Malone on Sky City deal

July 28th, 2013 at 9:00 am by David Farrar

Dr Ryan Malone is a former Cabinet Officer staffer and a public law commentator. He writes in the Dom Post on the Sky City deal:

Can the SkyCity agreement, and the resulting legislation, be considered a breach of our unwritten constitution? The argument of constitutional impropriety rests on three pillars. None are very persuasive.

The first is that the legislation will benefit just one person, in this case SkyCity. This, it is argued, is offensive to the rule of law because legislation should be of general application to everyone.

This is certainly true of criminal laws passed by Parliament. Here we are all equal before the law. Yet outside of this area, Parliament regularly makes laws that benefit a single individual or group. Private bills by their very definition change the law for the benefit of a particular person or company.

Similarly, local bills relate to specific regions. Parliament gave Wanganui District Council the power to ban gang patches in parts of the town. Not all local authorities were given this power – just Wanganui District Council.

Perhaps more importantly, government bills are commonly passed that benefit one individual or industry group to the exclusion of others. Thus, individual iwi receive compensation packages through statutes that implement Treaty of Waitangi settlements with the Crown.

So that is the first point dealt with.

The second argument as to why the deal is unconstitutional is that by amending the Gambling Act in exchange for building the convention centre, the Government is “selling” a dispensation from the Gambling Act. …

But what is clear is that parties in government always face difficult tradeoffs when making big policy decisions. In this case the National Government – still facing challenging economic conditions – considers that the pros of having a privately funded national convention centre outweigh the cons. Not everyone will agree with that assessment, and they will have the opportunity to express their views at the next election. But hard policy choices do not automatically equate with governments running roughshod over our constitution. …

It also changed the Overseas Investment Act regulations to ward off the Canadian Pension Board’s takeover bid for Auckland Airport. The fact that many people opposed those decisions did not make the resulting laws unconstitutional. They were simply political decisions taken by the government of the day. The Government’s deal with SkyCity is no different.

And the third point:

The third reason why the deal is supposedly unconstitutional is that it “binds” a future government. Under the terms of the agreement, SkyCity is entitled to compensation if key parts of it are overturned. But it is not unusual for governments to have their hands tied by earlier decisions of Cabinet or Parliament.

For example, the current Government must pay Tainui and Ngai Tahu additional settlement money because of relativity clauses inserted in legislation passed by Parliament in the 1990s. In any event, it will always remain open for a future Parliament to revoke the deal and specifically rule out compensation to SkyCity.

Our Parliament is free to enact laws that remove rights without compensation and has done so in the past. The Government’s agreement with SkyCity is not contrary to New Zealand’s constitutional system. Fundamentally it is a political issue, not a legal one.

And one announced prior to the last election.

For a different view, there is this opinion from Stephen Franks.

Malone on MMP

September 12th, 2011 at 12:00 pm by David Farrar

Ryan Malone blogs on the MMP referendum:

Is the MMP referendum shaping up to be a big fat non-event?

Electoral reform was a big deal back in the early 90s when the two referenda were held. The protagonists argued their case in the media and waged extensive advertising campaigns. It was an old school fight, with threats and personal insults. Those were the days.

With the indicative 2011 referendum fast approaching, we’re yet to see anything remotely close to those lofty heights. Why?

One explanation is that people just don’t care. For some, this is no doubt true. They couldn’t give a toss one way or the other. But this is too simple (and boring) an explanation.

Part of the problem lies in the fact that the anti-MMP campaign just hasn’t turned up to the fight. As an objective observer with no connection to either camp, in my view the pro-MMP group (fronted by Sandra Grey) has made all the running in terms of media and advertising, while the anti-MMP group (fronted by Jordan Williams) is badly lagging. To give but one example, in the Wairarapa (where I live), the pro-MMP group has been running a weekly column in the local newspapers for some time. There is a prominent sign on State Highway 2 urging people to retain MMP. And from the anti-MMP group? Nothing as far as I can see. Not a peep.

There is a significant mismatch of resources, combined with a near total lack of coverage by the media.

The Vote for Change group is the only group I know of advocating for change. Those lined up to advocate for MMP are:

  1. Greens
  2. CTU
  3. NZDWU
  4. SFWU
  5. NZEI
  6. NZNO
  7. NDU
  8. Campaign for MMP
  9. NZ Aged Care Assn
  10. Labour
  11. RMTU
  12. MUNZ

No business group has lined up to register, and no political party that supports change. So the only voice for change is a one small incorporated society against eight unions, two political parties, one lobby group and the dedicated Campaign for MMP.

Now this wouldn’t be so much of an issue, if the media were doing full or half page stories on the five electoral systems, and the pros and cons of each. But they are not. And the broadcasters have done nothing much to date as far as I can see.

This referendum is probably the last one for 50+ years on the  basic electoral system. It will be a shame if it is a decision by default, rather than informed choice.

Why has National decided to keep to the sidelines in the referendum? Probably for the same reason, business groups have. They know that opponents of change will often play the man, not the ball, and call them undemocratic and power mad etc.

My hope is that coverage of the referendum will improve in the days ahead. But I suspect it is too late. After the RWC, most attention in the next five weeks will be on the election rather than the referendum. I think the debates and the media coverage should have started around January of this year.

MMP Symposium

August 26th, 2008 at 7:40 pm by David Farrar

I’m live blogging this from Victoria University where a symposium on MMP is being held in conjunction with the University of London.

An impressive collection of political scientists, lawyers and academics are in attendance, along with a couple of disreputable bloggers.

The symposium is tonight and tomorrow morning. The first session tonight is about the effect of MMP on the parliamentary process, on political parties and on the Executive.

Dr Ryan Malone from the Law Commission is first up, talking on the effect of MMP on the parliamentary process. He has pointed out how MMP makes opposition parties compete harder for media coverage, as there is no longer just one Opposition.

A lot of focus on how a Government has to get the numbers for every Bill now, and also due to agreements with parties may have to support some bills unwillingly – at least to select committee stage.

Another major change has been that the Government no longer has a majority on select committees and doesn’t chas as many of them. This gives more power to Parliament.

Related to this, is that the Opposition and minor parties can also force through hostile amendments during the Committee of the Whole stage.

This has all led to slow down the legislative process. From 1987 to 1996 an average of 160 government bills a year were passed. From 1997 to 2006, it was only 107 government bills a year. For those who want less laws, that is a good thing!

Associate Professor Andrew Geddis is now talking on how MMP has changed the legal status of political parties. Somewhat surprisingly, he is arguing that in fact the status of political parties under the law has not changed greatly due to MMP. There are more regulations for parties, but they remain essentially private bodies.

The old Electoral Act had minimal regulation of parties – just what they could display on election day, and that they could make submissions on boundaries. All the focus was on candidates.

Peters v Collinge established that political parties were largely private bodies, and that their rules were not generally open to challenge – only whether or not they followed them.

Payne v New Zealand National Party this year reinforced that approach, so long as they met the minimal requirements in the Electoral Act 1993 to have some provisions for members to be involved in selections.

Geddis looks at whether the greater regulation of parties (registration, spending caps, donor rules) is due to MMP, or whether the introduction of MMP was just convenient to do so, and these may have eventually happened under FPP. The UK did so in 2000, despite remaining under FPP.

Geddis concludes it was more a growing awareness of the importance of political parties in elections that led to their increased regulation, rather than MMP per se. I had never considered it quite like that before,but upon reflection I think he is right.

Finally in this session Professor Jonathan Boston spoke on how has Executive Government functioned under MMP. He focuses on agree to disagree provisions in coalition agreements, and that these worked fairly well up until 2005.

He describes the 2005 arrangements as novel and unorthodox with a coalition agreement, two supply and confidence agreements and a co-operation agreement. Also how two party leaders would be Ministers but not formally part of the Coalition Government, and how MPs not in the Executive would be Spokespersons for the Government on some issues.

He looks at the principle of unanimity within the Executive or at least the Cabinet (collective responsibility) and concludes it has under MMP been progressively modified and significantly weakened.