Legal Beagle by Graeme Edgeler


Strange bedfellows

Jordan Williams, formerly of Vote for Change, and Winston Peters, currently of New Zealand First, have had a few things to say to and about each other recently, with Jordan finding fault with Winston for causing instability under MMP, and Winston encouraging Jordan and his "limited skills" toward easements and licences to occupy, rather than constitutional law.

While unsurprising, it is still a little odd, because they were commenting in light of the Electoral Commission's MMP proposal paper - on which they are largely in agreement.

In 1993, voters agreed in a referendum to an MMP system. And the system we agreed to had a bunch of details - it included a 5% threshold, and it included the one-seat rule.

We held a further referendum at the last election. And at that referendum, the Electoral Commission conducted a public information campaign explaining what each of five systems involved. In respect of most of them it was pretty general in its description - for example, it didn't say whether there would be a party vote threshold for supplementary member, and only gave an estimate of the number of multi-member electorates there would be if we adopted single transferable vote. But for one system - MMP - it was very specific:

Under MMP, New Zealand is divided into 70 electorates ... to get any seats in Parliament, a party must reach at least 5% of the party vote, or win an electorate seat.

And, as we know, it was this system which won. With the promise of a review, if it did, but no idea whether any changes would be good, or bad, or welcome at all. Keep MMP was the option for voters who wanted the MMP we have now, and those who wanted MMP with many changes.

In my submission to the MMP Review I argued for quite a few substantial changes to our voting system, which - while still recognisable as MMP - could be seen as a vastly different system. However, I noted in my submission, and strongly reiterated in person, that the view was mine: I like to thing it was considered and well-argued, but it remained the view of one person and if enough people disagreed with me, then the system shouldn't be as I want it, but as we do.

But a further referendum doesn't seem likely to happen (at least one MP has gone so far as to - falsely - say people voting at the referendum knew we wouldn't get a further referendum on any changes) and Jordan Willams has (repeatedly!) criticised the process by which the review will now be considered as being like asking turkey to vote for an early Christmas. The Electoral Commission has recommended against a further referendum, but one hasn't been ruled out. I note in particular that constitutional lawyer Mai Chen, in a January Nine to Noon slot looking forward at the year in public law, in answer to the query "... it doesn't go out again to a referendum?" responded "well what the Prime Minister has said - and it's also confirmed in the speech from the throne that was given in December, 21 - is that if there are recommendations for change, then the Government will put it to the electorate again." I haven't had any luck finding a reference (the reference to the speech from the throne is in error, but I've no reason to doubt that the suggestion came from somewhere).

Winston Peters has stated that he considers the proposed changes to MMP as undemocratic.* This view has disconcerted some, who looked at the clear vote to adopt MMP, the stronger vote to keep it, and the large number of submissions on the review as the epitome of a democratic process, but the simple point remains that we have very little idea how much genuine support there is for changes to MMP at all, let alone the particular ones tentatively proposed, or whatever final recommendations may come from the Commission, or whatever final bill may emerge.

The New Zealand First Party has a list of 15 Fundamental Principles. One of these is:

Electoral reform will be determined by the electors. The Government’s duty will be to ensure the fair representation of all views and the holding of appropriate referenda.

Which is where Jordan, and Winston, and I, find common ground. A few thousand of the politically motivated among us have submitted to the Electoral Commission, but the voices of the vast majority haven't been heard on the question of whether they're happy with status quo MMP, or want the smallish change the Commission is proposing, or would welcome more substantial change. Which is wrong.

The next step in the review process is for the Electoral Commission to finalise its recommendations to the Minister of Justice. She will then get advice from the Ministry of Justice, and may take proposals to cabinet, which, after consultation with government partners, will decide what changes - if any - to include in any government bill to be placed before the House. Which is the way every other government policy is enacted. I've no reason to believe the government will seek to do anything particularly - or even slightly - egregious during this process, but it doesn't seem likely to result in the enactment of the form of MMP the public support. We're not likely to be given a choice between the status quo and any alternative, and given the interest our present MPs have in the outcome, this is a little sad.

[*Peters has also stated on at least a couple of occasions that the Royal Commission said that an MMP Parliament could operate effectively with 100 MPs. To the contrary, it devoted an entire chapter of its report in support of increasing the number of MPs - under either first post the post or MMP, concluding at one point "... this suggests an ideal size for the House of about 140 members" before compromising on 120, because they were aware it would be unpopular. "We must stress that ... an increase to 120 is the minimum necessary to help Parliament meet the demands that will be made of it during the next generation."]

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