Legal Beagle by Graeme Edgeler


The Northland by-election; or The so-called Tizard Effect

When New Zealand adopted the mixed member proportional (MMP) voting system, Parliament had a bunch of choices to make about the detail of its operate.

With the Northland by-election, we are temporarily getting a lesson in two of them:

  1. That the rules we adopted for MMP mean the proportionality of the House of Representatives is only important after the general election, not to changes between elections.
  2. That counter-intuitive things can happen a list MP wins a by-election (whether from the same party as the MP who has resigned, or a different one).

A full explanation follows, but the too long didn’t read for those of you here simply because someone provided you a link from twitter to clear up some confusion is:

  • If Winston Peters win the Northland by-election, he has the option of resigning as a New Zealand First list MP.
  • Any list MP who resigns is replaced by the next person on the list, In the case of New Zealand first, this is Ria Bond. Assuming Ms Bond is still a party member, and want the job, she would become a list MP, in addition to Winston becoming electorate MP for Northland.
  • If this happened, National’s number of MPs would stay at 59, down from the 60 they had after the election result was declared, and New Zealand First’s parliamentary strength would increase to 12.

There are good reason why we should do it another way, but there are also good reasons why it shouldn't, and this is the way we’ve chosen to do it.

If you are reading this because you live in Northland, you still have time to enrol to vote in the by-election.

Proportionality is set at the election, not necessarily after it

Under the system of MMP we adopted proportionality only matters at the general election. If an electorate MP from one party resigns (or dies, or otherwise leaves Parliament), and an MP from another party wins the resulting by-election, the overall proportionality of the House changes.

This has already happened a couple of times: When Labour electorate MP Tariana Turia resigned, Māori Party candidate Tariana Turia won the Te Tai Hauauru by-election, and the number of Labour MPs, which had been 52 at the 2002 general election fell to 51, and the number of Maori Party MPs grew by one. A similar thing happened when Hone Harawira resigned as an electorate MP for the Māori Party, and was replaced in the Te Tai Tokerau by-election by an electorate MP standing for MANA (also as, it happens, Hone Harawira). But the same principle also applies if the replacement is a different person. If Labour's Willow-Jean Prime wins the Northland by-election, Labour gets an extra MP, and National stays one below its result at the general election.

You might think that in the event a candidate from a different party from that which previously held the seat won a by-election, the party winning the by-election should lose a list MP, and the party which had the MP resign from it should gain a list MP, so that overall proportionality is maintained with the party vote at the preceding general election. There are good reasons why you might do this, especially if the proportionality of the party vote is considered particularly important.

But the simple point is that we don’t. If you look at section 55 of the Electoral Act, you will see all the ways in which a seat can become vacant in Parliament. The seat of a list MP cannot become vacant because a candidate for their party won a by-election in a seat they didn’t previously hold. Look through the rest of act, and you simply will not find anything that says we ensure proportionality remains after a by-election is held.

There are also good reasons why we don’t do this. Sometimes it simply can’t work, for example, when a party not previously in Parliament wins the by-election (which the Maori Party and MANA both achieved). And redoing the list seat allocation after a by-election to ensure proportionality could also completely muck around Parliament.

Winston Peters has announced that he is running in the by-election in Northland, but imagine if, instead of being held in 2015, it was held in 2009, after an election in which New Zealand First got 4.07% of the party vote. The current rule we have is that he would simply have become an MP, replacing the person who previously held the seat, but if we re-did the list allocation, then National would have lost three MPs, and the Greens and Labour one each, so that New Zealand First could have gotten the five MPs their votes and threshold-busting electorate seat would have them get in a proportional Parliament. You can probably see why we don’t do that, as it could easily be very destabilising to Parliament. Of course, in a very close Parliament, like the one we currently have (where, for example, the government’s reform of the Resource Management Act had support of 61 MPs and opposition from 60), not doing it can have the same effect.

By-election-winning list MPs

The possibility of a list MP winning a by-election has come up before, but hasn’t actually happened. Two sitting National list MPs have contested by-elections: Melissa Lee ran in the Mt Albert by-election, and Hekia Parata in the Mana by-election. There were suggestions that Labour list MP Phil Twyford might seek Labour’s nomination for the Mt Albert by-election, but he ultimately withdrew his name from consideration, possibly due to the so-called “Tizard Effect”.

The Electoral Act does not explicitly cover what happens if a current list MP wins a by-election, but most people who have thought about it (ie. me, Andrew Geddis, David Farrar, the Chief Electoral Officer, and the fine staff at the Electoral Commission) generally agree what it means.

If a list MP wins a by-election, they would become the MP for that electorate, but could resign as a list MP, and (like every other resigning list MP) be replaced by the next person on the list.

This could happen whether the by-election winner was from the same party as the MP whose resignation (or death etc.) led to the by-election (thus helping to maintain proportionality), or from a different party (changing proportionality).

The possibility that voting for one person as your MP might result in an entirely different person being elected to Parliament, is known in some circles as the Tizard Effect in honour of former Labour MP Juduth Tizard. There was speculation (or fomented mischief?) that with the new leadership of the party wanting a break from the past, decisions about Labour’s selection for the by-election in the safe Mount Albert electorate were affected by the prospect of Ms Tizard's return as a list MP, if another list MP was nominated.

A list MP winning a by-election hasn’t yet happened, and there are some differences of opinion over the exact process. I’m of the view that the resignation would have to happen before the writ for the by-election was officially returned, but I understand that the Chief Electoral Officer disagrees.

The decision of the by-election-winning list MP to resign is up to them. If they don’t resign, they’re not replaced as a list MP because no vacancy has arisen. They wouldn’t get two votes in the House, or two salaries. If they don’t resign at the time, but then die a year later, I have no idea whether they get replaced once as a list MP and once through a by-election, or just through a by-election. The Electoral Act isn’t especially clear on this point.

Everyone assumes a by-election-winning list MP would resign to allow their party an extra MP, but they could decide not to (if for example, the next person on the party list, has, since missing out at the list at the general elect acted in a way in which means the party no longer wants them as an MP. One of the odd oversights in our electoral law is that the law provides a variety of circumstances in which an MP is forcibly sacked (eg conviction for an offence punishable by two or more years in prison), but it does not apply these rules to replacement list MPs.

It seems likely that at some point, a list MP will win a by-election, but I’m not sure it is likely to be now. Nominations close on Tuesday, and voting in the by-election will be on Saturday 28 March 2015, with advance voting and overseas voting starting on Wednesday 11 March. If you live in Northland, you can check your enrolment here, or can freephone 0800 36 76 56. You can also do this if you don’t live in Northland, but it is slightly less urgent for you :-)

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