Legal Beagle by Graeme Edgeler


It's time for a time for a change

In recent weeks calls for a re-think on MMP have resurfaced. National has re-iterated its policy of asking the public what it thinks of MMP, and there have been the usual responses - those who complain about unelected MPs lacking public mandate, those who wonder why the promised re-vote on MMP has taken so long to come about, and those who accuse proponents of alternative voting systems of "hating democracy". None of this is surprising.

What has somewhat surprised me is the reaction of the Māori Party to the suggestion.

I realise that the Māori Party considers itself among the "MMP Parties", but it really shouldn't. Its lifeblood is the Māori electorate system. It relies in absolutely no way on the party vote. Whatever Atareta Poananga's hopes, it may never earn a list seat.

And it would thrive under a return to first past the post.

National may be pushing for referendum for a number of reasons - it might secretly want a return to first past the post, because of the greater legitimacy directly-elected representatives bring; it might not care, but figures the promise of a re-vote may pick up a few thousand votes from people for whom it may be a deal-maker. Maybe it figures a move to a less proportional - but still democratic - system will enable a stronger government to take the necessary steps as the country moves forward.

Maybe it's just naked self-interest. But that self-interest isn't terribly different from that of those who seem to oppose going back to the public. If National were pushing for first past the post to give them a better chance to govern, isn't Labour opposing it because it doesn't want National to have a better chance to govern? I can't really fault them for bringing self-interest into the calculus - political parties are, well, political. But that self-interest is exactly why questions around the voting system must be taken away from the politicians. That is why answering such questions belongs with the people.

But I'm wondering why the Māori Party isn't into some of that self-interest themselves. The Māori seats were greater supporters of MMP than the general seats. We cannot know why, but at least in part I think it must be because the then proposed Electoral Act 1993 would do away with the restriction on the number of Māori seats that the Electoral Act 1956 imposed. Before MMP, no matter how many (or how few) Māori opted for the Māori roll there were 4 Māori seats. There were 4 Māori seats when there were fewer than 80 electorates and there were 4 Māori seats when there were 99 electorates. The change to MMP finally saw the Māori seats achieve parity of representation - not only with an additional fifth seat, but with a far higher proportion (5 Māori seats against 62 general seats vs. 4 Māori seats against 95).

If this innovation is not abandoned - and I can't conceive that it would be - a change to first past the post would far from eviscerate the Māori Party (the threat it faces is rather the abolition of the Māori seats). It would strengthen them: practically, the Māori party has an effective limit on its power - it is exceedingly unlikely ever to earn a seat other than a Māori seat - which presently form 5.8% of the Parliament.

There are 7 Māori seats now. And 63 general seats. A 120 seat first past the post Parliament would see 12 Māori seats (and perilously close to 13). Even a 100 seat Parliament would see 10 Māori seats. And the Māori Party would stand a pretty good chance of getting nearly all of them nearly all the time (for the near future, anyway). Rather than a maximum of 7 seats in a 120 (or 121, or 123 seat Parliament), the Māori Party's 3-4% of the vote could generate 10% of seats in Parliament, and in close-ish elections (most other than those like we look to be having now) they'd stand a good chance of holding the casting vote in Parliament: a near permanent hold on the balance of power.

[insert cautionary cliché about weeks, time and politics here]

And of course, any situation in which the Māori Party would fare poorly in a race for the 12 first past the post Māori seats would also be a situation in which they'd fare poorly in the effective first past the post race for the seven Māori seats under MMP (with it probably easier to ensure themselves one or two seats out of the 12, than one or two out of the seven).

Add to this that any move to first past the past makes the argument for abolishing the Māori seats somewhat weaker, and it's a little surprising the Māori Party haven't been more open (at least) to the prospect of a referendum.

Which was of course supposed to be the focus of this column.

It is one of the enduring myths of New Zealand politics that voters were destined to have a further referendum to confirm or reject MMP. No promises of such were made before the 1992 plebiscite or the 1993 referendum. The story appears to stem from PM Jenny Shipley's public musings before the first MMP election (i.e. after we actually chose MMP) - she repeated it a couple of times, and talkback callers and letter writers have been repeating it ever since. It's her legacy as Prime Minister.

But that the expectation arises in part from a myth is not a reason to refuse to meet it. 2011 will our sixth MMP election. 2014 would be our 7th. There is no overwhelming movement for change, but there shouldn't need to be. The electoral system should be of the people and it is right that every so often, the people should have their say, alone in the four walls of the voting booth. Three or four times a century - once a generation - doesn't seem too often to obtain anew a public mandate for the way we choose our leaders (we'd be going slightly early this time, but I think it's appropriate given the change to MMP made last time).

Just as the argument has been made that first past the post is 'undemocratic', the argument can be made that MMP is 'undemocratic'. We know that Zimbabwe isn't a democracy because - no matter how many people want him gone - Mugabe seems to be able to stay. At our last election a number of MPs were thrown out by the electorate but returned to Parliament - is that 'democracy'? Under first past the post, of course, Helen Clark might be Prime Minister even though 99% of the country wouldn't even have had the chance to vote for her, much less vote against.

MMP or first past the post may be more or less representative, or more or less proportional, but neither is democratic, and neither is undemocratic. Electoral systems aren't democratic, countries are. New Zealand is democratic. And a choice between two voting systems cannot make or break that - least of all where that choice is made by the people in a free vote, after a fair fight. The two electoral systems are each perfectly legitimate ways to elect a Parliament and Government - and there are arguments for and against both - competing positions it is for the public to evaluate.

Opening the electoral system to direct public input is not scary. Enough time has passed that people may properly know their opinion on MMP, and the idea of referendums (not referenda) shouldn't become a political football. The electoral system is important, but there are far more urgent things about which the upcoming election should be fought. Our politicians shouldn't be afraid of seeking our views on this matter - and should be wary of pushing their own. And it is fitting - and right - that parties across the spectrum support calls for a new public conversation - with our voices to be heard through the ballot.

I support MMP - I'd make a couple of changes at the margins (a lower threshold, for one, a couple of extra reserved sections, and I kinda like the idea of open lists), but I do not see myself supporting moves toward first past the post, or supplementary member, or STV.

So this isn't about MMP.

It's just time.

It might also be time for a number of questions (referenda, if you will). The public haven't had their say on the term of Parliament since 1990. We've never had our say on a voting age below 18. Or restricting the franchise to New Zealand citizens (we're one of very few countries that allows its permanent residents to vote - any Australian in New Zealand for a month before an election can register and vote).

Even though I'm not leaning toward supporting change on any one of these issues, now seems as good a time as any. And I doubt a later election will be better.

I might lose. I'm arguing for referenda on issues where I pretty much support the status quo, so I can't really win, but I think it proper to ask those who might oppose seeking a new public mandate for our electoral system 'why?'.

Do they oppose a referendum on MMP, because they oppose a referendum, or because they oppose first past the post? For many, I suspect it is the latter, and it is a poor rationale. Fear of being in the minority - of democratic loss - is a appalling reason to oppose democratic input. That way lies dictatorship.

I do not particularly care why National hasn't abandoned its policy of allowing the people to reconsider our voting system. And "reconsider" is a loaded word - I never had the chance to consider it the first time round! Anyone whose first election was 1996, or 1999, or 2002, or 2005, or will be 2008 or 2011 hasn't had a chance. Others will have had their say in 1993 but not in the indicative plebiscite that preceded it. In 2011 - the putative date for the first referendum - only those in their late thirties will have known elections other than under MMP. You'll have to be over 40 to have had your views asked on the length of the parliamentary term.

National's motivation is unimportant. If they're pushing for first past the post, or supplementary member in a referendum then I'll look at the effect such changes might have on them and others. But a referendum doesn't affect them - it affects me. And it's nice to be asked.

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