Legal Beagle by Graeme Edgeler

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A four-year parliamentary term?

The Constitutional Advisory Panel has kicked off its public consultation efforts. One of the issues the panel will look into is the term of Parliament, most likely by assessing whether whether it should be increased to four years, and whether we should have a fixed election. Of all the matters it is discussing, this seems likely to be the one that is most likely to see some traction.

The Prime Minister, John Key, and the Leader of the Opposition, David Shearer, have both come out in favour of increasing the term to four years, as have the leaders of a number of the smaller parties.

Any debate will hopefully be long-lasting and wide-ranging, but there are a couple of issues worthy of initial consideration: "how?" and "why?".

The article carried on Stuff.co.nz notes:

Any change would require the support of 75 per cent of MPs or public support in a referendum. The proposal had failed twice before, in 1967 and 1990.

This is technically accurate - the term of Parliament is contained in one of the reserved section of the Electoral Act, which require a 75% vote in the House of Representatives, or public support at a referendum to amend. However, I do not accept that a 75% majority in the House of Representatives (or even a 100% majority) could legitimately extend the parliamentary term. I am firmly of the view that the allowance for a 75% majority to avoid the hard limit of three years for the term of Parliament is to allow for a temporary extension in a time of national emergency, in circumstances where a referendum couldn't work.

If, for example, a major natural disaster, perhaps on the scale of the Canterbury earthquakes, or larger, were to occur shortly before Parliament was to be dissolved prior to an election, it may be acceptable for the term of Parliament to be altered, in order to ensure that a fair election can be held. The requirement that both the government, and a large segment of the opposition support such a move should ensure that it is not abused by being used unnecessarily, or for unnecessarily long. As such a government would lack the imprimatur of public legitimacy - the democratic mandate of its MPs (and of those in the opposition who support them) expiring after three years - I would expect that government to operate effectively as either a government of national unity, or with regard to the principles of caretaker government. Its role would be to save lives, ensure continuity of necessary services, and set in place the machinery for a fair election to be held as soon as possible.

A decision on a permanent extension of the term of Parliament carries none of the urgency that permits Parliament, with a supermajority, to extend its term in a time of national emergency. Given that it is a decision as to how much control that we as voters have over those who control much of our lives, it is something over which voters must have the final say.

Simply put, any MP who votes to permanently increase the term of Parliament without a referendum will lose my vote forever. And any party which nominates such a person on its list won't be getting my vote either. I don't actually think any of our politicians are considering doing this, but it only seems fair to warn them in case it is suggested.

The question of "how" is obvious, the question of "why", much less so.

I am not opposed to increasing the term of Parliament to four years, but nor am I yet supportive. If a vote were being held tomorrow, I would be voting against an increase, and urging others to do the same. But I am open to persuasion. At the moment, despite this being talked about for a little while (and with the 1990 referendum on the term of Parliament followed discussion of the length of the term by the 1986 Royal Commission on the Electoral System (.pdf)), I remain unconvinced.

The arguments we have be presented of late have mostly been simplistic observations to the effect that "four years seems like a good idea" or "three years is too short". Well, too short to do what? What laws that we don't presently have, do you think we would have today, if we had a four-year term?

One example I have heard offered in the past is a dealing with the long-term affordability of Government superannuation. However, the existence of three-year terms didn't prevent the government from increasing eligibility from 60 to 65 between 1992 and 2001 (over the course of three very different governments), and it didn't prevent the Labour Party from adopting an increase in the age as its policy at the 2011 election, or retaining it to this day.

I can appreciate the theory that a four-year term will enable a more considered policy formation process, better Parliamentary scrutiny of legislation, and less rushed law. It is a nice theory. But there seems to be very little evidence to support the idea that the theory will play out in practice. What is the basis for the belief that if we were to adopt a four-year term, that the concerns we express about the three-year term will actually improve?

We can't be the only country that has considered changing its term of Parliament, when other nations have actually done that, what difference did it make? Are all those other countries with longer terms than ours better governed than New Zealand? In what ways? Have they passed the types of reforms we need, but which people assert we cannot adopt because of our short-term thinking? How exactly did the longer terms help any country which has actually done these things? These may be difficult questions. Other differences in the political culture may account for much of the change we might look at, but no-one has even tried.

And is there really a problem we need to fix? The idea that we cannot do major law reform in this country does not bear scrutiny. During the debate on the third reading of the Income Tax Bill, then Deputy Prime Minister Michael Cullen noted:

The current bill, the Income Tax Bill ... is the culmination of 15 years’ work towards making New Zealand’s most widely consulted law more accessible and user-friendly.

...

The guiding principle throughout has been not to change the law as expressed in the current tax legislation but to re-enact it in as user-friendly a form as possible. The resulting bill, hopefully to be enacted later, is a tribute to the process, and to the people involved in bringing the bill to its second reading: the members of the rewrite advisory panel under Sir Ivor Richardson, the drafters, the tax specialists in both the private and public sectors, and the successive Ministers of Revenue, I think beginning with the Hon Wyatt Creech. He was the Minister who began this process of the rewrite of the Income Tax Act.

I finish by pointing out that we are the only country in the world that has successfully completed this project. Other countries have attempted to do so, but have had to abandon the project part-way through. That in part is because some of those countries have much more complex tax legislation than New Zealand—surprising as that may seem to many users of our tax legislation—and it is actually very, very difficult to complete the process.

Every lawyer, or public policy academic will have an example of a rushed, or ill-considered law that proved difficult to work under. A relatively recent example I have heard offered a lot is the Electoral Finance Act. It was undoubtedly a poorly thought-through law, but the reform efforts that replaced it (which in substance aren't all that different) do show that it wasn't necessarily the term-length which actually caused the Electoral Finance Act's problems.

Over the course of multiple Parliaments we have passed major law reform projects not only with respect to income tax, but search and surveillance and criminal procedure. That it is difficult to prepare and pass such laws in one Parliament, or even in one Government may in fact be one of the strengths of our system.

All the ground-breaking policy we have, we have been able to get with a three-year term. We are often told that our Accident Compensation system is the envy of the world, but countries with four-, five- and six-year terms still haven't been able to enact one.

The strongest argument I have seen is that a longer term would enable governments to do unpopular but (objectively?) good things, in the hope that short-term pain may have subsided in time for the election. There are obvious flaws with this analysis.

This is a democracy, and politicians should seek mandates for their actions. And I simply do not accept that the vast majority of voters are unable to make tough choices if they are fairly presented to us; sometimes, others may not like the choices we make, but they are ours to make. And as unpopular as we are now told Roger Douglas's reforms starting in 1984 were, the Government he was a part of was re-elected in 1987. I don't really see that countries with longer terms are doing all that much 'better' that we are in this regard. The ability of economies in Europe to take 'tough choices' arising from the Eurozone crisis seems entirely unrelated to their electoral calendar.

We are being asked to relinquish a very real measure of our democratic control for the vague promise of a better tomorrow. If someone want to make the case - with actual evidence - please do. Do democracies with longer terms actually have better long-term planning? What reason is there to believe that a four-year term will actually enable us to 'fix' anything that might be 'broken' with our system?

And just because our three-year term is somewhat of an international outlier does not mean we should leap from the bridge that every other country has. Differences in the New Zealand political system strongly tell in favour of a shorter term.

Things have changed since voters rejected increases in the term length in 1967 and 1990, we now have MMP, which acts as somewhat of a brake on governments pushing too far. But other things are steadfast: we retain a unicameral legislature, we lack an entrenched Bill of Rights, and we still have the strongest parliamentary whip of any of the nations we like to compare ourselves to (and I suspect, almost all of the others as well), we don't have binding citizens initiatives, or even ability to call an abrogation vote (citizen's initiatives are legislative proposals advanced from outside the legislature; abrogation votes or citizens' vetoes are referendums that seek to overturn laws recently passed by a legislature), we don't have primary elections, or recall elections, and we don't have a head of state with a power of veto.

Which isn't to say that changing any of these things would be good, but that we have a system which has adopted the option that provides the least check on governmental power in respect of all of them suggests we should be reticent about abandoning the one major democratic check we actually have - our relatively short legislative term.

The push for a four-year term has failed at the ballot box twice. I don't really remember the vote being held on either occasion, but it seems to me that those pushing change failed to convince enough people it was actually a good idea. It's time for those who want this to actually convince a good sized-majority of everyone else that they are right. Start with me.

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