Legal Beagle by Graeme Edgeler


Election Fact Check #8: Electoral Law Consensus

David Farrar is outraged over Labour's announcement that if MMP is retained in the Referendum, they will ignore the independent review, ignore the public submission process, and vote to amend the law in a way to disadvantage its ACT party opponents.

I'm pretty disappointed as well. Radio New Zealand quotes Goff as saying:

"People see a system being rorted - but my advice is that if we vote for MMP, then it will be reviewed.

"If there's a Labour Government, we'll take that rort out the system. You'll have to get five percent to get more seats than simply the electorate seat that you win - that stops the rort."

Mr Goff says people do not want ACT back in Parliament.

As any number of Kiwiblog commentators will point out, Labour didn't exactly try hard to take Sydenham/Wigram off Jim Anderton, presumably at least somewhat in the hope that he might be able to lessen the wasted left vote (as for example he did from 2002-2005, with fellow Progressive MP Matt Robson).

But even that's not really the point. I want there to be a debate about the electorate seat lifeline, and I want there to be a debate about whether we should have a threshold as high as 5% (or have one at all), and Labour has just announced that it's not going to engage on these matters at all.

It's also pretty good evidence for what Jordan Williams of Vote for Change has been saying for quite some time: it's the politicians who will ultimately decide what a remade MMP will look like, not any independent experts. And so far, it isn't looking good. Of course, it's the politicians who would ultimately decide what, for example, a new Supplementary Member system would look like as well, but that doesn't make Labour's decision to ignore public submissions on an MMP review in order to advance its own partisan interest any more palatable.

But my disappointment aside, I'm interested in some of David Farrar's analysis. He argues:

Readers will recall Labour’s Electoral Finance Act, and how they rammed it through Parliament despite massive opposition. This shattered decades of rough bipartisan consensus that significant electoral law changes should be decided by either the public, or with support from (at least) both major parties. The Electoral Act is not meant to be the ultimate prize for the winner, where they get to rewrite the rules in their favour.


By announcing unilaterally what would happen if Labour is in Government, Phil Goff has shattered the hard won agreement Simon Power achieved that significant electoral law changes should have bipartisan support. Goff has shown that if Labour forms Government, they will make partisan changes to the Electoral Act, to help Labour retain power. They have learnt nothing from the Electoral Finance Act.

I will begin by noting that while I was incredibly annoyed with the process used to enact the Electoral Finance Act, to state that it was "rammed" through Parliament is to overstate matters. Talking of "ramming" something through Parliament usually connotes urgency, or a shortened select committee process, or some other mechanism to speed up legislation beyond the ordinary course. None of this happened with the Electoral Finance Act. It went throught a pretty ordinary process, and while there was trenchant opposition,  it was heard and largely ignored, not rode roughshod over via some parliamentary manoeuvre.

But onto the more important claims: that the Electoral Finance Act shattered decades of bipartisan consensus that significant electoral change should be made with support from at least the major parties; and that National and Simon Power worked hard to restore this consensus. Does the weight of history back these claims? The evidence is shaky at best.

Starting with the second claim: it's true that the Electoral Referendum Bill and the Electoral Amendment (Finance Reform and Advance Voting) Amendment Bill (which re-enacts much of the Electoral Finance Act, although with higher amounts and shorter times) passed with substantial support from parties in Parliament. Which was nice, but it wasn't the only electoral law that went through the last Parliament.

So what was the last piece of electoral law enacted following substantial parliamentary opposition? Well that would be the Electoral (Disqualification of Sentenced Prisoners) Amendment Act, which received the Royal assent on 15 December 2010. And when did the House pass the Electoral (Finance Reform and Advance Voting) and Electoral Referendum Bills? 15 December 2010. That's a rather short-lived period of hard-won agreement on electoral law consensus.

David may like to quibble that adopting a piece of law intended to disenfranchise thousands of people typically considered unlikely to vote for your party is other than a significant piece of electoral law, if so, we'll disagree. The opposition was substantial: the only submissions in favour of the bill were from its parliamentary sponsor, Paul Quinn, and David himself. I don't put a great deal of weight on such numbers, so the debate on the third reading is more telling: the only party actually in support of the legislation was National, with Hillary Calvert (in)famously noting her opposition to the legislation before ACT joined with National in voting in favour.

And this wasn't a one-off: National also abandoned the pursuit of consensus in respect of the local electoral law aspects of the legislation dealing with the Auckland Super City, ignoring a protest march about as large as the one John Boscawen organised against the Electoral Finance Bill.

This isn't to say that the National government was wrong with either policy, but for a party that supposedly fought hard to gain agreement that there should be broad (or at least bi-partisan) agreement on our electoral laws, they've show a significant lack of respect for that supposed convention even very recently.

But how about the other claim: that there was a decades-long consensus on bi-partisan electoral law prior to the Electoral Finance Act. Prior to the Electoral Finance Act, the last Labour Government also passed: controversial validating legislation in relation to election spending; constitutionally-dodgy legislation avoiding the need for a by-election as a result of a forced vacancy in Harry Duynhoven's seat of New Plymouth; legislation setting up Maori seats in the Bay of Plenty regional council, and providing a process for other councils to set them up as well; one successful attempt at passing party hopping legislation, and one unsuccessful attempt at renewing it; providing for single transferable vote for health board elections.

This doesn't refute DPF's secondary point: that National isn't as bad as Labour, but we shouldn't forget that during the last Labour government National, under Don Brash, adopted a policy of abolishing the Maori seats (with or without agreement), and John Key went into the last election with a similar policy, albeit with a delayed start date. We can go further back into the "decades" David talked about to see a range of partisan changes to our Electoral laws.  The "country quota" that meant that rural electorates could have lower voting populations than city electorates is going back too far, but the change from using voting age population to total population in drawing the boundaries was, I'm lead to believe, originally used to the same end (rural families tending to be larger than average).

After Labour reformed the Maori seats in 1970s (allowing Maori to choose between the Maori roll and the general roll for the first time, and placing the Maori seats on the same footing as the general seats in terms of size, allowing their number to rise or fall with enrolment), the Muldoon government passed a law, the sole purpose of which was to again artificially limit the then Labour-strongholds of the Maori seats to four, (.pdf) irrespective of the number of people represented through the Maori seats.

While not inconsistent with David's view of a bi-partisan electoral law, we shouldn't ignore National and Labour's joint attempts to tilt the system in their favour by, for example: having government and opposition members on the Representation Commission nominated by the Prime Minister and the Leader of the Opposition; setting up broadcasting rules massively favouring themselves, including in one instance, combining to ensure a newly-formed New Zealand First couldn't advertise on radio and TV at all; and increasing the party vote threshold to 5% from the 4% recommended by the Royal Commission.

I would like the parties in Parliament, and National and Labour in particular, to refrain from amending electoral law out of partisan interest. I would like them to seek consensus in important constitutional legislation, including electoral laws dealing with all manner of things. It seems that, for the most part (disenfranchising sectors of the community excluded), David agrees. But just because that's what we'd like to happen doesn't mean it a regular or recent occurrence, as both National and Labour have shown repeatedly over recent years, with repeated support for, and opposition to, electoral laws with clear partisan agenda.

But back to Phil Goff. Stuff also carries the story:

Labour leader Phil Goff is calling for a law change to stop minor parties "smuggling" in MPs when they're "not entitled".

After campaigning in the Otara market this morning, Goff responded to questions from the media about the "cup of tea" meeting between National leader John Key and Act's Epsom candidate John Banks.

The meeting was designed to encourage National supporters in the electorate to split their vote and support Banks to win the electorate. Banks would likely bring at least one or two additional Act MPs in to Parliament, even if it does not reach the five per cent threshold.

Goff today said that was "a rort".

"This is a way to get a party back in to Parliament that New Zealanders don't want there and John Key's allowing that - in fact, he's not just allowing it, he's making it happen," Goff said.

Key can't make it happen. That's up to the voters of Epsom, and as one of those, Key has announced he's doing what he can to ensure it doesn't happen. He's got one vote, just like everyone else, and it's going to Paul Goldsmith.

"Frankly, I think the law needs to be changed to stop this kind of gerrymander. You either get in because you've got an electorate seat or you get in with list MPs if you get over five per cent.

"But this idea that one party like National can gift you a seat so you can smuggle three or four members of parliament in when you're not entitled to, that's wrong. They know it and New Zealanders know it."

The single seat rule does not gift a party seats it is not entitled to, it ensures that it gets the seats its party vote would entitle it, but for the artificial 5% threshold. If ACT gets four list MPs, it will be because 85,000 or so so New Zealand voters wanted them to have four list MPs, and National and John Key have no say in the matters.

Key dismissed Goff's call for a law changes, saying: "I don't take a lot of what he says seriously."

"That would be a scrapping of MMP," he said, while campaigning in Palmerston North today. "If he's proposing to get rid of MMP, he's welcome to vote it out in the referendum.

"But by definition, you have the situation where the rules are if you have an MP, you bring in all of your vote. If you don't have an electorate vote, then you've got to get above the five per cent thresh-hold. If he says that no longer works, well that's quite a radical change to MMP.''

This is Phil Goff's saving grace. Key's comments are utterly nonsensical. Abolishing the electorate seat exception is not "a scrapping of MMP". Key might recall that not all that long ago, his government set up a process whereby the MMP system may be reviewed after a referendum, and one of the things that review must consider is whether we should keep the electorate seat exception.

MMP does not "by definition" require that where a party has an MP, you bring in all your vote. Other countries with MMP have systems where this isn't the case. And Phil Goff hasn't proposed abolishing electorates, which is the only way one can read Key's comments as possibly making any sense at all.

Such a change would not be a major one. It would be pretty easy to adopt, and the system we'd be left with would still clearly be MMP. I really have no idea what John Key is talking about, but I'm pretty sure he's wrong.

I will end by noting that this piece perhaps doesn't exhibit the tone I've generally adopted in my fact check pieces. If Phil Goff has been misquoted, I will happily retract my criticisms, but if the media reports are accurate, harsh criticism is well-deserved.

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