Electoral Law discussion

September 2nd, 2010 at 4:15 pm by David Farrar

The four speakers are Simon Power, Charles Chauvel, Caroline Morris and Philip Joseph. I missed some of the written constitution session as I had to go out and buy a new power cord for my laptop.

Power is speaking first. Basically just going over work to date – MMP referendum, new Electoral Commission, EFA repeal. Highlighting that the crucial thing with its replacement has been a transparent inclusive process.

Power has effectively said that any further changes to the finance law will require identification of some clear harm to be fixed, that is agreed across the political spectrum. This means that not everyone will be happy, but that there will be nothing that any group finds offensive.

Next up was Chauvel. Mainly focusing on why MMP is good.

Joseph argued that the Maori seats should not be entrenched and in favour of a longer and fixed parliamentary term. I agree with him on all points. He only favors a fixed term if it is longer.

However Joseph is pessimistic on the chances of reform.

Finally Morris is up. Focusing on conduct of MPs. Says discipline of MPs should not be left to party leaders.

Constitutional repugnance

May 25th, 2010 at 11:27 am by David Farrar

Constitutional law expert, Professor Philip Joseph slams the process around ECan:

A top New Zealand public law academic wants the Government to abolish legislation that sacked Environment Canterbury (ECan) councillors.

Canterbury University law professor Philip Joseph says the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act, which was passed under urgency last month, breaches several principles of law, is “constitutionally repugnant”, contains “elements of subterfuge” and is a “constitutional affront”.

The act should be repealed and the 14 sacked regional councillors reinstated, he said. …

Joseph told The Press the act was “simply unacceptable”.

“What I’m concerned about is the idea of proper process, and this was a departure,” he said.

“This didn’t go through any select committee consideration, no submissions and no consultation. Why should urgency be taken on a matter such as this?”

While I support the decision to sack the Council, I agree with the criticism around process, and the lack of select committee hearings. Labour sacked the Rodney District Council using the same process (urgency with no select committee) but the ECan situation is more complicated with the powers ECan has also changing.

Parliament and the Courts

September 11th, 2009 at 2:00 pm by David Farrar

The Australasian Study of Parliament Group had a seminar in the Beehive on Wednesday on the issue of Parliament and the Courts.

The first speaker was Professor Philip Joseph, who is widely considered the leading constitutional scholar in New Zealand.

Professor Joseph discussed the issue of parliamentary sovereignty and whether or not it exists or is absolute.  There were references to musings from Lord Cooke and Chief Justice Elias that such sovereignty is not absolute.

This does not mean that the judiciary is sovereign either. In fact the theme pushed was neither institution was sovereign, and there is mutual respect for the roles of each, with boundaries between them.

There was a suggestion you could call this co-sovereignty, looking at it being the Crown through her Parliament and the Crown through her Courts being co-sovereign, but sovereignty tends not to be shared (the Roman Republic did effectively share it through having two Consuls but that didn’t work too well eventually).

The example by CJ Elias was whether the judiciary would uphold a law that (for example) said all blue eyed babies must be killed.  Of course that would never be passed (and if it was, the Governor-General might not assent to it) so it is an academic argument.

Professor Joseph said that the rule of law does exist outside of legislation and that it pre-dates the concept of parliament sovereignty by many hundreds of years.

An example would be in countries that have had a coup. Often the judiciary will adopt or refer to the doctrine of necessity to maintain the rule of law – even without legislative backing.

The second speaker was Labour MP Charles Chauvel, in his role as Chairman of the Privileges Committee. He had some interesting historical facts such as how Magistrates were not seen as Independent Judges until just a few decades ago, and how the Minister of Justice used to actually be accountable in the House for their decisions.

His main theme was respecting the boundaries between Parliament and the Judiciary, and how the Privileges Committee decision to recommend limitations on an MPs ability to breach a court suppression order, helps respect those boundaries – especially as it was initiated by Parliament voluntarily.

He took a swipe at both Justice Minister Simon Power and his colleague Trevor Mallard for their recent comments, plus also at Attorney-General Chris Finlayson for not publicly defending the Judges concerned. Power criticised CJ Elias’ call for prisoners to be released early and Mallard criticised the lack of jail in the Moses exorcism manslaughter case, saying they would have got jail time if they were not Maori.

Chauvel said he thought both Power’s and Mallard’s comments pushed against the boundary of mutual respect, or comity.

In fact he revealed the Opposition was concerned enough about Mallard’s comments they their Justice Spokesperson wrote officially to the Chief Justice disassociating themselves from the comments, and saying he was speaking as a local MP only and not on behalf of Labour. The letter and response from the CJ was shown briefly on the screen.

The seminar was well attended and ably chaired by Colin James, with extra chairs having to be found for everyone. Definitely only a topic for constitutional geeks, but it is a fascinating area for New Zealand as one of the few countries with no written constitution.

Maori Seats debate at Te Papa

February 3rd, 2009 at 6:42 pm by David Farrar

Florence from Te Papa has commented on the constitutional issues thread:

Since the Maori seats are part of the listed constitutional issues, I thought you might be interested by this event we’re organising at Te Papa: on Thursday 5 February, 6.30-8pm, we’re having a debate between Professor Philip Joseph and Derek Fox about the future of Maori seats in Parliament.

This will be webcast live from Te Papa’s website, so anybody can watch it. We’ll also allow people to ask their questions through our blog, by email or via a live chat.

So join us on Thursday, we really want to hear from anybody who’s interested in this subject.

That’s great it is online, and allows online questions and feedback. Plus you can attend in person for free. I plan to listen online.

MMP Symposium Part II

August 27th, 2008 at 8:24 am by David Farrar

No Right Turn has blogged all the speeches from last night, including links to some of the papers for those interested in electoral issues.

Raymond Miller was especially interesting, on how by 2011 36% of voters will have known nothing but MMP. His paper had lots of polling data about attitudes to MMP broken down by various demographics.

Constitutional Law expert Professor Philip Joseph is now speaking on future constitutional challenges. He is outling five changes under MMP.

  1. Indirect election of Governments. The public used to effectively elect the Government, and it would be known within a couple of hours of election night. Now the effect is to elect a Parliament and Parliament spends a few weeks negotiating a Government. He emphaised this means the public are often surprised by the Government that emerges such as Nat/NZF in 1996 and in 2005 Labour campaigned with the Greens but ended up appointing Peters and Dunne as Ministers – something no-one would have expected before the election.
  2. Government formation. Only in 1999 was the shape of the Government known on the night as Labour and Alliance got 63 seats on election night and had said they would go into coalition together. Ironically they shrank to 59 seats when the Greens later qualified for representation.
  3. Minority coalition Government. Four of the five coalition Governments have been minority Governments. Only National-NZF was a majority Government.
  4. Collective responsibility. MMP has shown that collective responsibility is not a constitutional convention but merely a rule of pragmatic politics.
  5. Government and Opposition reconfigured. These labels are more flexible now.

Joseph then touched on the issue of the Maori seats. He asserted that retaining the seats will inflate the parliamentary representation of Maori beyond their relative population base and will create a permament overhang that will skew MMP proportionality.

Professor Joseph pointed out there are currently 22 MPs of Maori descent, representing 19% of Parliament – well above the 14% of the general population that Maori comprise. Eliminating the Maori seats would have Maori make up 12.4% of Parliament, only 1.4% below their population share and hethinks the 2008 election will see even that small gap disappear – without relying on the Maori seats.

He also touched on the possibility of overhang in the Maori seats leading to a situation where National might get 50.1% of the vote, but be unable to form a Government due to the increased size of Parliament. This would create considerable resentment and a backlash.

Another challenge Joseph alluded to is that one day there will not be enough list seats to ensure proportionality. So long as the NI populations grows faster than the SI, then every five years the number of electorate seats will increase, and the number of list seats diminish. Already under MMP the number of list seats has fallen from 55 to 50.

Three solutions are identified:

  1. Increase the size of the House to greater than 120
  2. Abolish the Maori seats, and have seven more list seats
  3. Reduce the number of electorates, which will increase the size of the largest electorates considerably

Finally Joseph looks at whether MMP will survive in light of National’s referendum pledge. He thinks it will as he doubts National will get the numbers in Parliament, even if they form the Government, to have the referenda.

Nigel Roberts is now talking on the alternatives to MMP. He is doing what I in fact did on my blog some weeks ago, and look at what would have been the results of the four MMP elections if done under MMP.

Roberts identified five problems with MMP as he sees it:

  1. One seat threshold
  2. Treating minor parties and independents differently
  3. Overhang
  4. Closed Lists
  5. Backdoor MPs

He pointed out you can fix these without a referendum – only need for changing the system.

Says one seat threshold is unfair. Christian Coalition got no seats on 4.3% in 1996 yet NZ First got five seats on 4.3% in 1999.

With issue 5, could do as in Wales and people can be an electorate candidate or list candidate – but not both.

The Maori seats

May 30th, 2008 at 11:34 am by David Farrar

The NZ Herald reports on a paper by Canterbury University law professor Philip Joseph (a leading constitutional expert) on the Maori seats, calling for them to be abolished:

Professor Joseph said putting aside the seven Maori seats, the 15 other Maori representatives in Parliament put it a little under 2 per cent short of reflecting the 14 per cent national population.

However, with the Maori seats the current parliamentary representation equated to 22 per cent.

In response Matt McCarten says:

Political commentator Matt McCarten said Professor Joseph’s argument was “ignorantly racist” because it seemed to suggest there was a strict quota of Maori MPs acceptable in Parliament.

“You didn’t see a report when rich, white men were over-represented in Parliament. Now, it’s suddenly become a concern because Maori might soon wield real influence.”

Matt misses or avoids the point though. If there were no dedicated race based seats, then “over-representation” would not be an issue. I would not be at all concerned if New Zealanders elected a Parliament that had a particular demographic over-represented. Absolutely there should be no maximum quota of acceptability.

But the issue is that the rationale for having dedicated race based seats is justifiably called into question when that demographic is over-represented, not under-represented, in Parliament.

In a way it is similiar to the immigration issue. If there are no country based quotas in immigration (which I prefer) then I don’t care at all about the nationality or origin of our immigrants. But if there is a country based quota, it is legitimate to debate whether that quota is necessary or desirable.

There are reasons one can argue in favour of the Maori seats, beyond Maori being under-represented in Parliament (which has not been true for some time). Likewise there are arguments against the Maori seats (and my fear is the longer we retain them, the more we develop a Fiji type constitution). However taking the seats away, without fairly broad agreement from Maoridom is not necessarily a constructive thing to do. There are no easy answers, but it is an issue which won’t go away.

I think the best solution is that of the Royal Commission on the Electoral System which proposed they be abolished, but that the special status of Maori as tangata whenua be recognised by having no threshold (so getting around 0.7% of the vote should ensure representation) for Maori political parties. This would also solve the issue of the Maori seats causing overhang in Parliament which can distort the proportional result you are meant to have under MMP. This could be a big factor in 2008.

Before people react kneejerk, can I suggest people read the excellent Chapter 3 of the Royal Commission report which goes into the pros and cons and history of the seats.

One advantage of abolishing the Maori seats but having no threshold for Maori political parties is you could get more diverse Maori representation in Parliament. The main parties would still I am sure have Maori MPs, but you might have three or four different Maori parties all gaining one or two MPs. There might be a radical activist party for the Hone Harawiras. A urban Maori party for the John Tamiheres. A Iwi rights party for Ngai Tahu and supporters. Having no threshold for Maori Parties would encourage more diverse representation and in my opinion be a more effective way of guaranteeing Maori representation in Parliament without the negatives of having separate rolls and separate seats.