MMP – a renovation job or a tear-down?

​This article first appeared in the February 2011 issue of Boardroom magazine.

You will be asked to vote on MMP in the near future – possibly twice.  Once in a referendum tacked onto the general election next year, and potentially again in 2014.  In both cases it will be the unimproved version of MMP that you will be presented with.  Do we need to do this, and are we going about it the right way?

You've got to ask what political price would National have paid had it quietly shelved its pledge to put MMP to the vote this year?  Would there have been mass protests in the main centres?  A lunchtime rally with a couple of polite placards on the forecourt of Parliament?  A few letters to the editor?  None of the above?
We should not pretend that MMP is working perfectly but neither can it be described as a failure.  Certainly it is not clear that public opinion has shifted much since New Zealanders voted by a material 54% to 46% margin to adopt MMP in 1993. 
First-past-the-post lost its moral authority for two reasons.  Firstly, there were too few checks on the executive.  The result was that if you could control the cabinet you could control the country (although whether the political horse-trading associated with coalition government produces better quality policy is a moot point), and the election outcome often bore little relationship to the distribution of votes. 
This was particularly marked in the 1978 and 1981 elections.  Both were won by National although Labour got more votes.  Social Credit managed only two MPs in 1981 and none in 1978 despite polling 20.7% and 16.1% of the vote respectively.  A similar fate befell the New Zealand Party in 1984 when it was unable to convert its 12.3% vote share into a single seat.
MMP was designed to deliver a more proportionate House and has done so.  However this has not been entirely successful due to the effect in combination of the 5% rule and the waiver of that rule on the winning of a constituency seat.
The Royal Commission recommended that the threshold should be 4% but Parliament opted to follow the West German model and make it 5%.  This decision locked out the Christian Coalition (on 4.3% of the vote) in 1996 and New Zealand First (on 4.07% of the vote) in the current Parliament.  Yet, ACT, which got only 3.65%, has five MPs – basically because National allowed Rodney Hide to win Epsom but put up a top candidate to tip Winston Peters out of Tauranga.
Another serious irritant in the application of MMP is waka jumping.  The politicians sought to deal with this through the Electoral Integrity Act 2001 which required MPs to resign from Parliament if they left their party.  But the law was never very effective.  The Alliance demonstrated that it could be easily circumvented by not formalising the Jim Anderton-led split to New Labour and Donna Awatere Huata revealed how difficult it was to enforce by fighting ACT’s attempt to dislodge her all the way to the Supreme Court. 
Awatere Huata argued that the balance of the House was maintained because, although no longer a member of the ACT caucus, she continued to vote according to ACT policies and principles; much the same as Chris Carter is doing now.

What's likely to be under review?

All of these pressure points will be included in a possible review of MMP to be conducted by the Electoral Commission - should the referendum mean a review happens.  Other matters the Commission will be instructed to look at are:
  • dual candidacy - whether electorate candidates should also be on the list, effectively using it as a safety net to ensure their return to Parliament should they fail to win their seat
  • closed party lists - whether voters should be able to exert some influence over who is elected from the list (perhaps by being able to rank candidates)
  • overhang – whether extra MPs should be added to maintain proportionality when a party wins more electorate seats than its list vote qualifies it for (we now have a 122-seat Parliament to accommodate the five Māori Party MPs), and
  • the effect of population on the ratio between electorate and list seats.  It is now 70:50 but may have to be readjusted to prevent either the size of electorates or the size of the House getting too big.

Māori representation and the number of MPs have been held out for the three-year constitutional review.  Between them, the constitutional review and the review of MMP (if it occurs) seem to cover all the bases.  

A strange sequence

However the Government is following a curious sequence.  The current MMP framework will be reviewed only in the event that it beats the alternatives across either one poll or two.  In other words, you will be asked to make your choice on the basis of the current, unimproved MMP.

The first referendum, to be held in conjunction with this year’s elections, will ask people whether they want to retain MMP and, regardless of their answer to that question, which of four alternative systems they would prefer: FPP, Preferential Vote, Single Transferable Vote and Supplementary Member.

If there is a majority vote next year for MMP, we will proceed straight to the review of possible improvements.  If there is not, there will be a run-off at the 2014 election between the current MMP and the most preferred of the other options. 

The Government justifies this approach on the grounds that it would be a waste of time and resources to go to all the trouble and expense of a review until we know that MMP is to be retained.  But surely it would make more sense if the review was conducted in advance, at least ahead of the second referendum, so that people know exactly what they are voting for.  And in the scheme of things, the cost of a review should not be the overriding consideration.  The Government has spent our money on far less worthy things.

The public is entitled to expect a review of MMP upfront, and the opportunity to make an informed choice between electoral systems, because there is much at stake.  The move from FPP to MMP has taught us that the design of our electoral system will determine the nature of our Parliament, the character of our governance and the distribution of power within our society.

Key points

  • Overall MMP has led to a more proportionate House than first-past-the-post ever achieved.
  • The 5% rule, waiver of that rule on winning a constituency seat and waka jumping create pressure points.
  • If the referendum leads to a review, the Electoral Commission will look at dual candidacy, closed party lists, overhang and the effect of population on the ration between electorate and seats.
  • If MMP is rejected in the referendum, a choice of electoral systems will be put to the vote in the 2014 election.

Andy Nicholls is a Chapman Tripp partner and a member of the Chapman Tripp public law team.​

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