5% instead of the 4% the Royal Commission recommended being the most important). And the Government and the opposition seem to accept that an independent expert body is the best place to consider and recommend changes to the operation of MMP. I think it's undeniable that those same experts are also the best people to write the first draft of any alternative voting system. The same parameters (no review of Māori representation, or the number of members or Parliament) could be imposed, and the public could get their say early in the process, in time to actually influence the system which might replace MMP. Now if that alternative system is first-past-the-post or preferential voting, there’s not going to much for them to look at (calculating the number of electorates in the South Island, and perhaps revisiting the population tolerance would be about it), but the exact form of a supplementary member system (one vote, or two? how many list seats?) or a single transferable vote system (few large electorates, or many small ones? electorates with fixed boundaries and changing MP numbers, or electorates with fixed MP numbers and changing boundaries?) is a blank sheet.

So, while those of us who find the technicalities of electoral laws interesting will be looking at the detail of the bill in the next month, and making a submission about all the things we think will make sure the referendum runs smoothly – there are bound to be some oversights or drafting errors (clause 31, clause 51(2)(a), I’m looking at you) – this is the thing I think you all should be seeking. Submissions won’t open until next month – Parliament has to debate it first – but everyone who is interested in ensuring we have a robust voting system should do their bit to ensure it’s designed people without an interest in the outcome.

And vote in 18 months’ time.

1993.

Winston Peters is proud to be the independent MP for Tauranga, and about to contest his first election leading New Zealand First. In the year or so before the election, the National and Labour parties arrange between themselves to support an amendment to the Broadcasting Act* so that New Zealand First wouldn’t qualify for a broadcasting allocation. And the broadcasting allocation is all you’re allowed to spend on party broadcasts on TV or radio – you can’t spend your own money – so New Zealand First couldn’t have any radio ads at all.

New Zealand First has been sore about that ever since.

Fast-forward to 2005. Now 13 MPs strong, New Zealand First gets an allocation of $200,000. The 27 MP-strong National Party gets a public allocation of $900,000. Winston was sore about that too.

The Don Brash-led National Party spends up large on TV and radio advertising. Government MPs are later quoted as saying they could tell National had overspent the broadcasting limit, so much advertising was being broadcast.

How much more than Labour did it spend on broadcasting? Actually, it was $83,287.63 less. National got $1,012,493.48 of broadcast advertising, and Labour got $1,095,781.11. Yet the law declared National had had the unfair advantage, and only it committed an offence against the Broadcasting Act.** That election – whose election and broadcasting regulation aims to achieve a level playing field – ended up seeing the Labour Party with an overall advertising spending limit $340,000 higher than National; theirs in turn was more than $1m higher than New Zealand First’s.

That’s bad in itself, but it’s the broadcasting rules that particularly grate. These public funds – provided it vastly different sums to the large parties than the smaller ones, with parties outside Parliament getting even less – are the only money that can be spent on TV or radio advertising. The public funds are also the spending limit, and a party with a $10,000 allocation just isn’t allowed to compete with the established forces, even if they could get 20% of the country to stump up with $10 each to help them do it. The same rules prohibited Television New Zealand from re-broadcasting the opening statements on TVNZ7, and got the Alliance in trouble for a public access radio broadcast airing before writ day.

These rules are the single worst aspect of our election financing system. And the problems with them aren’t new.

The Electoral Commission has been calling for a complete overhaul of the entire system since 1996. 1996 was the Commission’s first election. They’ve repeated those complaints basically every election since. They’ve made slow progress – the political appointees who used to be appointed to take part in the allocation process (one Labour, one National) went with the Electoral Finance Act.

But despite the myriad problems, and the near-universal condemnation, these rules won’t change one bit in the newly announced consensus election financing laws.

Why? Well, the Labour Party opposes change. And the Green Party opposes it too.

The Green Party led by Rod Donald didn’t, but Rod Donald is dead. Back in the day, the Greens thought there should be a separate spending limit on electronic broadcasting, but that it should be same for all parties.

Today, the Labour Party and the Green Party prefer a system where at the next election, National may get a longer opening address than Labour and will probably get more public funds to spend on broadcast advertising than Labour, and will have a higher spending spending limit than Labour. In the interests of fairness and democracy, apparently.

Rod Donald had a better idea. An idea supported by the Greens, and the Alliance, and United Future and ACT. The report of the vaunted Select Committee Inquiry into the Review of MMP records that:

The ACT, Alliance, Green and United parties considered that the current regime should be replaced by a more equitable system of funding. ... The smaller parties noted that under the current regime their allocations are often too small to be effective in terms of television or radio coverage. They felt a general purpose allocation would give them the flexibility to decide how best to use this money in terms of their participation in the democratic process.

Which was pretty much Option B (moderate reform) in the Government’s recent discussion document on election finance reform.

Of course, that was in 2001. Party policy changes over time. So back to Rod Donald: here he is in Parliament in late 2004.

I also would want that inquiry to look into the full issue of the broadcasting funding regime. On the face of it, there is an anomaly at the moment that the two old parties get the bulk of broadcasting funding, which is self-perpetuating, whereas, every other party is barred from spending their own money to match the spending of the two old parties. Personally, I do not think that that is fair, although it is a matter of some debate within our own caucus.

Rod still supported it, although it seems no longer to have been Green Party policy. There was debate within the party – a healthy thing – but Rod kept fighting the fight: here he is in Parliament the next year:

I also might add a personal note that I think it is time that we looked at the issue of parties being able to spend their own money for election broadcasting. It is not a Green Party policy, but there is a certain inequality at the moment in that the two old parties got $600,000 each at the last election and the next ranked parties got $166,000. There is a big gap in between and it perpetuates the system that the two old parties got three times as much exposure through the broadcasting media than any other party. I think it is time for that to be looked at and I am pleased that the commission keeps calling for that to happen, but I am disappointed that the Government does not get on with it. I say to get on with it now, get this inquiry under way before the election, because it never seems to happen in time following an election. Now is the time to start.

Two days later, he seems to have convinced them: the Green Party’s submission to the Electoral Commission, presented jointly by Rod and then campaign manager Russel Norman (and repeated in 2008 by co-leader Russel Norman and campaign manager Gary Reese) includes the following:

We believe the current allocation system should be replaced by a more equitable system of funding political parties to enable them to participate in the democratic process. We would suggest a model similar to the Australian one, in which parties receive funding immediately after an election based on their share of the vote at that election. We do, however, support the maintenance of a cap on the dollar value of parties’ electronic broadcast advertising. We request that the Commission makes recommendations to the Government along these lines.

There should also be a thorough investigation into whether parties should be allowed to spend their own funds on electronic broadcasting up to a spending cap in order to remove the extraordinary advantage currently enjoyed by the two main parties due to the much larger financial allocations they receive from the Commission. We request that the Commission conduct such an investigation.

Rod Donald was right; Winston Peters was right; The Alliance was right, and ACT was right.

There is much room for debate in how to change the broadcasting allocation, there is absolutely no room to debate whether it must change. I say this a lot, and by the time I’ve finished writing this post, will probably have paraphrased myself five times, but the current system regulating election broadcasting is completely indefensible. This is a big call. Just about everything has an argument that can be made for it, even if you’d come out against it on balance. Not this.

The current regulation of election broadcasting is anathema to a fair electoral system. And it makes a mockery of our support for freedom of expression. And despite knowing this, the Government won’t fix it. The reason given in the cabinet paper is particularly galling:

Alongside this, any significant reform of the broadcast allocation will require substantial amendment of Part 6 of the Broadcasting Act 1989, and possibly its entire repeal and replacement with new bespoke provisions in the Electoral Act 1993. This would raise questions about whether the existing prohibition on campaign advertising by the general public on radio and television is a justifiable limit of the right to freedom of expression under the New Zealand Bill of Rights Act 1990.

Let me translate that for you ...

We recognise that the current ban on individuals putting political ads on TV and radio or even running political advocacy slots on access radio is unreasonable and unfair. It breaches the Bill of Rights and is not justifiable in a free democracy. However, this ban was passed in 1989 before the Bill of Rights was law in New Zealand. If we were to amend other bits of the Broadcasting Act now, we might have to re-enact this prohibition, and this would result in the Attorney-General telling everyone that the National Government doesn’t like free-speech, and is ignoring the fundamental human rights of all New Zealanders.

We don’t want him to say that, so if we make no changes to the Broadcasting allocation, we can avoid facing the reality that we’re unreasonable limiting New Zealanders’ freedom of speech, which we’re aware of now, but don’t want to do anything about.

This is an appalling view to take. If the Government knows that one of its laws is unjustifiable in a free and democratic society, it should act to fix it. And it certainly should not use that fact as a reason not to fix something else!

In the debate over how to fix our election financing laws, ACT would argue that there should be no financial limits on election advertising. And when they lost that argument, they’d argue that there should be no separate financial limit on broadcast election advertising. The Green Party might argue for both – a spending limit for parties, and a smaller spending limit within that overall total for broadcast advertising. Both arguments have merit: for ACT, the more information people have with which to make their decision, the better; for my imaginary Green Party, broadcast advertising does not really inform the populace, and published leaflets and manifestos contain the information people actually need to to be able to make informed voting decisions.

Let’s have that debate.

Unfortunately, the only way we can have that debate is if Parliament tells the Government to stuff off when it brings it’s election finance to the vote. Without dealing with the Broadcasting Act, any reform of our political financing system is worse than useless. This is our major opportunity to get this right. If there’s Parliamentary consensus on a flawed system this time ’round, that’s probably it for a political generation. If the major parties in Parliament get to jack up the retention of this appalling system – prohibiting new parties (or old ones – how much will New Zealand First be allocated in 2011?) from challenging them on the airwaves – again, then democracy won't be dead, but it sure won't be working.

It will be too late at the Select Committee. Parliament’s rules prevent a bill amending one law – and amending the Electoral Act is basically all that the bill will do – from being changed into a bill amending another. Even if we convince every MP on the select committee of the need for a fair system of election broadcasting regulation, they won’t be able to put one in there. It may be now or never.

Until Labour accepts the need for reform and until the Greens heed the call from Rod Donald for parity in our electoral laws, then I will have to assume that the concerns about the lack of spending limits on third parties (and broadcasting) in the MMP referendum stem from the same naked political self-interest that seems to drive this. Maybe the Greens will come out and say that there should be no political advertising on TV at all. Fine. That view’s defensible. It’s the law in the UK, and has been upheld by the Judicial Committee of the House of Lords as being proper in a democracy. But even though I wouldn’t go for it, all parties are treated the same, as all parties must be treated the same. ACT and the Māori Party should be telling the government they won't support election finance reform without election broadcast reform. In short, the happy consensus needs to evaporate.

The current system can’t be defended as necessary to make the system fair, or to ensure that smaller voices aren’t overwhelmed by rich and powerful special interests – arguments that were used in defence of the Electoral Finance Bill – this isn’t a level playing field, it’s a statutorily-mandated unlevel playing field. Differing levels of taxpayer funding are probably justifiable, but actively prohibiting smaller players from making up some of the difference with their own money is so wrong I cannot think of a single argument to commend it.

A spending limit of $1m for National’s election broadcasting needs to be a $1m spending limit for Labour’s election broadcasting, and that same limit needs to apply to the Green Party and ACT, even if their call on the public Treasury is somewhat less. What Rod Donald and Russel Norman called “the extraordinary advantage ... enjoyed by the two main parties” is as bad today as it was when they asked the Electoral Commission to speak out against it in 2005.

John Boscawen will put up the good fight, but he’s no Winston.*** Winston would never have let Parliament debate election finance without reminding them of 1993, and this might have been the time he could have exacted political retribution. But that excess was just the most blatant of the iniquities. Banning your political opponents from advertising is about as low as things can get in a democracy, but with the limits the funding allocation imposes on parties outside Parliament now, we’re not much better.

* If someone can explain to me exactly what happened, I’d be grateful. I’ve looked at the legislation, and can’t see it, but it’s something everyone who’s followed Parliament for some time knows occurred.
** Actually, the broadcasters probably committed offences by running the ads, and TVNZ was actually convicted of a Broadcasting Act offence, albeit for broadcasting an election ad between two opening addresses.
*** Both of them will probably consider this a compliment.

I blame Kim Workman. Had he not gotten smart with his Official Information Act requests – the ones that found that the version of three-strikes introduced would have saved precisely none of the lives ACT were trumpetting prior to the election – the highly emasculated form of three-strikes as it was introduced may well have passed. It would only even have effected a very small proportion of the criminal population – the really really bad ones. Not any more.

The automatic life sentence for all third strike offending is gone, but so is the old definition of a strike. No-one should be under any illusion that this means the scheme as amended is in a lesser form than that introduced. It is not. It will affect a far greater number of offenders, and impose life without parole on a far greater range of offenders.

Prior to the election, National's policy was life means life for the worst murderers (maybe two a year). They now appear to have adopted a policy of life means life for the majority of those convicted of murder and manslaughter.

Not all murders, certainly, and not right away (in no respect is the law retrospective) but more than any reasonable definition of “the worst of the worst”, and far more than National's pre-election definition of “the worst of the worst”.

Of course, I haven't seen legislative language – only a media release and news articles almost certainly cribbed from that media release. There may be nuances that haven't carried into the public announcement. But it seems to me – from the public announcement – that second-strike murder and third-strike manslaughter (even where the first strike might have been community service ordered after a guilty plea following a drunken grope twenty years earlier, or even where offending was so minor that it has been clean-slated) will result – in all but the most truly exceptional of cases – in life sentences without the possibility of parole.

Kim Workman is doubtless working on his OIA request as you read, and perhaps I've over-estimated the proportion of murderers with one prior serious conviction (and manslaughterers with two). So it may not be that bad. And we'll probably have this information before the bill passes, so there can actually be an informed debate.

That is one of the good great things about this announcement. The substantial lowering of the definition of a strike – removing any requirement for the offending that results in the warning to involve an actual prison term (let alone one of at least five years) – means that the law that it seems is now likely to pass is a very different law from that which was introduced. And the Government is going to recommend to the select committee that it reopen submissions on the new law. This is an exceedingly rare occurrence, but it shouldn't be. I look forward to having a shot at the changes – there are doubtless still further changes.

The changes themselves:

1. the definition of strike is to be changed to any conviction for a serious offence (as introduced, this was any conviction for a serious offence that resulted in a prison term of at least five years).

2. the definition of serious offence has changed somewhat. The basic rule – as before – is “any violent or sexual offence in the Crimes Act with a maximum sentence of at least 7 years”. But there are exceptions: bestiality was never in; incest is now out, and so too is (simple) assault with intent to rob; aggravated burglary – which has always been in – is still there, but it isn't a crime involving sex and isn't necessarily a crime involving violence.

3. sentencing for the first serious offence (or rather, the first serious offence committed following the enactment of the law) is as it currently is.

4. sentencing for the second serious offence is as it currently is, but the sentence will be ordered to be served without parole (this is where the life without without parole for second strike murder comes in – the normal sentence for murder is life).

5. sentencing for the third serious offence will result in the maximum sentence available for that offence being imposed, unless is it manifestly unjust to do so (manifest injustice is a very high threshold – don't place too much hope on it to avoid serious injustice). This sentence too will be ordered to be served without parole (this is where life without parole for manslaughter comes in – the maximum sentence for manslaughter is life).

6. Finally, the initial proposal of the Sensible Sentencing Trust and ACT's to include smacking as a strike offence has still been rejected.

But – even in it's now much stronger form – this law is still far short of California's three-strike law. It doesn't mandate life sentences on all third strikes. It doesn't apply to crimes committed before it was passed. It doesn't apply to multiple crimes punished at the same time. It doesn't apply to really minor offending – or even serious, but non-violent, offending. David Garrett has – I think credibly – claimed that his initial draft was what three-stikes opponents in the US were fighting for. That claim is even truer now.

I wasn't a big fan of it in its form as introduced, and I'm even less of a fan of it now, but for the moment my thoughts on how to make it slightly more palatable include:

1. limiting strikes to offences resulting in prison terms – even if five years was considered, on reflection by National, to be too long, setting it at a level somewhat above mere conviction might still be acceptable to them.

2. allowing the test for manifest injustice to be invoked on strike one. If offending is of a nature that it is appropriately charged as one of the defined serious offences.

3. limiting strikes to offending punished in the indictable jurisdiction – if offending is serious enough to count as a strike, the prosecution and courts should treat it seriously.

4. allowing the possibility of parole for second strike murder, at least where the first strike involved a sentence of less than five years' imprisonment. This was National's pre-election policy, and is largely consistent with ACT's (who cared much more about third-strike consequences).

5. setting a lower standard than “manifest injustice” before departure from the mandatory components of the scheme. Manifest injustice is a really really high threshold to meet – allowing a little more discretion is a good idea – even if you've decided that judges shouldn't be judging any more.

6. do something about manslaughter. I'm not sure what, but giving a prosecutor the power to seek life without parole for a drink driving, or dangerous driving, causing death charge seems excessive. Some manslaughters you want to count as as strikes – some (e.g. gross negligence – not even recklessness – leading to death during a surgery) you really don't.

The most recent members' ballot saw Sir Roger Douglas' Education (Freedom of Association) Amendment Bill drawn to receive its first reading debate in some three to five weeks. And the National Government – looking to avoid rocking the boat too much in a first term – stubbed its toe kicking the nearest concrete pillar. They will have to support the bill to select committee, and the fight from there will be vicious.

But this shouldn't even be a political issue: not in New Zealand – a country that prides itself on a better-than-average human rights record. This is a human rights issue: and it's more than a little disconcerting that many of those who stood steadfastly against public opposition to civil unions because human rights should not be subject to majority whim will lead the charge against students' civil liberties here.

In 1999, tertiary institutions throughout the country held referendums over whether their students' associations should remain compulsory, or become voluntary. Individual institutions have held occasional referendums since. It is an improvement, but it is not enough. There is no democratic veto over fundamental human rights.

Proponents of compulsory membership of students' associations liken the role played by students' associations to local government. “You can't opt out of local government – so why should you be able to opt out of student government?” I've always thought that a rather poor analogy. If anything, students' associations are residents' and ratepayers' associations – there to push for accountability from the body to which everyone is forced to pay serious cash (if you want to live in an area/get a tertiary education). All students may benefit, but not more than all ratepayers benefit from having someone with an eye on council excess, or all shareholders benefit from the advocacy of the Shareholders' Association. And, for some, the benefit is fundamentally at odds with their entire philosophy – just as many car-owners feel about the Automobile Association's relentless highways push. Students don't have to attend university, just as you don't need to own an automobile – but wouldn't it be nice to have someone looking out for your interests as a driver?

Students' Associations aren't churches. One can separate churches' spiritual role from their charitable one and get kinda close to a comparison with students' associations' advocacy and welfare roles; but, unfortunately, not close enough to make this argument really easy. Compulsory membership of churches is incongruous to the vast majority, but mandatory membership of students' associations is nearly as outrageous.

Voluntary membership would mean the services offered by Students' Associations will decrease – just as voluntary membership of other organisations throughout society means they can't offer as much, or reach as widely as they'd like (or even as widely as would most benefit society). And not all the services they provided would be offered by the universities or the Government. Compulsorily-subsidised student orientations provide excellent touring opportunities for up-and-coming Kiwi bands – but seem an unlikely recipient of Arts Board funding.

Student Choice and other proponents of voluntary membership offer many other arguments for their position: they can point to fraud, frequent ineptitude, and occasional competence. Different associations have at times – often for years on end – perfected the art of deficit spending. They will say that if students' associations faced the threat of students leaving after such shenanigans, they'd ensure they offered a truly great service.

All of that is a sideshow. Anyone arguing for voluntary membership of students' associations from a free-market perspective is missing the point.

Voluntary membership has nothing to do with quality. Voluntary membership of students' associations (and everything else for that matter) is about freedom. Would global suffering decrease if everyone in NZ was forced to join and give money annually to Amnesty International? Quite possibly; but we don't abandon cherished freedoms to save lives and alleviate suffering in the third world, and we shouldn't do it to to get a couple of good gigs.

It seems that successive governments have looked at some of the good work done by students' associations and decided that it was desirable to keep them around; they played a role and offered services that were thought beneficial – to students, and perhaps the wider community. Unfortunately, it was felt that the best mechanism to fund this important welfare service was a poll tax levied primarily on the impoverished.

When Amnesty International wants to advance the fight against global injustice, they pressure governments to act. A few years back, we saw aid organisations pushing the point 7 campaign calling for countries around the world to meet goal of 0.7% of GDP for foreign aid re-affirmed through the Millennium Development Goals. When the Red Cross wants to provide aid in the aftermath of a natural disaster they ask people around the world to contribute – and they ask governments around the world to contribute. And when the Anglican church wants change to occur to lessen about child poverty in New Zealand, they call on the government to raise family assistance, and help put collectors on the streets.

Amnesty International, the Red Cross and the Anglican Church do not call for membership of their organisations to be made compulsory to enable them to do the work themselves. If someone feels that some of the services students' associations provide are so important that students should not be without them they should make the case to the government to fund either the services, or even fund students' associations directly. Arguing for the government to ensure these services continue in this way is looking at a desired end, and coming up with a means.

The short point is this: if you want to limit a fundamental human right – whether it's freedom of expression or freedom of association – you need a really really good reason. You can point to a swathe of wonderful work undertaken by students' associations; you may be able to point to services that will cease. But this doesn't come nearly close enough.

Every one of those arguments will be an excellent reason to join a students' association. None of them will be a good enough reason reason to force others to join. Proponents of compulsory membership of students' association are trying to limit human rights; they should be able to point to a compelling state interest to be advanced. There isn't one.

I do not pretend that voluntary membership will be a panacea for the ills faced by students' associations, or students, or tertiary education. It is not supposed to be – this isn't about fixing something, it's an expression of human freedom. And freedom has consequences. There is a reason that people through various stages of history have gravitated toward authoritarian leaders. At the cost of some freedom the benefit of strong leadership and centralised power to large sectors of society can be substantial.

People will argue that voluntary membership of students' associations won't save students money – that fees invoices will carry student services levies instead of students' association levies, whereby students will end up paying more, for worse service, over which they will have less control. Such people are missing the point as much as the free-marketeers are. Although the fees cap might get in the way, they're probably right. But we pay more for prisons because we don't have a death penalty. And our justice system is slow, and vastly more expensive, because we afford defendants more rights than they do in more authoritarian jurisdictions: sometimes financial expense is the cost of respect for human rights.

Is the fight over compulsory membership of students' associations the equivalent of the push for equal rights in the 60s and 70s? Frankly, no. On a historical scale it's not a big deal. Even for more recent years it's not a particularly big deal. But that we are fighting over things like this isn't a sad indictment of human rights activism; in New Zealand, it's what's left. The battle for legal equality has been fought and won in this country. Most of the things left to fight over are relatively small, and pretty insignificant. This is just a small next step in the inexorable advance of human liberty.