A bunch of legal and political studies academics think the proposed Electoral (Integrity) Amendment Bill (or, party hopping law) is a bad idea. Here's why.

Today a group of 19 legal and political studies academics submitted our joint view that the Electoral (Integrity) Amendment Bill is poor policy that should not be enacted into law. 

The submission primarily is the work of Profs Claudia Geiringer and Elizabeth McLeay from VUW. I spoke to Newsroom about it simply because they were unavailable to do so ... and I'm putting the submission up below so that the full text of our views is available. Thanks to all who signed on.

 

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Justice and Electoral Committee 

Submission on the Electoral (Integrity) Amendment Bill

 

This joint submission is from a group of 19 legal academics and political scientists, whose area of research speciality includes constitutional law, electoral representation and parliamentary practice:     

  • Natalie Baird, University of Canterbury School of Law.
  • Dr Fiona Barker, Victoria University of Wellington School of History, Philosophy, Political Science and International Relations.
  • Dr Eddie Clark, Victoria University of Wellington Faculty of Law.
  • Dr Joel Colón-Ríos Victoria University of Wellington Faculty of Law.
  • Professor John Dawson, University of Otago Faculty of Law.
  • Professor Andrew Geddis, University of Otago Faculty of Law.
  • Professor Claudia Geiringer, Victoria University of Wellington Faculty of Law.
  • Professor Janine Hayward, University of Otago Department of Politics.
  • Professor Philip Joseph, University of Canterbury School of Law.
  • Dr Dean Knight, Victoria University of Wellington Faculty of Law.
  • Dr Lindsey Te Ata o Tu MacDonald, University of Canterbury Department of Political Science and International Relations.
  • Adjunct Professor Elizabeth McLeay, Victoria University of Wellington School of History, Philosophy, Political Science and International Relations.
  • Dr Kate McMillan, Victoria University of Wellington School of History, Philosophy, Political Science and International Relations.
  • Sascha Mueller, University of Canterbury School of Law.
  • Steven Price, Adjunct lecturer, Victoria University of Wellington Faculty of Law.
  • Marcelo Rodriguez Ferrere, University of Otago Faculty of Law.
  • Leonid Sirota, Auckland University of Technology Law School.
  • Professor ATH Smith, Victoria University of Wellington Faculty of Law.
  • Dr Claire Timperley, Victoria University of Wellington School of History, Philosophy, Political Science and International Relations.

 

Introduction

We oppose the enactment of this Bill, with or without amendment. We believe that it represents an undesirable and harmful extension of legal regulation into an area that is better controlled by political imperatives and electoral judgments. No matter how well intentioned, this proposed legislation will have negative effects on our system of representative democracy.

We accept, as one must, that an MP leaving their party during the parliamentary term distorts the proportionality of Parliament. At least where other factors are not seen by the public to justify the defection, this has the potential to undermine the credibility of our electoral system. For this reason, “Electoral Integrity” legislation has an intuitive appeal.

However, there are at least four reasons why it is nevertheless inadvisable:

  • Because “Electoral Integrity” legislation creates more problems than it solves;
  • Because political defections are not a major problem in New Zealand;
  • Because there are effective political sanctions where they occur; and
  • Because it may well be in violation of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).

We develop these four points briefly below. We then conclude by returning to the point about distortion of the proportionality of Parliament, and suggesting that this principle is neither sacrosanct nor immutable under the MMP system.

 

“Electoral Integrity” legislation creates more problems than it solves

 “Electoral Integrity” legislation responds to the problem of unscrupulous political defections (such as the paradigmatic case of Alamein Kopu in 1997). But it creates at least two problems.

 The first is a problem of over-breadth. Not all political defections are unscrupulous; indeed, the vitality of our multi-party electoral system relies on a degree of healthy political re-alignment during the course of the electoral cycle. That is particularly so in the latter half of the electoral cycle, when MPs are re-positioning themselves for the next electoral contest – as happened, for example, when Jim Anderton and his allies wished to leave the Alliance Party in 2002 to establish the Progressive Coalition Party.

 To take this issue further, resignations may actually resolve situations of political deadlock. This would not be possible were “Electoral Integrity” legislation to be implemented.

 “Electoral Integrity” legislation struggles to distinguish between the “lone wolf” defection, as exemplified by the Alamein Kopu example, and the party split or merger situation, as exemplified by the establishment of the Progressive Coalition Party. This was New Zealand’s experience with “Electoral Integrity” legislation between 2001-2005. It necessitated the bizarre situation of Anderton and his allies remaining within the parliamentary Alliance party while campaigning under a different banner for the next election.

In any event, even “lone wolf” defections may be politically justified in some circumstances. For example, after Jim Anderton left the Labour Party in 1989, he claimed that “I did not leave the Labour Party; the Labour Party left me”, meaning that it was the Party, not Anderton, that had departed from its electoral promises. Whether that is so in any particular case is a political, not a legal, question that should be left to political judgement and electoral sanctions.

The second problem with “Electoral Integrity” legislation is that it places too much power in the hands of the party hierarchy at the expense of individual MPs. The vitality of our system of representative democracy relies on an on-going and healthy tension between party loyalty and individual conscience.

That tension is as important under the MMP system as it was under FPP. The introduction of MMP may have highlighted the importance of party loyalty. However, intra-party dissent remains an important part of the healthy functioning of our multi-party system.  Healthy democracies can tolerate dissent. “Electoral Integrity” legislation empowers party hierarchies to stifle debate within the party—to use party rules and party disciplinary procedures to force dissenting MPs not only out of the party but out of the House itself. Indeed, its very existence, and the prospect of its use, leading to dismissal, might inhibit the expression of dissenting views by MPs.

This legislative effect was confirmed by the Supreme Court’s interpretation of the meaning of: “acted in a way that has distorted, and is likely to continue to distort, the proportionality of political party representation in Parliament as determined at the last general election” (as found in the proposed s 55D(a)).

When the meaning of this term was considered by that Court in the case of Awatere Huata v Prebble [2005] 1 NZLR 289, Elias CJ stated:

“I am of the view that the scheme of the statute is that the proportionality of party political representation in Parliament is distorted when a member continues to serve in Parliament after ceasing to be a member of the political party for which he or she was elected.” (At [43]).

Her Honour then went on to say:

“Just as members are free to move on from the party, the party is free to leave members behind, if it acts in accordance with its rules of association and if it is willing to wear the political risk of such action with the electorate. Whether the change in affiliation is as a result of the party acting to exclude the member of Parliament from its caucus or whether it is a result of the member of Parliament resigning or becoming independent, distortion of the proportionality of political party representation in Parliament as determined by electors equally results if the member continues to remain as a member of Parliament.” (At [50]).

To paraphrase, a political party’s decision to expel or suspend an MP from the part, using its own internal rules, provides the necessary legislative grounds for that party’s leader to trigger the process to have the MP’s seat declared vacant. In other words, the rules of each party become the de facto rules for retaining membership in Parliament.

A further significant problem created by “Electoral Integrity” legislation is that it inevitably distinguishes between constituency and list MPs in that the former have the opportunity to contest the resulting by-election while the latter do not. All MPs should have the same rights and responsibilities: contrary to the opinion of many, list MPs are not ‘second-class’ representatives of the people.

 

Political defections are not a major problem in New Zealand

Internationally, countries that have legislated to sanction “Electoral Integrity” have often done so against a background of mass political defections, posing a significant threat to the integrity of the democratic system. New Zealand’s previous “Electoral Integrity” legislation also may be seen in this context.

The 1993-1996 parliamentary term did see a number of political defections, as MPs positioned themselves for the new multi-party system. In the five years between the first MMP election in 1996 and the introduction of the “Electoral Integrity” legislation in 2001, along with Alamein Kopu’s political defection was the defection of Frank Grover in 1999 to form the Christian Heritage Party, and the mass defections from the New Zealand First Party that occurred in 1998.

It is questionable whether these post-MMP party-realignments really justified the introduction of “Electoral Integrity” legislation in 2001:

  • Grover’s defection was late in the electoral cycle, and enabled him to re-position himself as a Christian Heritage Party MP to fight the 1999 election;
  • The eight New Zealand First defections occurred en masse, after the National Party-New Zealand First coalition disintegrated in August 1998, and are better thought of as an example of the party split situation discussed above.

In any event, it is to be expected that there would be a high degree of movement during the early period of MMP politics given the entry into Parliament of a large number of new parties, represented by politically inexperienced MPs.

However, there simply is no evidence of such a problem continuing today. In the thirteen years since the electoral integrity legislation expired (at the 2005 election) there are only four examples of MPs leaving their party part-way through the parliamentary term and remaining in Parliament without contesting a by-election:

  • Gordon Copeland (who left United Future in May 2007 and contested the 2008 election as a candidate for The Kiwi Party);
  • Taito Phillip Field (who left the Labour Party under threat of expulsion in February 2007 and contested the 2008 election as a candidate for the New Zealand Pacific Party);
  • Chris Carter (who was expelled from the Labour Party in October 2010 and remained in Parliament for the rest of the term as an Independent MP); and
  • Brendan Horan (who was expelled from New Zealand First in December 2012 and contested the 2014 election as a candidate for the NZ Independent Coalition).

This is hardly evidence of a major threat to the integrity of the electoral system. Further, with the exception of Gordon Copeland, all of these MPs were either expelled from the party or left under the impending threat of expulsion—a somewhat different situation from the paradigmatic case of an MP choosing to re-assess their political affiliations part-way through an electoral cycle.

 

There are effective political sanctions for “Electoral Integrity”

The most obvious sanction for an MP who leaves her or his party is the unlikelihood of being re-elected. In our electoral system, the public speak every three years. The New Zealand public repeatedly has shown its lack of tolerance for political defections. Of the post-1996 examples listed above of MPs who left their party and chose to remain in Parliament without facing a by-election, not one was re-elected to Parliament at the next general election.

The occasional example of an MP remaining on a parliamentary salary for the remainder of the electoral cycle may be undesirable, but it is a small price to pay to avoid the negative effects created by “Electoral Integrity” legislation.

In any event, there are other political sanctions which may account for why the incidences of party hopping have been so rare. They include:

  • public and media disapproval;
  • party pressure and disapproval; and
  • the practical and financial disadvantages of becoming an Independent.

Unlike legal sanctions, political sanctions can distinguish between principled and unprincipled political behaviour. For example, Tariana Turia left the Labour Party in 2004 in the face of widespread dissatisfaction amongst Labour’s Māori voters over Labour’s sponsorship of the Foreshore and Seabed Act. As Turia was a constituency MP, she was able to resign from Parliament and (successfully) contest a by-election. But if she had been a list MP, it is far from clear that it would have been “unprincipled” of her to have resigned from Labour and remained in the House.

 

Electoral integrity legislation may well be in violation of the New Zealand Bill of Rights Act 1990

The Attorney-General accepts that this legislation has significant implications for the rights to freedom of expression and freedom of association. Although he believes the issue is ‘finely balanced’, he ultimately concludes that any limits on the respective rights are ‘demonstrably justified in a free and democratic society’ as required by section 5 of the Bill of Rights. We do not agree.

Section 5 of the Bill of Rights has been held to demand that: any limit on protected rights actually advances a legitimate and pressing objective; that it goes no further than is reasonably necessary to meet that objective; and that it does not limit the right more than is justified by the social good that is advanced (it does not, in short, use a sledgehammer to crack a nut).

In this case, the Attorney-General identifies two objectives underlying the legislation: to enhance public confidence in the integrity of the electoral system; and to enhance the maintenance of the proportionality of political party representation in Parliament as determined by electors.

We accept that the first of these is a legitimate and important objective. However, for all the reasons explored above, we cannot accept that this legislation is justified in Bill of Rights terms. To repeat, political defections are not a major problem in New Zealand, there are effective political sanctions where they occur, and “Electoral Integrity” legislation, in any event, creates more problems than it solves. For these reasons, the net effect may well be a detriment to, rather than an enhancement of, public confidence in the integrity of the electoral system. And to the extent that this objective is advanced, it is an archetypal example of a sledgehammer being used to crack a nut.

With respect to the second objective – maintenance of the proportionality of political party representation – we accept that this is an important objective and we accept, too, that it is advanced by this legislation. But it is important to note that, under our current electoral system, the proportionality of political party representation is treated as a relative rather than an absolute good. Distortion of proportionality already occurs in that only parties that surmount the representation threshold gain seats in Parliament, while the existence of “overhang” seats also fails to accurately reflect the overall spread of party votes. Following an election, proportionality may then be affected where a constituency MP resigns or dies and a by-election is held. A concrete example of this occurred in 2015, when Winston Peters’ victory in the Northland by-election altered the overall make-up of Parliament as decided by the voters.

Consequently, even under MMP, party proportionality is not invariably the most important electoral principle. Furthermore, the Bill of Rights requires that party proportionality must be balanced against other principles, especially MPs’ freedom of expression, conscience and association. Overall, we believe the importance of protecting these representative freedoms outweighs the objective of concretising political party representation in the House.  

In our view, the correct balance is best represented by the status quo.

 

Comments (10)

by Rich on March 16, 2018
Rich

What would happen, in theory, if the day before this passed, four NZF MPs announced they were forming the New Zealand Second party and would vote with National?

Would the (majorityless) PM be able to dissolve parliament and call an election, or would National be able to form a government with no election and 'rule' until 2020?

 

by Andrew Geddis on March 16, 2018
Andrew Geddis

The latter.

by Dennis Frank on March 19, 2018
Dennis Frank

Impressive, such a consensus of lawyers & academics, and I see no obvious flaw in their reasoning, but it's worth considering how an informed voter might frame the competing principles.

Such a person would readily acknowledge the right of an elected representative to use their freedom of expression to adopt a moral stance on an issue due to an imperative feeling emanating from their conscience.  However, they are also unlikely to discount the moral constraint imposed on their reps by a traditional convention of democracy:  an MP is elected to represent their constituency.  Political stands taken and promises made during an election effectively form a social contract between voters and representatives.  Voters are therefore likely to view any breach of this contract as unacceptable behaviour.  Immoral, even.

Winston may not have framed his legislation on this basis, but I'm suggesting his bill does actually cater to a substantial body of public opinion.  From the perspective of human nature, the right to change one's mind is a natural right which must be paramount.  However human groups have been imposing rules that limit political behaviour for millennia.  Isn't breach of contract illegal in other social contexts?  We need only hazard a guess as to the percentage of the electorate that tacitly recognises the equivalence in the waka-jumping bill to see that we cannot marginalise them.

Better to propose legislation that reconciles both views in a balanced way.  For instance, allow an MP to publicly disagree with his/her party during the term, but constrain them to vote in accord with their electoral contract until their current term ends.  I anticipate lawyers claiming there's no such thing as an electoral contract.  Even if not in law, it still tacitly operates in the minds of voters as it has done for the past couple of centuries.

 

by Charlie on March 19, 2018
Charlie

Excellent post! Thanks

So....it's Winston vesus the rest of the world then?  ;-)

 

 

by Ross on March 19, 2018
Ross

The argument that political degections are rare isnt a convincing argument. It's akin to going to a restaurant, complaining about the quality of the food and then complaining about the small quantity of food! If defections are rare, then the new law will be used rarely. That seems to be a positive.

by Ross on March 19, 2018
Ross

Charlie

If Winston is the only MP in support of this bill, it will be easily defeated and that will be the end of the matter!

by Iain Butler on March 19, 2018
Iain Butler

It's easy enough to see why Winston wants this legislation, but why is Labour supporting it? (Beyond the obviousl conclusion that they did so to become government).

Winston has been hot on "electoral integrity" since half his caucus opted to stay on as part of the colation government in 1998, meaning he failed to bring down the Government.

This legislation isn't being enacted to ensure rogue MPs can be kept from forming New Zealand Second, and flipping the government; it's being enacted so Winston can threaten to pull his entire party out of government if and when it suits, knowing he actually can pull his entire party out of government this time.

by Ross on March 19, 2018
Ross

The New Zealand public repeatedly has shown its lack of tolerance for political defections

If political defections are disliked by voters, then shouldn't action be taken to deter them? Could this Bill deter those wanting to go rogue?

The occasional example of an MP remaining on a parliamentary salary for the remainder of the electoral cycle may be undesirable, but it is a small price to pay to avoid the negative effects created by “Electoral Integrity” legislation.

Well, I'd agree if an MP's salary was the only price to pay. The trouble is that a rogue MP could help to prop up a tenuous Government. Alamein Kopu supported a National Government that was, from memory, finding support MPs in short supply. Was it acceptable that she was able to leave a fairly left wing party to support a Government that was anything but left wing?

by Charlie on March 20, 2018
Charlie

Ross:

We know the Greens are against the waka jumping legislation. I predict there will ructions within the Greens if they swallow this particular dead rat.

Labour? Just how desperate was Jacinda to be PM? What has she signed up for in that 30 page secret agreement with Winston? Is this Labour Party policy? (not that I recall)

 

So it's all about Winston.

The writing is on the wall: Winston must know this is his last dance and he's determined to hold NZF together until the end of his term, whereupon his one-man-band party will most likely disintegrate. Meanwhile Ron Marks has been passed over for deputy leader on a whim, so we can bet there is some unhappiness in the ranks. Any NZF MP wishing to remain an MP after the next election must do a deal with one of the major parties,  and that's what this legislation is all about.

 

by Ross on March 21, 2018
Ross

I take it that the best legal minds reside south of the Bombay Hills. Only one academic, a lecturer (great work they do, too) from Auckland signed the submission. Were any others from Auckland invited to sign? Are legal experts in Otago so superior to their northern colleagues? It's bad enough that the Blues stand in the shadow cast by the Highlanders but now this!

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