Legal Beagle by Graeme Edgeler

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Referendum Fact Check #1

Welcome to my first (official) fact check of the 2011 Referendum on the Voting System.

In an earlier comment, I mentioned I’d intended to fact check the referendum on the voting system. I’ve already done something of a fact check on one of the Electoral Commission’s own advertisements, and another on a laughable piece in the NBR, but with the “Vote for Change” lobby group publicly commencing its intentions, and Morning Report running three pieces on the referendum, including the first debate between the Campaign for MMP and the Vote for Change lobby groups, today seems like a good time for the Referendum Fact Check to officially begin.

The debate between Jordan Williams of Vote for Change, and Sandra Grey of the Campaign for MMP was pretty good. Some of the arguments might have weak points, or obvious rejoinders, or strong counter-arguments against them, but they’re opinions, about which reasonable people may differ.

For the most part the Referendum Fact Check won’t be looking at those (though I’ll likely have things to say elsewhere). Fact Check is primarily about two things: (1) statements that are just wrong, and (2) material which leave out potentially important information in a way that leaves voters uninformed, if not misinformed.

And today’s first debate (.mp3) between the Campaign for MMP and the Vote for Change only had one major error. And it wasn’t from one of the participants, but from the introduction by the Radio New Zealand host, who said:

“voters will first be asked if they want to keep the mixed member proportional system or change to another method: those who favour a change will then be asked which system they prefer: first past the post, supplementary member, preferential voting and single transferable vote.”

This was an error made multiple times on Radio New Zealand this morning with reporter Chris Bramwell also noting (.mp3):

“In just five months a referendum on MMP will be held alongside this year’s general election. It will first ask whether voters want to retain MMP or change to another system. Then it will give four other voting systems to choose from if voters opt for change…”

 and later:

“The four other systems that voters can choose between if the opt for change are first past the post, supplementary member, preferential voting, and single transferable vote.”

This is wrong.

Voting in the second question is not limited to those who vote for change in the first question.

Voters who vote to keep MMP can also choose from the options in the second question. This is pretty fundamental, and I'm disappointed Morning Report made the mistake so many times.

Chris Bramwell's story also carried the following quote from Green Party co-leader Russel Norman:

“The way SM works is that you have a first past the post system for say a hundred MPs and then the 20 remaining MPs are elected proportionally. So it means that a party with 10% of the support of the country could end up with two seats out of 120 so I don’t call that a proportional or even a democratic system.”

Not Bramwell's fault, but Russel Norman should know better. It’s technically accurate, but is unnecessarily misleading. This sort of supposition about what Supplementary Member might look like isn’t needed. Parliament has already declared that if we adopt Supplementary Member as our voting system, it will have 90 electorate MPs and 30 list MPs (which is incidentally, what the Royal Commission on the Electoral System recommended if we went with Supplementary Member). The point about SM not being proportional is valid, but there is no reason to use misleading statements to support it.

But on to the debate proper. There first bit of missing context concerned the Maori seats:

Morning Report: "You mentioned as well the Maori seats. How do you see that fitting into any change if there is indeed one?"

Jordan Williams: “Well, the Royal Commission recommended that under MMP the Maori seats were no longer needed . I think that because of the way that the Maori seats are worked out it’s not one of our vote for changes primary objectives. It’s not a question that’s in front of us and to be fair I can’t represent what exactly our membership think.”

Sandra Grey: “And at this stage of course the Government has actually said this referendum will not look at the number of politicians, the number of MPs in Parliament nor will it look at the Maori seats. So actually those issues have been taken off the table for us to talk about.”

The statements are all true, but important facts are left out. We're not being asked whether to abolish separate Maori seats, and the referendum can’t see the Maori seats disappear, but a change from MMP would change the Maori seats.

Under MMP there are currently 7 Maori seats. A change to first past the post, or preferential voting, or single transfer vote systems would see an increase in the number of Maori seats to at least 12, and probably 13 seats. A change to the supplementary member system would see an increase at least 9 and possibly 10 Maori seats. The issue of Maori representation will be important for many voters, even if they're not directly in issue. The main campaigners, and the reporters who are interviewing them should be able to let people know about this when it comes up.

The second bit of some contention comes around the argument over the best course of action for people who support MMP, but would like to see changes made to it:

Jordan Williams: “To have that debate New Zealanders must vote for change. If New Zealanders vote to keep MMP at this election we don’t have that debate over the next three years.

Sandra Grey: “We do have that debate because the Government has said if we vote to keep MMP there will be an independent review run by the Electoral Commission and all New Zealanders will be …"

JW: “Let the politicians decide the Changes…”

SG: “No.”

JW: “That’s like asking the turkey to organise Christmas.”

SG: “They’ve said an Electoral Commission review will be held…”

When two people are making largely contradictory claims, it may be useful to have the full context laid out:

If the vote on the first question is to keep MMP, then there will be a review of MMP conducted by the Electoral Commission, which will likely have a process for public input, after which it will make recommendations for change over a number of areas: the 5% threshold, the single seat exemption to the threshold, whether there should be open lists, whether the number of list MPs should change, whether MPs who lose their electorates should be able to come back in on the list and others.

The Government would decide whether to adopt any of the recommendations, or whether to propose different ones. Any changes the government wants would be included in a bill that would be introduced in Parliament and then go through the ordinary processes, with select committee hearings, etc. It would be up to Parliament what changes, if any, to make to MMP. If there was some contention, Parliament might decide to send some proposed changes to a referendum, or might not.

If the vote on the first question is the change to another voting system, this review of MMP will not happen. The Labour party and others at the Select Committee tried to argue that it should, but the Government rejected this.

The Government will determine what it wants the alternative voting system to look like, and will propose a bill to Parliament that would implement it if carried by a majority in a binding referendum. This bill would go through the ordinary parliamentary process with select committee hearings etc. It would be up to Parliament what the final version of the alternative voting system would look like. (None of this is actually not required by the current legislation, but both National and Labour and other minor parties have said they will respect the decision of voters at the referendum this year.)

It is possible that the new Parliament elected at the November general election may decide to hold a review of MMP even if the change vote wins so that the possible 2014 referendum will be between an alternative voting system, and a different form of MMP to the one we currently have, but this is not currently the plan.

And a final piece from the other Morning Report article on the voting referendum. It's not about the referendum itself, but it's an example of factual argument that doesn't quite stack up. In Julian Robin’s piece introducing us to the Vote for Change, spokesman Jordan Williams had the following to say:

“Let’s look at Winston Peters. We’ve had five elections under MMP under two of those, possibly this election a third time it’s been Winston Peters that has chosen who is the Prime Minister.”

Jordan is right for 1996, but that’s it.

The votes in 1999 and 2002 were clear Labour wins, Winston couldn’t have gone with National to form a government even if he’d wanted. I assume Jordan is talking about 2005, but it didn’t happen there either: Winston didn’t have an option between Helen Clark and Don Brash in 2005. National + ACT + United Future + New Zealand First would not have been a majority, they’d also have needed the Jim Anderton or the Maori Party or the Greens to help: just because Winston was in government with Labour doesn’t mean he determined who it was.

Let me know what you all think. I’m particularly hopeful that mistakes like that made by Morning Report this morning won’t confuse voters about the referendum process. I probably won’t be able to review every piece of propaganda or news story, but if you see anything you’d like the Referendum Fact Check to look at, please let me know.

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