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Saturday, 14 February 2009

Is the MMP referendum likely to result in electoral reform?

NZ Lawyer Online article by Mai Chen, partner, Chen Palmer New Zealand Public Law Specialists

The Government has promised a binding referendum no later than 2011 on whether voters want to consider alternative electoral systems to MMP. This comes at a time when we can fairly assess the merits of MMP, having now had five general elections since MMP was adopted in 1993.

Our political parties have learned to operate under MMP (indeed a dwindling proportion of MPs have first-hand experience of the pre-MMP era), and they have developed constitutional conventions and practices to accommodate MMP, which are now recorded in the Cabinet Manual. Our political culture is now used to ‘agree to disagree’ provisions under different configurations of support which allow coalition governments (mostly minority governments) to govern from day to day.

The skills for which the Right Honourable Helen Clark was often lauded, in governing under MMP (with a minority Government and disparate ‘support’ parties), seem to have been easily acquired by her successor, the Honourable John Key, despite Key never having been in Government. The new Prime Minister is now operating comfortably with a minority government under the MMP system after only six months in office. So comfortably, in fact, that this may be undermining public sentiment for change. It ain’t broke, Kiwis may say, so why fix it?

Opponents of MMP argue that this electoral system prevents strong government and it gives minor parties too much power. That appears to be belied by the dexterity of successive MMP Governments in signing up support agreements. Even the Greens, who vowed at the last election not to form a Government with National, are now working in cooperation with the new government. Far from inhibiting strong government, these agreements mean the Government can usually get its way on major policy and legislative changes, with many examples of very rapid decision making on major changes, including the passage of legislation under urgency.

The result of these agreements has been a noticeable shift of power in Parliament, as that is ultimately where the Government needs the numbers to pass legislation implementing its policies. In contrast to the last Government, the current Government’s Cabinet and Caucus, together with the caucuses of the support parties, are now closer to exercising the kind of ‘elective dictatorship’ that was a feature of FPP Governments (albeit with more than one party). It reverses in part the dispersion of power away from the Executive to Parliament that was a feature of earlier MMP Governments.

There are undoubtedly concessions in the support agreements for minor parties, such as the Review of the Foreshore and Seabed Act 2004 and the special Select Committee review of the Emissions Trading Scheme legislation. But the Government has also managed to push through major legislative changes, often under urgency, on matters including the Resource Management Act 1991, thermal electricity generation, national education standards, law and order, and the soon-to-be introduced legislation under urgency on Auckland governance.

The National Government’s MMP referendum promise

There is little doubt that National will fulfil its promise to hold the binding MMP referendum – it is working hard to establish a track record of doing what it says. But predicting whether a majority of New Zealanders will decide that they want to consider a different electoral system is a hard call. With New Zealand in the midst of the worst recession the world has experienced in a very long time, Joe Average is unlikely to get excited about electoral reform, especially when this minority Government is operating so well. One would have to bet on the power of status quo inertia, and the fact that New Zealanders are generally not passionate about electoral systems.

Key announced in his speech to the Annual National Party conference on 3 August 2008 that National would hold a binding referendum on MMP no later than 2011. He said:

“[W]e’ll open our ears to New Zealander’s views on their voting system.

“New Zealanders have had to wait long enough for a chance to kick the tyres on MMP. So, National will give them that chance by holding a binding referendum on MMP by no later than 2011.

“And, if a majority of voters decide MMP is not their preferred electoral system, we will offer them a choice between a range of electoral systems to replace it.”

The Relationship and Confidence and Supply Agreement between the National Party and the Maori Party, dated 16 November 2008, states:

“Status of the Maori Seats
“…Both parties agree that there will not be a question about the future of the Maori seats in the referendum on MMP planned by the National Party.”

This promise was confirmed in the Speech from the Throne delivered by Governor-General, the Honourable Anand Satyanand, on 9 December 2008, which stated the Government’s position:

“My Government’s confidence and supply agreement with the Maori Party further sets out its intention to establish a group to consider constitutional issues including Maori representation.

“In addition to a consideration of these issues, it will give New Zealanders the chance to have their say on the Mixed Member Proportional representation system that has formed the basis of this country’s parliamentary elections since 1996.

“This will take the form of a binding referendum, and if a majority of voters decide they want to consider other electoral systems, the new Government will offer them a choice of a range of systems to replace it.”

A spokesperson for Justice Minister the Honourable Simon Power, who will manage the referendum, said no Cabinet papers on the issue had yet been prepared, but that announcements would be made later this year (“MMP opponents steel for battle”, Sunday Star Times, 19 April 2009). The Prime Minister said that because two referenda might be needed, any change was unlikely until the 2013 election or “possibly later” (“Labour would not support MMP referendum – Clark”, Dominion Post, 5 August 2008).

Legislative requirement to change or repeal MMP (entrenched)
It does not matter if Labour and all of the minor parties, except ACT, would vote against amending or repealing MMP. National can use the majority at a public referendum to reform this entrenched provision. Under section 268(1)(f) of the Electoral Act 1993 (Act), section 168 of the Act, on the method of voting, can only be repealed or amended if passed by a majority of 75 per cent of all members of the House or if it has been passed by a majority of votes at a poll.

New Government firmly in control of the law-making process
The key determinant of a Government’s ability to govern is whether it can pass laws to implement its desired policies. The election of the forty-ninth Parliament has seen a considerable shift in the balance of power within Parliament. MPs from the new National-led Government are much more firmly in control of select committees because as Standing Order 186(1) states, “the overall membership of select committees must, so far as reasonably practicable, be proportional to party membership in the House”.

Last term, the outgoing Labour-led Government faced a set of select committees that exercised an unprecedented degree of independence. In each Select Committee, Labour was forced to rely on the goodwill of a collection of minor parties in order to patch up legislation and to resist demands to conduct embarrassing public enquiries that dragged attention away from Labour’s preferred agenda.

This term, the National Party has an outright majority on five significant Select Committees: the Health, Social Services, Justice and Electoral, Government Administration, and Transport and Industrial Relations Committees. Moreover, with the help of just one support party MP from either its political left or right, the Government also controls a further four committees: the Education and Science, Law and Order, Local Government and Environment, and Commerce Committees. National is not short of options given its relationships with the Maori, ACT and United Future parties, and most recently, the Green Party.

Confidence and Supply arrangements with ACT and United Future create a commitment to form a majority with the Government across as many Select Committees as possible, although individual bills are taken on a case-by-case basis. The Maori and Green parties have no such obligation; however, the Maori Party (along with ACT and United Future) agrees to support the National-led Government on procedural motions in select committees, unless it previously advises otherwise. The Green Party also agrees to consider facilitating Government legislation via procedural support on a case-by-case basis.

The result is that in nearly every subject area, the Government can control the agenda and, in reality, the decisions that select committees take. Select committees are also more likely to operate on a ‘no surprises’ basis. The Government has already committed to operating a no surprises policy in terms of procedural motions it intends to put before a select committee in its agreements with ACT, United Future, and the Maori Party.

The most significant consequence of the Government’s control or potential to control the bulk of select committees is that, where it takes a firm view about the shape of legislation, bills are less likely to change. Ministers will continue to look to select committees to iron out any minor creases formed during drafting; however, submitters should not mistake changes in the detail that enhance workability for willingness by a select committee to recommend substantive policy changes in its report back to Parliament.

The volume of legislation that was passed under urgency and not referred to a select committee in the first 100 days illustrates the new Government’s ability to dictate process in Parliament. A more recent example is the Parole (Extended Supervision Orders) Amendment Bill, which removed potential loopholes from the extended supervision regime for serious child sex offenders. This Bill was introduced, read a first, second, and third time, and passed in the same sitting with leave (unanimous agreement) of the House and without being referred to Select Committee. This was despite a Report being tabled by the Attorney-General under the New Zealand Bill of Rights Act 1990, which concluded that the Bill appeared to be inconsistent with the rights against retroactive penalties, double jeopardy, and arbitrary detention.

Key arguments for reconsidering MMP
From the experience of the five MMP Parliaments so far, the key arguments against MMP appear to be:

(a) MMP results in ‘indirect’ elections, as people are electing their Parliament, but not their Government (Joseph, “MMP and the Constitution: Future Constitutional Challenges”, paper presented at the Symposium on MMP and the Constitution: 15 years past; 15 years forward, 27 August 2008). Defenders of MMP note that, as it has matured, voters have demanded that parties provide some indication before polling day of their post-election coalition preferences, as happened in the 2008 elections, for example. Hence, voters do have a reasonable idea of the position the parties will take post-election when deciding who to vote for (Geddis, Electoral Law in New Zealand: Practice and Policy, Wellington, LexisNexis, 2007, 39).
(b) MMP gives small parties disproportionate power. The tail is wagging the dog, and small parties gain concessions they wouldn’t (and some would argue shouldn’t) otherwise get. This includes ministerial roles for leaders of support parties, like the Right Honourable Winston Peters becoming the Minister of Foreign Affairs under the last Government, and the Honourable Peter Dunne becoming a Minister in successive Governments, including this one.
(c) MMP makes it more difficult for the Government to control its own legislation. It is unlikely under MMP that any one party will ever achieve an outright majority of the vote, making them dependent on cobbling together majority coalitions with various support parties.
(d) MMP weakens leadership. This is particularly serious in a recession where quick and sometimes unpopular decisions need to be made for the economic benefit of the whole country.
(e) MMP produces two classes of MPs, electorate MPs and ‘unelected’ List MPs. The latter allows failed electorate MPs to still get into Parliament, and also empowers the party hierarchy (Joseph, op cit).

To varying degrees, these problems could be addressed by reforming the MMP system, rather than changing to an alternative.

Reforming MMP
The lack of disproportionality between votes and seats as in the 2008 election has been criticised because:

(a) The Progressives and United Future received less than one per cent of the party vote, but the Honourable Jim Anderton and Dunne both won electorate seats;
(b) ACT got 3.65 per cent of the party vote, which is under the five per cent threshold, but won an electorate seat (the Honourable Rodney Hide for Epsom) and ended up with four List seats (3.65 per cent of 120 seats equals five seats in total); and
(c) New Zealand First missed out on electorate seats so it did not get any List seats in Parliament, even though it got a higher percentage of the party vote than ACT (4.07 per cent), as its party vote did not meet the five per cent threshold.

This could be remedied to some extent by either:

(a) Reducing the threshold to three per cent or removing the threshold altogether, which would likely result in a greater proliferation of smaller parties; or
(b) Requiring all parties to meet the five per cent threshold before they can have any List seats over and above their constituency seats. In the 2008 election, this would have meant that ACT would only have one MP, and the only minor party to obtain any List seats would be the Greens who won 6.72 per cent of the party vote.

Implementing either of these options would only require the amendment of section 191 of the Act, which is not entrenched under section 268 of the same Act.

Concerns about the potential for ‘overhang’ MPs under MMP, as seen in the forty-seventh and forty-eighth Parliaments, can be addressed by abolishing the overhang provisions in the Act, which would fix the size of Parliament at 120 MPs (Levine & Roberts, “MMP and the Constitution: Future Political Challenges”, paper presented at the Symposium on MMP and the Constitution: 15 years past; 15 years forward, 27 August 2008).

There are, however, criticisms of MMP that are difficult to remedy, such as the ‘unelected’ List MPs. But the difficulty is that other types of electoral systems also have pros and cons. For example, the Prime Minister has said that a Supplementary Member (SM) system would be included in the referendum list as a possible replacement, along with Single Transferable Vote. SM is similar to MMP in that it has both electorate seats and List seats, but the key difference is that only the List seats are proportional to the party vote. SM would result in National getting more MPs. If the 2008 election were contested under SM rather than MMP, National would have got 65 seats out of 120 as opposed to the 59 seats out of 122 they got under MMP.

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