24 September 2008

NineToNoon: Peters and the Privileges Committee / MMP and Electoral Reform

> NineToNoon: "Law with Dean Knight" Peters and the Privilege Committee There a couple of things in the report of the Privileges Committee which, from a legal or constitutional perspective, are interesting. Others have commented on the political issues, my interest is the constitutional issues.

The Committee's findings We know the Committee ruled that the Glenn donation was a "gift" and was required to be disclosed as part of his return under the Register of Pecuniary Interests (Copeland's complaint). But they ruled that the payment was not the discharge of a debt because none existed (Hide's complaint). The Committee ruled that Peters breached the standing orders and was in contempt for ("knowingly provide false or misleading information in a return of pecuniary interests") (SO 400(h)).

I don't quibble with the Committee preferring Glenn's evidence over Peters and finding that Peters was aware of Glenn's intention to make a donation. Findings based on circumstantial evidence and credibility are the standard stuff for tribunals. I wasn't surprised by that factual finding but also wasn't surprised by the dissent.

The Committee's independence There's been some concerns expressed about the lack of independence and natural justice, for example, from the Prime Minister and Peters. I think those concerns have some legs – but we shouldn't take them too far.

Yes, the members have some interest in the outcome. And Committee doesn't live up to the same standards of process and independence as we expect of juries and other adjudicative tribunals. But it's the nature of the beast. "Natural justice" at law recognises the different contexts in which tribunals operate within. Necessity requires people who have some interest in the outcome participate in the inquiry – otherwise it's not a judgement by one's peers. It's difficult to think of a different, more independent mechanism for these hearings; I'm not sure that abandoning the political expression of standards by one's peers in favour of a neutral, "objective", external process is desirable.

The Committee's "honest attempt" test But I have some sympathy for the minority concerns about the Committee's treatment of the knowledge standard required.

The majority found that Peters did not make an “honest attempt” to ascertain whether any donations had been received before making his return – and this is the important thing – "despite his knowledge of his arrangement with Mr Henry and the likelihood of donations being received towards his costs".

The Labour-NZF minority expressed some concern about the retrospective application of the "honest attempt" test. (Strictly speaking, it's not a retrospective law-change but has a similar retrospective effect, as is the case when laws are interpreted differently to what everyone previously understood, like with the pledge card. It's normally undesirable because it offends the Rule of Law if people aren't able to plan their lives in the light of the legal consequences that follow.)

My concern, though, is that the Committee seems to have adopted an interpretation inconsistent with the meaning of "knowingly" as we ordinarily understand it at law, particularly criminal law where it operates as the mens rea or culpability threshold for liability. Yes, the Committee was entitled to conclude that Peters had knowledge of Glenn's intention to make a donation. However, they didn't rule he actually knew about the donation itself or that his return was actually false. They basically said he should have taken steps to find out. He was sort of "wilfully blind" or "reckless" to the accuracy of his return. But, in my view, that's not "knowingly" making a false statement.

Peters' position now that he's been censured Peters has been censured for contempt of Parliament and has also now been found to have breached the Cabinet Manual provisions governing the conduct of ministers – because the Manual reiterates the need to comply with the Register of Pecuniary Interests. So people are continuing to call for his resignation or dismissal.

I've previously discussed the constitutional position about the tenure of ministers we. While some might argue about the nature of the convention that applies, I think the best statement of the constitutional position is this: "A Minister must resign when he or she loses the confidence of the Cabinet as expressed by the Prime Minister." Or similarly, they will be dismissed when they lose that confidence.

What that says is – as a matter of constitutional law – there's no list of behaviour that automatically triggers resignation. The considerations are political and pragmatic. And that might mean that different standards apply to different ministers too. That said, it does look like – politically – Peters is toast! People seem to be bored with his obfuscation. The Court of Public Opinion may be the more powerful adjudicative tribunal.

MMP and electoral reform Questions about our electoral system have recently been under the spot-light:

  • The Nat's have promised a referendum on MMP if elected.
  • The NZHerald seems to have been questioning the merits of MMP.
  • The Peter's saga, more generally, has lead to some people querying the effect of coalition politics.
  • And we're about to have our 5th election under MMP – one that looks likely to present new, complicated outcomes and arrangements (eg, Māori party overhang, possibility that highest polling political party might not garner a coalition).

But my interest has been triggered by a symposium held at Victoria University of Wellington recently, hosted by the NZ Centre for Public Law, in conjunction with the Institute of Policy Studies and Birkbeck University's Centre for New Zealand Studies. Local and international experts together (some via video-link) to reflect on the effect of MMP on our constitution. Some of the main themes and tid-bits from the discussion are interesting, as the conversation was a useful stock-take of the impact of MMP over the past 12 years. It also a helpful shopping list of some of the future challenges for MMP.

The papers available at www.victoria.ac.nz/nzcpl/events/e1010.aspx. And some summaries of the sessions available on NoRightTurn (norightturn.blogspot.co (1); (2)) and KiwiBlog (kiwiblog.co.nz (1); (2)).

Government formation If we first look at the government formation process, the need for coalition arrangements has fundamentally changed this part of our constitutional culture and conventions. We now have what some describe as the "indirect election" of governments. Professor Philip Joseph argues that people elect their Parliaments, but not their governments. Although technically the case under FPP, it's become more striking under MMP. The prerogative of government formation is now vested in the political parties who have been elected to Parliament.

Coalition – or multi-party governance – arrangements The novel nature of the coalition arrangements was the subject of much discussion. Or as it was suggested we should call them: multi-party governance arrangements.

  • Formal executive coalitions. Confidence and supply agreements. Cooperation agreements. Hybrids between the two.
  • Some with ministerial posts. Most with "agree to disagree" provisions.

Real efforts have been made in NZ to try and conquer what's been described as the "unity-distinctiveness" dilemma. That's meant we've had to move past our traditional Westminster language and understanding. Terms such as "government" and "opposition" are much more complex and arguably less relevant labels.

What's interesting is the unique, unorthodox nature of these arrangements around the world. There are few direct parallels in other multi-party democracies. Kiwi pragmatism, experimentation, and incrementalism has been striking.

Cabinet collective responsibility But those changes haven't been without some controversy. A particular casualty in the MMP environment has been the constitutional principle of Cabinet collective responsibility, with the agreements to disagree allowing coalition and confidence and supply partners to speak out in opposition to the government position with impunity.

I won't bore you with the details but there was nice little bit of academic fisticuffs about the nature of the constitutional principle of unanimity (that requires government speak with one voice). While most agree, at least, that MMP as weakened this principle, there's a question about whether the remains a need for the principle. Some argue it is only a principle of pragmatic politics, not constitutional imperative. Others think it is heresy to suggest so, partly the Brits.

The law-making process If we look back at the time before MMP, our legislature was regarded as "one of the fastest law-makers in the West". We had an "elected dictatorship", with majority government and Cabinet collective responsibility allowing a few to control the policy and legislative process through domination of Cabinet and legislative.

Dr Ryan Malone's work on law-making under MMP – his PhD at Vic and now published as a book (Rebalancing the Constitution: The Challenge of Government Law-making under MMP) – demonstrates that our intuition about the effect of MMP is sound.

MMP means Parliament is no longer a mere rubber-stamp for executive proposals and governments now have less control over the legislative process. Increased role of select committees. An active need to garner support for Bills. Less urgency. And so forth. Overall there's been less legislation, and it's passed more slowly and subject to greater scrutiny. That's consistent with the experience of some other jurisdictions operating under MMP, such as the Scottish Parliament and the Welsh Assembly. Although Malone tentatively ponders whether it might have done too far – with government now not being able to effectively control its legislative agenda.

The public's reaction to MMP and coalition government Professor Raymond Miller presented some data from the New Zealand Elections Studies, since 1993. For the political junkies, his slides and graphs are worth looking at.

A couple of themes that emerge:

  • The strongest support for MMP lies amongst younger voters. That's not a surprise. By 2011, about 35% of the electorate will have first voted under an MMP system.
  • And support for MMP is stronger amongst the centre left and Labour ranks, rather than centre right and National ranks.

But the differing views perhaps reflect deeper differences about the very nature of government. FPP is more strongly supported by folk who prefer a government who can "make tough decisions" (a traditional authoritarian position). Those who support MMP favour a government that keeps its promises and does what people want (a modern, democratic, participatory one).

Areas for reform Well, the universal view of the "technicians" and "experts" was overwhelmingly in favour of MMP. There was no appetite to return to FPP or even to move to another proportional system. That's consistent with the Select Committee's conclusion in 2001 when it reviewed the system. Fundamentally, MMP is fairer, delivers a better democracy, and provides more checks-and-balances. It's instructive to go back to the Royal Commission's 10 criteria for judging electoral systems to assess the success or failure of MMP:

(a) Fairness between political parties. When they vote at elections, voters are primarily choosing between alternative party Governments. In the interests of fairness and equality, therefore, the number of seats gained by a political party should be proportional to the number of voters who support that party. (b) Effective representation of minority and special interest groups. The voting system should ensure that parties, candidates and MPs are responsive to significant groups and interests. To facilitate this, membership of the House should not only be proportional to the level of party support but should also reflect other significant characteristics of the electorate, such as gender, ethnicity, socio-economic class, locality and age. (c) Effective Maori representation. In view of their particular historical, Treaty and socio-economic status, Maori and the Maori point of view should be fairly and effectively represented in Parliament. (d) Political integration. While the electoral system should ensure that the opinions of diverse groups and interests are represented it should at the same time encourage all groups to respect other points of view and to take into account the good of the community as a whole. (e) Effective representation of constituents. An important function of individual MPs is to act on behalf of constituents who need help in their dealings with the Government or its agencies. The voting system should therefore encourage close links and accountability between individual MPs and their constituents. (f) Effective voter participation. If individual citizens are to play a full and active part in the electoral process, the voting system should provide them with mechanisms and procedures which they can readily understand. At the same time, the power to make and unmake governments should be in the hands of the people at an election and the votes of all electors should be of equal weight in influencing election results. (g) Effective government. The electoral system should allow Governments in New Zealand to meet their responsibilities. Governments should have the ability to act decisively when that is appropriate and there should be reasonable continuity and stability both within and between Governments. (h) Effective Parliament. As well as providing a Government, members of the House have a number of other important parliamentary functions. These include providing a forum for the promotion of alternative Governments and policies, enacting legislation, authorising the raising of taxes and the expenditure of public money, scrutinising the actions and policies of the executive, and supplying a focus for individual and group aspirations and grievances. The voting system should provide a House which is capable of exercising these functions as effectively as possible. (i) Effective parties. The voting system should recognise and facilitate the essential role political parties play in modern representative democracies in, for example, formulating and articulating policies and providing representatives for the people. (j) Legitimacy. Members of the community should be able to endorse the voting system and its procedures as fair and reasonable and to accept its decisions, even when they themselves prefer other alternatives.

On most counts, MMP marks itself out successfully. Notably, it was never really about the behaviour of MPs – which seems to be one of the main things fuelling some growing calls for change.

But many suggested some tweaks to the system, rather than throwing the baby out with the bathwater. Some of the common aspects people thought could do with some attention:

  • one-seat threshold or "coat-tails" distortion of proportionality: eg, Hide and Dunne bringing other MPs with them, even though there were under the 5% threshold. Most people agreed this should go.
  • "backdoor" or "zombie" MPs, that is, those that lose electorate contests, but still make it in on the list. There were mixed views on whether this is really a problem or whether changing it might lead to greater differentiation between types of MPs. Interestingly, the Scottish Parliament and Welsh Assembly both reviewed this issue; in Wales, candidates now have to choose to be on the list or a contest an electorate, not both, although our own Select Committee's review in 2001 suggested that dual candidacy should be retained.
  • the related question of "open party lists"; one solution suggested by Professor Nigel Roberts is the Swedish system, where voters are entitled to nominate one candidate on the list for promotion and they go to the top of the list if they receive more than 8% support.
  • the Māori seats; a number of people reminded us that the original recommendation of the Royal Commission was their abolition – but with the complementary recommendation that the usual 4% (now 5%) threshold not apply to Māori parties.
  • the "overhang", like we've got now where parties get more electorate seats then their popular vote – and might get even more in the new Parliament.
  • the present 3-year term, a number of people thought the system of politics would work better with a longer term, particularly given the time taken nowadays for government formation.
  • and, generally, a systemic update of the old Electoral Act 1993 – which now looks largely out-of-date.

The important thing to take from this list is the fact that many of these changes could be made legislatively, without a need for a full blown referendum (although cross party support would be desirable for these reforms).

1 comment:

Anonymous said...

I wonder now if STV might have been a better option. All MPs would be electorate MPs (albeit from large multimember electorates). The use of the party tick box (used in Australian Senate elections) would get rid of the problem of numbering which causes so much angst for so many in local government elections, but would still be an option for those who do not favour their preferred party's preferred order. Colin James once put it well when he said: "If the Germans had had STV and the Irish had had MMP, then the Royal Commission probably would have backed STV."

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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