Legal Beagle by Graeme Edgeler


Referendum Fact Check #6: Afternoons with Jim Mora

Radio New Zealand’s Afternoons with Jim Mora discussed the voting system referendum on both Monday (.mp3) and Tuesday (.mp3) this week, with Vote for Change’s spokesperson Jordan Williams a guest of the panel on both occasions.

We start on Monday, with panellist Gordon McLauchlan (GM): At one stage Social Credit had 20 per cent of the vote and no members of the House, and those sort of aberrations have continued a lot since then.

Social Credit received 20% or more of the vote in one election: 1981. And following that election, it had two members of Parliament. First past the post does substantially under-represent smaller parties, but it has never been quite that distorted in New Zealand.

GM: The thing is this, MMP to me, is seriously flawed in a couple of places, but not beyond repair, I think it could be quite rapidly repaired … and all the others are kind of shavings, they’re not one thing or the other, the other alternative voting systems.

Of the concerns that can be raised about first past the post (FPP) and preferential vote (PV), that they are muddled and trying to be both one thing and another is not one. They are both systems that make very clear choices: voting systems that favour clear geographic representation over demographic representation and proportionality. Whether the values expressed by such a choice align with yours is one matter, but the values are abundantly clear.

And we now move to his co-panellist Matt Nippert (MN): The biggest change MMP has brought has not been in how we vote the number of boxes but it’s sort of in the political culture which now means government cannot railroad through; it’s not quite all airy fairy sitting ‘round a room and everyone agrees consensus, but you generally need 51% of the House to get anything done.

MMP has lowered the ability of governments to railroad law through Parliament, but to suggest they cannot do it under MMP is a gross overstatement (as The Urgency Project has shown). Also, while you needed more than 50% of the House to get something done under first past the post, more importantly, the implication that a government needs support from more that 50% of voters under MMP is false. MMPs is far better than FPP at ensuring that a Parliamentary majority is supported by a majority of voters, but, for example, the 1996 election saw a National/New Zealand First coalition with 61 seats out of 120, while the combined support the parties received in the election was 47.22%. And following the 2008 election, National with ACT had 63 seats out of 122: a parliamentary majority, but with only 48.58% of the vote between them.

GM: The Australian one interests me, because I understand that Gillard is only there because of their voting system and the way it worked, but very few Australian elections are influenced by their system; over the years, it doesn’t matter an awful lot.

I’m not prepared to call this one false, because I haven’t the inclination to do the number going back years, but it strikes me as highly like that were voting patterns to have remained the same, but with Australia using first past the post, Labour would do a lot better. The fractured vote between the coalition of the Liberals and the National Party (and all the variations of "The Coalition") would like see Labour ‘come through the middle’ in a lot of seats, winning with the most votes, while opposed by more than half the electorate.

MN: This is the preferential, which we actually have for the health boards here. It is awful if you have to number 20 candidates that you don’t even know one of them, and having to number them in order it all gets rather silly towards the end.

We use single transferable vote for health boards, not preferential vote (voting is similar in the two systems, but STV has multi-member electorates and PV has single-member electorates). And under the STV system we use for health boards, voters do not “have to number” all the candidates. Australia requires voters in their PV-elected lower house to number everyone, it is very very unlikely that we would do that for either PV or STV.

Jim Mora (JM): If the country goes for MMP again, do you have faith that you – the voter – will be able to fine tune it in the way you want?

GM: I think that most people who are involved in it realise its shortcomings; I think most of them realise that a single seat MP should not take a host of other members with him. I think a lot of people would sooner see the level perhaps lifted to 7 ~ 7.5% or something like that.

MN: Or reduce it altogether.

GM: Yeah.

JM: So you have faith that between them, after public submissions, that the politicians in concert with the Electoral Commission will make the right choices?

GM: Yeah.

As Jordan Williams points out later, it’s difficult to have confidence that parliament will fix MMP in the way you want, when you note that it could either increase the threshold, decrease it, or abolish it altogether.

Jordan Williams (JW): So if you wanted MMP improved, surely you should keep the option there, so the politicians have a real incentive to change it?

That’s an argument, but it really only flies if the alternative to be put against MMP in a possible 2014 referendum is one that the majority of MPs in the next Parliament will prefer MMP over. If they’d prefer alternative system, they’ll have no incentive to get MMP right at all.

JW: It’s interesting the amount of people I’m hearing during this campaign saying “we could improve MMP”, but there’s seem to be no consensus as to exactly how you would improve it. For example the threshold point: I’m not hearing a particular consensus on whether that 5 per cent should go up [or] down. And of course, secondly, the other main one is the Epsom coat-tailing rule: you’re relying on the National Party Minister of Justice, presumably if National win the election forwarding – assuming it’s a recommendation from the Electoral Commission – pursuing that. Effectively, you’re relying on – if you vote to keep MMP and you want that rule changed – you’re relying on the National Party, effectively, getting rid of ACT.

This is an excellent point: the Electoral Commission review could very easily be ignored by MPs.

I would note, however, that if we’re to place MMP against an alternative system, such as the Vote for Change’s preferred supplementary member, then the politicians will be designing what that looks like as well (and there won’t be a public process before to make recommendations about the details).

Even if people hate the “one seat rule”, we could be having a second referendum which pits an MMP system with a one seat rule, against a supplementary member system which has a one seat rule. If voters want real influence over the review and design of electoral systems, they’re going to have cast not just their referendum votes accordingly, but their election votes as well (at this election and the next).

GM: Hopefully, the politicians – and I think there’s been talk of it – will give it back to the original panel that came up with the MMP format, and they are, I understand full aware, they can rationale where they, why they think they made the mistakes they did.

If there’s been talk of sending it back to the Royal Commission members, then this is the first I’ve heard of it. In any event, one member of the Royal Commission is dead, one is now a Judge of the International Court of Justice, and some of them are now rather old. The Electoral Referendum Act is also abundantly clear that the review will be conducted by the Electoral Commission.

JW: Well, let’s go back to that, because that’s a very good model when MMP came in, you had an expert panel that came up with recommendations, and some of those, sorry most of those recommendations were picked up by the politicians, but they were put to the public. The farce of this referendum is that the politicians have said “vote to keep MMP or vote for change, and if you vote for keep, trust us, we’ll have the final say and tweak MMP.” It’s pretty outrageous. Whereas if you vote to change, we argue that that review should happen anyway – and that’s the Labour Party principled position – and put those improvements, or those adjustments to MMP to the people.

The Royal Commission on the Electoral System made 71 numbered recommendations. Rejected were: 1, 2, 9, 10, 18, 21(b), 22, 23, 24, 26, 27, 29, 31, 33, 34, 35, 37, 38, 39, 40, 41, 42 (it was adopted, but has been undone), 44 (in part), 48, 56 (recently changed), 57, 60 (b) & (c) & (d), 62(a) (but soon) & (b) & (c), 64, 65, 66, 70 (a) (part) & (e), and 71. And some of the other ones relating to the operation of the Department of Statistics about which I don’t have sufficient knowledge may have been rejected too.

On a quick count, this is around 30. So Jordan was right overall, but when we look at the recommendations about the details of MMP (which is simply recommendation 1!), there was substantial change: the Royal Commission recommended an MMP system with: 60 electorates and 60 list seats; 15 electorates in the South Island; a requirement to take account of Māori tribal areas when drawing general electorates; a single electorate quota; a 10% tolerance; no separate Māori seats, Māori roll, or Māori option; a modified Sainte-Laguë system for apportioning seats; a threshold of 4%; and a threshold waiver for parties representing Māori interests. We don't have any of these. The MMP details we carried through from their recommendations were: a closed list, dual candidacy, two votes, the one-seat rule, and the rules for filling vacant seats.

JW: Democracy works because of the threat of being thrown out of Parliament. The trouble with MMP is you get a second lifeline, and that second lifeline is through the party list, and that unfortunately changes the line of accountability.

And as Jordan no doubt knows well, this concern is also present in his favoured supplementary member system.

Jim returned to the referendum on Tuesday afternoon, this time with David Farrar (DPF) and Liz Bowen-Clewly (LBC).

We start with Jordan Williams (JW): [Under MMP] the proportionality of the whole House is determined by the party vote, which means … if Labour lose Wellington Central, it doesn’t really matter because they merely get another list MP, and we think that’s unfair.

This is a complaint Jordan has raised before, but it struck me the other day that he’s never explained exactly to whom this is unfair. It doesn’t seem unfair to Labour or National voters, who are represented in Parliament according to their voter support. And it doesn’t seem unfair to the voters of Wellington Central, who are represented by the local MP they chose. Is there anyone else to whom it could be unfair?

DPF: Jordan, can I ask you why your organisation went for SM rather than STV? Because one of the things I hear from a lot of New Zealanders is they really don’t like the concept of list MPs, and STV is a system where there’s no list MPs. Everyone’s directly elected from the public, but it’s still roughly proportional which people seem to quite like too.

JW: Two reasons. One is that STV is the most complex of all of the systems.

DPF: To count…

JW: It’s important that you understand that the general population understand how a voting system works. Working up and down the country, and talking to various public meetings, the most difficult one understand, by far, is single transferable vote. The second reason why STV is difficult … is that because you have multiple members – between three and seven MPs per electorate – is the electorates are huge. Secondly, STV is generally applied when you have state borders, or clear borders in a country, and in New Zealand, we don’t have that.

LBC: But Ireland have STV and they don’t have state borders.

JW: But again, Ireland is far smaller in area than New Zealand.

This is just a good discussion. DPF asks the question I want asked of everyone who is stumping for one system or another ('why not this other system?'), and gets a reasoned, considered response.

I would note, however, that STV is principally used in countries that don’t have states, or clear internal borders (although use in such places can be less problematic when considering the possibility for gerrymandering electorate boundaries.

JM: If we go back to a system that gives a result based on electorates, like FPP, SM and PV, the number of MPs will slowly but inexorably rise to beyond the 120 figure, and MMP actually prevents this happening, because the number of electorates is allowed to increase if necessary to adjust to the population.

JW: Ah, no. It’s generally accepted that MMP is the only system that requires 120 MPs. All of the other systems could easily work with 99 or 100. The trouble with MMP is that as the number of electorates increase – and that’s because the South Island is guaranteed … 16 electorates, as that as a proportion of New Zealand the South Island gets proportionally smaller, the number of electorates increases. There comes a point where because MMP, the party vote applies to the proportion of the whole parliament, and electorates are generally a bit more decisive than the party vote in order of awarding the winner, it means that as you increase the number of electorates, the number of MPs will need to increase as well. So it’s actually the opposite. MMP requires more MPs than the other systems, because all the other systems, the electorates are smaller, except STV, obviously.

JM: Yeah, I know what you’re saying.

If Jordan is going to claim a “general acceptance” that MMP is the only one of the five systems that requires 120 MPs, I’d welcome his pointing to evidence. The Royal Commission, for example, considered that we should have 120 MPs irrespective of the system we adopted. MMP could also work with fewer than 120 MPs, although that would increase the change of overhang. However, given that the Vote for Change are too concerned about there being a little less proportionality, I’m not sure why that would concern him. He’s right that, in order to have a good change of maintaining proportionality without having too great an overhang, the number of MPs may have to increase, but there are other options: we could decrease the number of MPs in the South Island (the Royal Commission recommended 15, not 16), if an larger Parliament was that much of a concern.

However, as Parliament has expressly states that all the systems will have 120 MPs, and that there will continue to be a fixed number of seats in the South Island under all systems, if population growth continues as it has, all of the systems based on electorate MPs (and that includes) FPP, PV, STV, and SM (if the list is fixed at 30) will see an increase in the size of Parliament over time.

We set the number of MPs under first past the post at 80, but by the time we abandoned first past the post, it had increased to 99.

LBC: Basically, the majority of people who are list MPs, are people who’ve been chucked out by the voting population, and now are there … for life, and they don’t have to answer to the electorate at all.

It is certainly the case that most list MPs have lost electorate contests, but to say that they've been "chucked out" is a gross overstatement. The vast majority of list MPs have never been "chucked out" of an electorate seat. The number of list MPs who come in via the list lifeline after losing electorates seats they previously held is only a small proportion, and far from being there for life, many retire by the following election.

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