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Graeme Hunt

A step towards constitutional reform

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No one pretends that if the mixed-member proportional voting system (MMP) is thrown out by public referendum New Zealand’s constitutional woes will be over.

The restoration of a majoritarian voting system –– first past the post (FPP), supplementary member or preferential voting –– would be an important first step toward electoral democracy. The party that won the general election on the night would, all things going well, lead the government that would rule for the following three years.

That is something New Zealanders seem to want rather than a Parliament whose life depends on the whims of list MPs, all be there talent among some of the “listers”.

Good democracy should be simple: voting should be easy, outcomes should be transparent and turnout should be high. MMP fails on all counts but there are concerns in some quarters, even among those who oppose MMP, that a return to the old days of a powerful executive with a legislative iron grip on a single House of Representatives is not the way to go.

The message is clear: get the voting system right first and then deal with the other constitutional challenges.

I had the good fortune of studying British constitutional changes when I was a Chevening–David Low fellow at the University of Oxford in 2000. This followed closely my 1998 study of New Zealand electoral changes — what I would term “missed opportunities”.

When National embarked on constitutional change in the early 1990s, the electoral system alone came in for special attention. Prime Minister Jim Bolger talked in passing about the reintroduction of an upper house to replace the appointed Legislative Council the Holland National government had abolished in 1950. But Bolger’s interest in a senate was no more influential than National MP Ronald Algie’s 1952 proposal to replace the Legislative Council with an appointed senate.

Sid Holland, who could be crude when it came to dealing with academics (Algie was a former law professor), remarked that he would take Algie’s report home and hang it in the outhouse for use for toilet paper. And so the debate ended, although the Constitutional Society, a cross-party group that included such people as brewer Sir Henry Kelliher, limped on with a senate in mind until the mid-1960s.

The real “missed opportunity” was not the replacement of the ineffectual Legislative Council with an ineffectual senate in the 1950s but the failure to act on constitutional change in 1914 and 1923–24.

The Legislative Council, a colonial House of Lords with members appointed initially for life and later for seven years, had outlived its usefulness well before 1914. It was the refuge for ga-ga ex-MPs and political hacks and served much the same function as many appointments to government boards and agencies do today; it offered cronies of the government of the day a reward for loyalty rather than an opportunity to bring about legislative or social change or to serve their fellow beings.

Contrary to its name, the Legislative Council hardly ever initiated legislation and it gave up fighting the government of the day after the 1890s. As a house of review, it was constitutionally barred from interfering with money bills and became, especially near the end of its life, little more than a rubber stamp for the House of Representatives. Yet in 1914 the Massey-led government, which did not have a clear majority in the House of Representatives, proposed creating a 40-member Legislative Council elected by the “Tasmanian system” (single transferable vote or STV). There was also provision for three Maori members to be appointed. The legislation was passed but not implemented because of the war and it died a quiet death.

In 1923 the Massey government responded to pressure from Labour and introduced a bill providing for compulsory registration and preferential voting for the House of Representatives.

Compulsory registration was separated from the bill and introduced in 1924 and a new hybrid bill combining elements of proportional representation and preferential voting was introduced. It provided for preferential voting in single-member rural electorates and STV in multi-member electorates in Auckland, Wellington, Christchurch and Dunedin. Not surprisingly, the bill pleased no one and did not proceed. Attempts by Sir Joseph Ward’s United Party to introduce preferential voting for the House of Representatives (following Australia’s lead in 1918) came to nothing.

It took more than 60 years before the electoral system was changed –– and not for the better in my view.

Had the upper house been elected by STV in 1914, the “balance” in the electoral system people demanded then and probably want now, and the necessary check on the powers of the executive, would have been in place. Preferential voting for the lower house would have been the icing on the electoral cake.

Sadly, although there might be a good case in New Zealand for a house of review, it is unlikely to come about. The senate was a dead duck when Bolger proposed it in the 1990s and it remains a dead duck today on the basis that people want fewer rather than more politicians.

The only way it could be sold would be if the membership of the House of Representatives were reduced to, say, 99 MPs –– something overwhelmingly endorsed by Margaret Robertson’s citizens-initiated referendum in 1999.

I suspect most Kiwis, if they had to, could live with a small upper house elected by STV and a lower house elected by FPP, provided the upper house had standing. The Legislative Council did not have standing but the Australian Senate, which is elected by STV, does, as does the Australian House of Representatives, which is elected by preferential voting.

In New Zealand, electoral law contains many fishhooks, not least the Maori seats, which should have gone with MMP (that’s what the Royal Commission on the Electoral System recommended). It would take a brave government to remove them. An upper house, on the other hand, could have provided an outlet for minorities, including Maori, while letting the party that won on election night rule uninterrupted.

For now the issue is not about wider constitutional change, however necessary it might seem, but about having an informed debate and vote on the electoral system. That is what I want.