The new parliamentary year kicked off in New Zealand
this week, following an election held late last year in the shadow of the Rugby
World Cup.
A National-led, multi-party government was returned to
power, with John Key continuing as Prime Minister. The National party won a record
share of the party vote (47.3%, which translates into 59 MPs of the 121 MPs in
Parliament). However, the coalition government’s overall majority in Parliament
fell slightly as support for the minor parties in the coalition dropped (64
government MPs vs 57 opposition MPs, down from 69 vs 53 MPs following the last election).
After the election and the formation of government,
there was little time for parliamentary business before the summer holiday. MPs
return to serious business this week, under slightly revised Standing Orders (most
notably, with new provisions regulating urgency and extended sitting hours,
following growing concerns about the increasing amount of law-making being
fast-tracked; see Geiringer et al, What's the Hurry?
(2011)).
Three matters from the election and new term of
government are of some constitutional interest:
- the voting system referendum and subsequent review;
- the multi-party coalition/governance arrangements
and collective responsibility;
- particular policy commitments (constitutional
review, regulatory standards, part-privatisation of State-Owned Enterprises).
Each of these matters has an on-going constitutional
dimension, which will be played out in this 50th term of New Zealand’s
Parliament.
Voting
System Referendum and Review
As well as choosing their government, voters were also given
the opportunity on election day to express their views on the current voting
system.
The referendum process was a mirror image of the original
referendum process adopted in 1992-1993 when New Zealand changed from the First
Past the Post system (FPP) to the Mixed Member Proportional system (MMP).
Voters were presented with two questions:
A: Should New Zealand keep the Mixed Member
Proportional (MMP) voting system?
Yes / No
B: If New Zealand were to change to another
voting system, which voting system would you choose?
First Past the Post (FPP) / Preferential Voting (PV) / Single Transferable Vote
(STV) / Supplementary Member (SM)
Like the original referendum, if there was a mood for change
in the first part of the referendum, then the status quo would be run-off
against the most popular alternative system in a subsequent binding referendum.
On election day, voters overwhelmingly endorsed MMP in first
part of the referendum, securing 57.8% of valid votes -- up from 53.9% in the 1993
referendum which originally saw MMP adopted. A significant endorsement for
proportional representation.
In the second part, the old FPP voting system was the most
supported alternative (46.7% of valid
votes), with nearly double the support of the SM system endorsed by the
Prime Minister and the main lobby group promoting change (24.1%). But, still,
more people spoilt their vote in the second part of the referendum than
supported FPP.
MMP’s victory in the first part of the referendum obviates
the need for a subsequent binding referendum. However, the victory
automatically triggered a review of aspects of the MMP voting system. A public
consultative review must now be undertaken by the Electoral Commission, with a
report due in October 2012 (see
Electoral
Commission review process).
The terms of reference include:
- the thresholds for a proportionate share of the party votes (presently 5% of
the party vote or one electorate seat),
- the ratio of electorate seats to list seats,
- dual candidacy in an electorate and on a party list, and
- the ranking of party lists.
The number of MPs in Parliament and seats reserved for Māori
are specifically excluded from review.
The Electoral Commission is set to release its discussion
paper this month, with a couple of issues expected to be at the forefront. The
thresholds for entitlement to party list seats (particularly the one electorate
seat rule which sees an MP bring in other list MPs on their coat-tails even
though their party fails to meet the otherwise applicable 5% threshold) have
been subject to a lot of criticism from both the public and experts. There is
also significant public disquiet about so-called “zombie” MPs – those MPs
rejected in electorate seats but who return to Parliament via the party list. This
will provide some impetus to change the rules presently allowing dual
candidacy, although the views of experts on such a change are more equivocal.
(For some literature assessing the operation of MMP and multi-party government
in New Zealand, see
(2009) 7(1) NZJPIL
(Special Issue: MMP and the Constitution) and
(2011) 63(1) Political Science
(Special Issue: Coalitions).)
The Electoral Referendum Act 2010 does not address any
change process following the report of the Electoral Commission, with any
decision about what to do with the recommendations being left for Parliament.
The recommendations and process which follows will be watched with great
interest, particularly whether any changes to MMP will be taken back to the
people for endorsement.
Governance
Arrangements and Collective Responsibility
As mentioned, a National-led government was formed soon
after the election, with support from the single MP United Future and ACT
parties, along with the three-member Maori party.
The coalition – or, rather, “confidence and supply” – arrangements
took the same form as those adopted by recent administrations. In return for a
commitment to support the government on confidence and supply, support parties
negotiated ministerial positions (outside Cabinet) and a number of policy
concessions (see the separate but largely similar agreements agreed with
United
Future,
ACT
and
Maori
parties). Otherwise, the principal focus of the agreements is operational and
relationship arrangements.
From a constitutional perspective, the most notable aspect
of the governance arrangements is the approach to the tricky “unity-distinctiveness”
conundrum that underlies coalition politics (see Boston and Bullock, “Experiments
in Executive Government under MMP in New Zealand” (2009) 7 NZJPIL 1). In
particular, collective Cabinet responsibility has been deliberately eroded
under MMP to allow greater ability for support parties to express disagreement
with governmental policies and decisions.
Loose – and progressively looser – solidarity rules have
been adopted in governance arrangements to ensure support parties can distance
themselves from some decisions of government so that they can maintain their distinctiveness
(see
LAWS179:
“The (r)evolution of collective responsibility”).
The first departure saw the inclusion of “agree to disagree”
provisions, where a support party could seek permission not to support a particular
governmental policy.
Subsequently, a form of “selective collective
responsibility” has been adopted, where collective responsibility only applies
to ministers from support parties in relation to matters
within their ministerial portfolios. Outside their portfolio
responsibilities, they are entitled to wear their party – rather than
ministerial – hat and may refuse to support decisions made by Cabinet (except,
of course, on matters of confidence and supply, which they must still support
in parliamentary votes). This circumscribed form of collective responsibility –
for ministers from support parties, restricted to portfolio responsibilities – is
now seen as routine and is recorded in confidence and supply agreements, along
with the Cabinet Manual (see
Cabinet
Manual, cls 5.22-5.28).
But the practice appears to be still evolving further. There
have been
some
instances in the last term of government where ministers from support
parties expressed disagreement in relation to decisions made
within their portfolio responsibilities
– with such dissent being condoned by the Prime Minister. This hints at further
loosening of cabinet collective responsibility. However, any evolution has not
yet been reflected in the Cabinet Manual (which lags behind practice, like a
dictionary: see
Kitteridge,
“The Cabinet Manual : Evolution with Time”) or the newly agreed confidence
and supply agreements, which merely restate the principle of selective
collective responsibility within portfolio responsibilities.
Prime Minister John Key generally adopts a relaxed attitude
to dissent within his government, no doubt reflective of the fact that his
coalition brings together minor parties with very different ideological
leanings. It will be interesting to see whether this further modified approach
is fortified under the present government’s tenure.
(As an aside, the loosening of the demands of collective
responsibility has led some to again question whether collective Cabinet
responsibility continues to have any constitutional character: see Joseph,
Constitutional and Administrative Law in New
Zealand (2007), p 750 (“it is a rule of pragmatic politics, not a
constitutional convention”) and
Geddis,
“Decisions, dissent and the myths of collective cabinet responsibility”.)
Particular Policy
Commitments (Constitutional Review, Regulatory Reform and Part-Privatisation of
SOEs)
Three particular policy commitments within the confidence
and supply agreements have some constitutional interest.
First, the commitment to a wide-ranging review of
Constitutional Arrangements has been renewed in the confidence and supply
agreement with the Maori Party. Originally included in last term’s agreement, a
review was belatedly instigated last year under the co-chairship of Emeritus
Professor John Burrows QC and Sir Tipene O’Regan (see
Department
of Justice, “Consideration of Constitutional Issues”). While little
progress was made before the election, the Review’s mandate is confirmed and a
reporting date of September 2013 has now been set.
The Review’s terms of reference are wide. Various electoral
and parliamentary matters are slated for review (size of Parliament,
parliamentary term - including the possibility of fixed terms, number and size
electorates, and party-switching consequences for MPs). A number of contentious
issues relating to the Crown-Māori relationship are included (such as Māori
representation in Parliament and local government, and the place of the Treaty
of Waitangi in New Zealand’s constitutional arrangements). These agenda items reflect
key policy differences between the governing National party and supporting
Maori party and the genesis of the review process – depending on one’s
perspective, either to genuinely explore some compromise or to remove these
issues from the political crucible. The Bill of Rights is also targeted for appraisal
(particular entrenchment and the possibility of including property rights), as
is the perennial question of a written constitution.
Rather oddly, the terms of reference avoid issues relating
to the Head of State and republicanism (especially as
officials
in New Zealand’s Cabinet Office are coordinating the multi-realm efforts to
amend
the line of succession). This apparently stems from a governmental concern
that republican issues might distract people from more important constitutional
issues. However, the government has
acknowledged the republican question might still find its way into the Review,
if there is a public appetite for discussion.
Secondly, the confidence and supply agreement with the ACT
party breathes life into the
Regulatory
Standards Bill, albeit in a much diluted form. Earlier efforts by the ACT
party in the last two terms of Parliament to advance a Bill insisting that new
laws conform to “principles of responsible regulation” were widely condemned –
including by Treasury, as the department responsible for such reform – and ultimately
stalled (see
Ekins,
“Regulatory responsibility in New Zealand”.)
The ACT and National parties have agreed, however, to revise
the Bill for enactment within the next 12 months. This Mark III version is to
be based on the
Treasury’s
preferred alternative for regulatory reform (Option 5): strengthening
Parliament’s own legislative quality and impact assessment processes. This
shift in focus is welcomed, especially because the original Bill would have
fundamentally reconfigured key constitutional relationships and placed the
courts in an awkward position of adjudicating on the quality or merits of
legislation.
But much work is still to be done to settle the suite of
principles against which legislative quality is to be assessed (for example, the
present suite is labelled by Ekins as “heterodox”). It seems strange to attempt
to reinvent the wheel by generating controversial and loaded principles of
regulation, when New Zealand has for many years had an excellent – more
detailed, nuanced and respected – bible on legislative quality in the
Legislative Advisory
Committee’s Guidelines on the Process and Content of Legislation.
Thirdly, one of the central planks of the National party’s
electoral platform was the part-privatisation of some State-Owned Enterprises.
The National party negotiated on-going support from the ACT and United Future
parties (but not the Maori party, which recorded its specific opposition) for
the extension of a mixed-ownership model to three state utility companies and
the government-owned coal mining company; that is, sale of 49% of the shares in
these companies to the public, with retention of a 51% majority shareholding by
the government.
Those plans took an interesting turn last week when it was
revealed that the government was considering not carrying over the present
Treaty of Waitangi clause into the new legal regime governing mixed-ownership.
The existing clause in the State-Owned Enterprises Act
prevents the Crown from acting inconsistently with its obligations to Maori under
the Treaty of Waitangi (and is supported by other provisions ensuring SOE land
is preserved for return as part of the settlement of Treaty grievances). The incorporation
of this Treaty obligation was a catalyst for the development of much of New
Zealand’s modern Treaty jurisprudence and the rise in the Treaty’s
constitutional gravitas (see
Cooke,
“The Challenge of Treaty of Waitangi Jurisprudence”,
Baragwanath, “NZMC v AG”, and
Ruru (ed), In Good Faith). The Treaty clause therefore
has great legal and symbolic significance, especially for Maori.
Unsurprisingly,
the
government’s proposal not to roll over the Treaty clause (or to otherwise
tinker with it) has sparked outrage amongst many Maori and others. Protests
took place at the Waitangi Day celebrations over the weekend. Claim were
quickly lodged with the Waitangi Tribunal, alleging the proposed
part-privatisation breached the Treaty.
While the government has the parliamentary numbers to
proceed with part-privatisation, the question of how it navigates through the
Treaty implications and tensions with its Maori party coalition partner will be
interesting. It is early days at this point. But the issue will no doubt occupy
the political and legal domains in New Zealand for much of the year.
Dean Knight is a
Senior Lecturer at Victoria University of Wellington’s Faculty of Law, an
Associate of the New Zealand Centre for Public Law, and a PhD candidate at LSE.
