Legal Beagle by Graeme Edgeler


MMP or not MMP

The Electoral Referendum Bill, which sets out the process by which we’ll get to vote on whether we keep or ditch MMP at the next election has been introduced into the House of Representatives, and is available for us all to read. Some will, I suspect, being looking at it more closely than others.

The content of the bill is in line with expectations. The Government has made public announcements about what we’d find there, and on a rudimentary first glance the bill seems to reflect these. There are some nice touches. The Bill includes a sample ballot:

Part A
Should the current MMP system be retained?
[Vote for only one option]
I vote to retain the MMP voting system
I vote to change to another voting system

Part B
Regardless of how you voted under Part A, if there was a change to another voting system, which voting system would you choose?
[Vote for only one option]
I would choose the First Past the Post system (FPP)
I would choose the Preferential Voting system (PV)
I would choose the Single Transferable Vote system (STV)
I would choose the Supplementary Member system (SM)

But it also instructs the Chief Electoral Officer to determine the actual order of the options in Part B by lot. Which is nice. And there are some odd things too: the instructions on the voting paper advise voters:

3. You may vote in Part A and Part B or in Part A only if you wish.

Which appears to imply that people can’t vote only in Part B. Quite why anyone would, I don’t know (perhaps just because they can?), but I can’t see any real reason to stop them, and the text of the bill itself doesn’t invalidate such votes, so it’s somewhat strange.

There is some controversy. There are no spending limits on campaigns for or against MMP (or any of the options). And the prohibitions that apply to election programmes (i.e. ads on radio and television) under the Broadcasting Act won’t apply to MMP advertising, which means there could be a lot of third party TV campaigning.

Intriguingly, the Bill itself with the requirements for registered promoters (register to spend more than $12,000, let people know who you are, but spend as much as you like), should give us excellent insight into the likely form of the Government’s soon-to-be-released election finance law.

In short, the definition of referendum advertising is basically the same as the Electoral Finance Act, which one small—but major—difference.
The definition of referendum advertisement begins:
“… referendum advertisement means an advertisement in any medium that— …”
The definition of election advertisement in the Electoral Finance Act began:
election advertisement—(a) means any form of words or graphics, or both, that…”.

If this change carries over to the new election finance law, just about all the stupid definitional problems that arose (email newsletters, hedges, et. al.) will be avoided. I don’t quite like to say “I told you so”, so I’ll note that this was one of the options I put forward to fix that aspect of the Electoral Finance Bill in my select committee submission.

This bill sets up two basic things:

1. the first non-binding referendum, on whether to retain MMP (and what to put it against when/if we have another referendum); and.
2. In the event we choose to keep MMP, requires the Electoral Commission to review it. In this sense, this is actually a binding referendum (although the only action bound to occur is a review resulting in a report).

The next Parliament can ignore that report, and indeed, can ignore a vote for change – although both National and Labour have promised to accept the result (and I’m sure the other parties will too).

Any subsequent – binding – referendum will require a new bill in the next term of Parliament.

We’ll get to vote at the next election on whether we should keep MMP, but it may be that the election result that is actually most important in shaping our electoral system for the years ahead. The exact form that any competing voting system might take when placed one on one against MMP in a binding referendum, hasn’t been decided, and won’t be determined until after the next election. The supplementary member or single transferable vote electoral system that might be designed by a Parliament in which National and ACT form a majority could be very different from the system designed by a Parliament in which the Green Party or the Māori Party hold the balance.

So the process isn’t perfect. But I’m hopeful of gaining meaningful change in the Select Committee. This Bill sets up a process whereby, if we vote in Part A to retain MMP, the Electoral Commission will review our MMP voting system. This is a really good initiative, and should give those who think MMP is okay, but could be improved, a meaningful option in the referendum. The review will look at the following:

1. The threshold for gaining list seats (5% of valid party votes or a win in an electorate);
2. The overhang (when the size of Parliament increases if a party wins more electorates than its party vote would entitle it in seats overall);
3. Dual candidacy (the ability for someone to contest both an electorate and on a party list AND the ability of MPs to contest by-elections);
4. Open lists (whether the party or the voters, or some combination, should determine the order that MPs are elected from the lists);
5. The ratio of list seats to electorate seats, and this has on proportionality;
6. Anything else the Government or Parliament later decides it wants them to look at, or they themselves want to look at, at except Māori representation, and the number of members or Parliament.

While Parliament, and the Government, would make the final call on what – if anything –to do with the recommendations, taking this potentially charged issue out of the hands of self-interested politicians in the first instance is a really good idea.

In fact, it’s so good an idea that I think we should expand upon it. If MMP loses its first round, it will be placed against an alternative voting system in a referendum at the subsequent (presumably 2014) general election. But that alternative system is still pretty hypothetical, just a number of acronyms on a voting paper which might mean different things to different people. It could be an STV system with 60 two-MP electorates, or an STV system with 15 electorates with an average of eight MPs, but ranging in size from six to ten. It could even be a first-past-the-post system with a single MP to be colloquially known as the dictator.

Exactly how that system is designed is pretty important, and it could make or break any second referendum. So my simple proposal is to ask the Electoral Commission to make the first attempt at designing it. As with the Commission’s MMP review, Parliament could ultimately tell them to stuff off, but the sight of self-interested politicians messing with the independent recommendations of an expert body to try to jack-up the second referendum to get a particular result might get people riled in a way that might not happen if the jack-up occurred inside the machinery of Government.

We had a Royal Commission design our MMP system, after a public consultative process, and which Parliament then changed at the margins (the threshold being set at 5% instead of the 4% the Royal Commission recommended being the most important). And the Government and the opposition seem to accept that an independent expert body is the best place to consider and recommend changes to the operation of MMP. I think it's undeniable that those same experts are also the best people to write the first draft of any alternative voting system. The same parameters (no review of Māori representation, or the number of members or Parliament) could be imposed, and the public could get their say early in the process, in time to actually influence the system which might replace MMP. Now if that alternative system is first-past-the-post or preferential voting, there’s not going to much for them to look at (calculating the number of electorates in the South Island, and perhaps revisiting the population tolerance would be about it), but the exact form of a supplementary member system (one vote, or two? how many list seats?) or a single transferable vote system (few large electorates, or many small ones? electorates with fixed boundaries and changing MP numbers, or electorates with fixed MP numbers and changing boundaries?) is a blank sheet.

So, while those of us who find the technicalities of electoral laws interesting will be looking at the detail of the bill in the next month, and making a submission about all the things we think will make sure the referendum runs smoothly – there are bound to be some oversights or drafting errors (clause 31, clause 51(2)(a), I’m looking at you) – this is the thing I think you all should be seeking. Submissions won’t open until next month – Parliament has to debate it first – but everyone who is interested in ensuring we have a robust voting system should do their bit to ensure it’s designed people without an interest in the outcome.

And vote in 18 months’ time.

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