Let's keep MMP & make it even better.

Submission of the Campaign for MMP to the Electoral Legislation Committee on the Electoral Referendum Bill

(PDF version here, 223 kb)

Dr Sandra Grey on behalf of the Campaign for MMP

Campaign for MMP
PO Box 12-191,
Thorndon,
Wellington 6144

Tel: (04) 473-7274

Email: campaign@campaignformmp.org.nz
Web: www.campaignformmp.org.nz

9 June 2010

Campaign for MMP

The Campaign for MMP was established in February 2010 to mobilise public support for the MMP electoral system leading up to the government’s planned 2011 referendum. The Campaign for MMP brings together people involved in the successful 1993 pro-MMP campaign, when New Zealanders voted in the MMP system; people who recognise the democratic benefits of MMP for New Zealand; and, a range of people new to politics who have grown up appreciating the benefits of MMP. We recognise that young New Zealanders, who have grown up knowing MMP and who will live for longest under the electoral system chosen in the 2011 referendum, are the strongest supporters of MMP.

The Campaign for MMP has an organising group in Wellington; branches throughout the country; and, allied groups including Artists and Musicians for MMP and Women for MMP to represent the wide range of New Zealanders who care about having a fair electoral system.

Introductory statement

Overall the Campaign for MMP supports the Electoral Referendum Bill as (in all but one aspect) it provides a sound and independent process by which voters can make a series of decisions about New Zealand’s electoral system.

1.    We applaud the clear and simple approach on the proposed referendum voting paper for the indicative referendum. We recommend some changes in wording on the referendum voting paper and the provision of some additional information on electoral system options.

2.    We believe the timing for the referendum as set out in the Electoral Referendum Bill (and proposed follow-up processes) will ensure a well-informed decision by the New Zealand voting public with regard to the electoral system and as a result will lead to a legitimate outcome.

3.    We support the decision to include in the Electoral Referendum Bill the provision to review MMP if 50% or more of the votes cast in Part A of the referendum voting paper are in favour of keeping MMP. We believe the terms of reference for the independent review to be conducted by the Electoral Commission, as set out in the Bill, are sound.

4.    We argue there is a serious flaw in the Bill as currently drafted. The other efforts at providing a fair and independent referendum process will be undermined if there are no limits on campaign spending. We urge the Select Committee and Parliament to place a cap on advertising spending by campaign promoters in the 2011 referendum to ensure a level playing field for all points of view promoted in the referendum debate.

We will expand on each of these issues in turn.

1.    Clear and simple referendum voting paper

We applaud the clear and simple approach on the proposed referendum voting paper for the indicative referendum. We recommend some changes in wording on the referendum voting paper and the provision of some additional information on electoral system options.

1.1    It is essential that all referenda provide voters with clear choices and we believe the referendum voting paper contained in the Electoral Referendum Bill, by and large, does just this.

The two-step referendum voting paper was successfully used in 1992 when New Zealand moved from First-Past-the-Post to MMP. This two step process allows voters to make a clear choice in Part A on whether they want to keep MMP or make a change; and a clear choice for a preferred alternative system from Part B if they so choose.

1.2    We believe that Part A of the referendum voting paper would be clearer if voters were asked if they would like to ‘keep’ or ‘change’ the voting system, rather than the current wording which offers voters the choice to ‘retain’ MMP or ‘change’ to another voting system. Thus we propose the following wording in Part A of the referendum voting paper:
Should the current MMP voting system be retained?
I vote to keep the MMP voting system
I vote to change to another voting system

The reason we would use ‘keep’ rather than ‘retain’ is simply because that is the word most people would use in normal spoken conversation. ‘Retain’ is not a frequently used word and some voters may not be familiar with the word. It belongs to a more formal or official written style and in this situation, may therefore have an ‘it doesn't apply to us’ connotation (no matter how slight).

1.3    In the interests of ensuring an uncomplicated referendum voting paper, we do not believe that the first sentence found in Part B is necessary. Part B could simply read: ‘If there was a change to another voting system, which system would you choose?’

1.4    We support the proposed method of voting as set out in the Bill.

We believe that a simple tick in Part B, rather than a preferential numbering system is desirable for a number of reasons:
a.    Any complicated voting method in the referendum will lower participation in this process.
b.    There is less room for voter error in voting systems which use a simple tick. This results in fewer invalid voting papers than if for example voters were asked to number options in Part B of the referendum voting paper.
c.    Using ticks to indicate choices in Part B will also provide consistency between the two parts of the referendum voting paper – as Part A can only be completed using a tick.
d.    The current proposal is that the order of options in Part B of the referendum voting paper will be determined by the Chief Electoral Officer by lot, as is customary in New Zealand. This seems the most appropriate way of putting together the order for Part B of the referendum voting paper.

1.5    As has already been acknowledged in the Bill, it is crucial there be a thorough public information campaign in the lead up to the 2011 referendum. This public information campaign must be well funded and adequately resourced.

A public information campaign on the five voting systems must centre on principles underpinning each system and core democratic values. As the International Institute for Democracy and Electoral Assistance (2008:3) states ‘The quest for the most appropriate electoral system thus involves assessing the available choices against the chosen criteria (always with history, time and political realities in mind) in order to identify one or more options which will suit the needs of the country concerned.’

Core democratic values were articulated by the Royal Commission on the Electoral System 1986. Their ten criteria for judging voting systems were published as part of the information campaign in 1992 and 1993.

We agree with the Ministry of Justice (2010:4) that ‘The Royal Commission’s comprehensive analysis of different voting system options for New Zealand is still appropriate and relevant to New Zealand and therefore avoids the need to carry out a further lengthy and costly inquiry.’

1.6    There are difficulties in the public education campaign due to the lack of specification around some of the systems which form the options in Part B of the referendum voting paper.

For example, with regard the Supplementary Member voting system, as set out in Schedule 2, voters are informed that they would have either
a.    1 vote, for their preferred candidate in their electorate; or
b.    2 votes: a vote for a party and a vote for an electorate candidate

The public information campaign will need to clearly articulate the differences between these two mechanisms within the Supplementary Member option.

It is also problematic that voters are not being informed how many out of a total 120 seats would be allocated to electorate MPs and how many supplementary seats there would be if they chose to vote for the Supplementary Member voting system.

A number of countries have adopted Supplementary Member and there are a number of variations in the ratio of electorate seats to supplementary seats (Taiwan, 70:30, Senegal 54:46, Lithuania and Georgia 50:50). It is important to articulate the principled basis for the particular ratio chosen and/or provide the voter with the information to make an informed choice.

The smaller the number of supplementary seats the higher the proportion of the vote a party would have to win in order to be allocated one of those seats. So while advocates for the Supplementary Member voting system claim it provides an opportunity for small party representation, the results can vary significantly depending on the number of supplementary seats.

With regard the Single Transferable Vote system set out in Schedule 2 there is also a lack of detail about the exact mechanisms offered in this option. There are varied methods for reallocating preferences which affect election results.

The lack of specification with regard the options in Part B of the referendum voting paper makes it difficult to provide full information to members of the public on the options. How can the public make an informed choice about options that have not been clearly defined? We urge that the Bill specifies precisely what the different named systems actually mean (for instance, as mentioned above, how many votes there would be on a supplementary member voting paper and how many of the total of 120 seats would be supplementary and how many electorate).

2.    Timing of referendum processes

We believe the timing for the referendum as set out in the Electoral Referendum Bill (and proposed follow up processes) will ensure a well-informed decision by the New Zealand voting public with regard to the electoral system and as a result will lead to a legitimate outcome.

2.1    We urge the Select Committee and Parliament to retain the current time frame for the referendum process as this is a crucial constitutional issue that should not be rushed.

2.2     While the Referendum Bill does not set out timing for a second referendum process, it is clear that the current Government’s intention is to hold a second referendum with the 2014 election if necessary.

New Zealand’s experience with referenda held between election cycles shows the difficulties in getting voters to the polls. For example two referenda recently held outside normal election cycles were the 1992 Electoral System referendum and the 1995 referendum on fire-fighter numbers which had voter turnouts of 53.4% and 27% respectively. This was much lower than recent referendum held in conjunction with elections. The 1990 Referendum on the Term of Parliament and the 1993 Electoral System referendum both had voter turnouts of 85.2%.

The decision to hold the indicative referendum, and any future referendum, at the time of a general election will both ensure a high level of voter participation and reduce the cost to the taxpayer. We feel holding the referendum at the time of a general election is crucial for the legitimacy of any electoral system decision as it will to ensure the highest turnout possible.

3. Review of MMP if voters decide to keep this electoral system

We support the decision to include in the Electoral Referendum Bill the provision to review MMP if 50% or more of the votes cast in Part A of the referendum voting paper are in favour of keeping MMP.  We believe the terms of reference for the independent review to be conducted by the Electoral Commission, as set out in the Bill, are sound.

3.1    All electoral systems can be improved upon. We note that Germany made changes to their version of MMP. As such, we are supportive of the government’s decision to legislate an independent review of New Zealand’s current electoral system if 50% or more of the votes cast in Part A of the indicative referendum are in favour of keeping MMP.

3.2    We also feel that there should be a legislative commitment to an independent review of MMP if it is chosen in the second referendum in 2014.   

3.3    We believe that the process as set out in the Electoral Referendum Bill, which excludes a review of the number of MPs and the Maori seats, is the best approach. While the size of parliament and reserved seats are important issues, they should not be conflated with the type of electoral system used to choose our representatives. These issues should be part of a broader constitutional debate.

3.4    It is important that any review carried out by the Electoral Commission is given adequate resources and time. As set out on the Electoral Referendum Bill, there should be adequate time for both the Electoral Commission to gather evidence from experts and to call for public submissions on any changes that the public desires for MMP.

3.5    The review of MMP is an important feature of the current legislation.  The rationale for the review was discussed in the Regulatory Impact Statement.  We believe the triggering of the review, its scope and independence should be given sufficient prominence in the public information programme in lead up to the 2011 Referendum.

3.6    We urge the Select Committee and parliament to ensure that the independence of this review is maintained, as this is crucial for the legitimacy of our voting system. And to ensure any such review is done in a thorough fashion and not by simple plebiscite processes.

In setting out constitutional change, the processes must be decided by bodies which maintain both the appearance and reality of being independent and non-partisan.

There is precedence for ‘independence’ of the body carrying out electoral system reviews in both international practice and in how electoral changes has been dealt with in New Zealand in the past.  Internationally bodies responsible for election management frequently have no political party representation (Report of the MMP Review Committee, 2001: 57).  In particular if we turn to the New Zealand Electoral Commission and the setting of electoral boundaries we see the issue of ‘independence’ is seen as crucial.  In the 2001 ‘Inquiry into the Review of MMP’ report it is noted that:

The overriding principles embodied in the first Commission were independence, balanced membership, equality of representation, regular revisions, and the exclusion of political matters from the statutory criteria the Commission must consider when determining electoral boundaries (p.53).  

A clear predominance of non-political members was felt to be essential for there to be public confidence in the independence of the Commission (p.54).

4. Spending Cap

We urge the Select Committee and Parliament to place a cap on advertising spending by campaign promoters in the 2011 referendum to ensure a level playing field for all points of view promoted in the referendum debate.

4.1    The one serious problem with the Electoral Referendum Bill is the failure to include spending caps on referendum-related advertising. Political candidates and parties cannot just spend as much as they like on election campaigns and the same principle should guide the MMP referendum rules.

Since 1895, governments have imposed spending caps to ensure that the wealthiest candidates cannot just spend their way to power. It’s the same with all citizen-initiated referenda too. For example, all groups and individuals involved on either side of New Zealand’s recent ‘Section 59’ and ‘law and order’ referenda had their spending limited by law. We can see no good reason why the government has made an exception for the MMP referendum, with the draft legislation containing no spending caps. This is inconsistent and risks exactly the undemocratic influences of big spending lobbies that New Zealand electoral law has been designed to minimise for over a 100 years. It is essential that there is a ‘level playing field’.

Some might argue that having a cap could limit debate or freedom of speech. However, a referendum spending cap will simply bring the MMP referendum into consistency with the spending caps already applying to all political candidates and parties and all other recent referendum.  We must not have the absurd situation where political parties campaigning to be government have caps on their spending, but groups lobbying over a referendum (also being held on election day) could outspend their opponents with undeclared millions of dollars.

We note that few New Zealanders would have been unaware of the debate over the ‘smacking’ referendum, in which campaigners were subject to a $50,000 cap on spending. We do not consider that spending caps impede debate. Spending caps do not impose limits on freedom of speech they impose limits on the freedom to purchase unlimited amounts of advertising.

4.2    The Citizens Initiated Referendum legislation provides guidance on spending caps:

From the Citizens Initiated Referenda Act 1993 (p. 34)

42      Limits on expenditure
Every person commits an offence and is liable on summary conviction to a fine not exceeding $20,000 who, either alone or in combination with others,—
o    (a) Knowingly spends, on advertisements published or broadcast in relation to an indicative referendum petition, more than $50,000:
o    (b) Knowingly spends, on advertisements promoting one of the answers to the precise question to be put to voters in an indicative referendum (whether those advertisements are published or broadcast or both), more than $50,000.
Section 42 was amended, from 6 December 1995, by section 13 Citizens Initiated Referenda Amendment Act 1995 (1995 No 62) by substituting the expression “$20,000” for the expression “$100,000”. Citizens Initiated Referenda Act 1993 No 101 (as at 01 March 2009), Public Act

We recognise that $50,000 is too low, in part this is because the CIR cap was set in 1993. We believe that indexing the cap from the 1993 figures to 2010 dollars would be a reasonable way in which to set the spending cap, with an upper limit of $350,000 if the cap was to be higher than the indexed amount.

4.3    While we acknowledge that there are difficulties in administering a cap on advertising spending as seen in recent referenda (such as the referendum on ’smacking’), this does not lessen the need for parliament to send a clear signal about New Zealand’s attitudes to those with large amounts of money unduly influencing democratic processes. We also believe that a cap set at a reasonable level would not be as difficult for electoral agencies to administer.

4.4    If there is no spending cap placed on the 2011 referendum advertising, we believe that the provisions as they stand in the Electoral Referendum Bill must be maintained as a minimum.

It is essential for democracy in New Zealand that the public is clearly informed about who is involved in advertising both for and against MMP.

While Campaign for MMP will be mobilising support for the retention of proportional representation in New Zealand, we are concerned more broadly with democracy and democratic rights and as such are prepared to have our own activities curtailed in the interests of ensuring a fair and open public debate on this crucial issue.

We thank the Select Committee for the opportunity to submit on this crucial piece of legislation.

The Campaign for MMP would like to appear before the Select Committee.

References

IDEA (2008) Electoral System Design: The New International Handbook, IDEA, Stockholm.

Inquiry into the Review of MMP (2001) ‘Report of the MMP Review Committee’, August 2001, NZ House of Representatives.

Ministry of Justice (2010) Regulatory Impact Statement (RIS) Electoral Referendum Bill, http://www.justice.govt.nz/policy-and-consultation/regulatoryimpactstate... last modified 25 March 2010

Royal Commission on the Electoral System (1986) Report of the Royal Commission on the Electoral System http://www.elections.org.nz/voting/mmp/royal-commission-report-1986.html

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