On Wednesday I argued that New Zealand should fix the general election date in law. Here's how it could be done.


Following my previous post, I got an email from Idiot Savant over at No Right Turn suggesting that I might like to try my hand at drafting up a member's bill that would fix the election date in law. I guess he's of the view that it is unlikely the current Government (or maybe any government) will voluntarily relinquish its advantage by taking this step, but might be forced to do so if the House were to consider the matter by way of a legislative proposal from the Opposition benches.

Whether or not he's right about that, here's my suggestion about how the move could happen. Discussion and devastating criticisms always welcome in the comments thread below ... while any MP (or MP's advisor) who happens to read this is welcome to steal the idea gratis.

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Electoral (Fixed Election Date) Amendment Bill

Member's Bill

1. Title

This Act is the Electoral (Fixed Election Dates) Amendment Act 2010.

2. Commencement

This Act comes into force on the day after the date on which it receives the Royal assent.

3. Date for the General Election

The following section is inserted into the Electoral Act 1993.

125A Date for the General Election

(1) Subject to subsection (2), the date for a general election shall be the last Saturday of November in the third calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Saturday, November 26, 2011.

(2) A general election may be held on a date other than that specified in subsection (1) only if a resolution of the House to that effect is supported by a majority of members of Parliament voting upon the matter.”

4. Constitution Act amended

The Constitution Act 1986, section 18(2) is repealed and the following subsection is substituted.

“(2) Subject to the Electoral Act 1993, s. 125A, the Governor-General may by Proclamation prorogue or dissolve Parliament.”

 

Comments (25)

by Rob Salmond on July 16, 2010
Rob Salmond

 

So I'm sympathetic towards this idea. There is plenty of experience of fixed election dates in Europe, and the sky does not appear to have fallen as a result.

But I'm not convinced that the drafting here helps the cause too much. My read of 3(2) is that any PM who can command a parliamentary majority on confidence issues (and the election date is surely a confidence issue) can still do whatever he/she pleases. Almost all PMs have that majority, and a simple motion in the House is not much of a procedural barrier. So what have we gained?

Could you strengthen 3(2) to make it a supermajority? Then at least it would make the government of the day pay the PR cost of screwing around with a supermajority requirement and possibly appearing anti-democratic if it wants to set an early date. And it preserves the right of Parliament to dissolve itself early if there is widespread agrement that elections are needed.

by Andrew Geddis on July 16, 2010
Andrew Geddis

Rob,

Yes - this proposal could still be gamed. However:

(1) At present, the PM can advise the GG to dissolve Parliament and call an election without needing the agreement of any support party. So, in 2002, Helen Clark was able to call an early election without asking the Alliance whether that was a good idea. This proposal will at least require the governing parties, as opposed to the PM's party alone, to agree to go early.

(2) At present, the PM simply has to turn up in the GG's rooms and say "I want Parliament dissolved please", then issue a press release to say why. Requiring the motion to be placed before the House and get debated (I'd argue Standing Orders should be amended to make it clear any such motion requires debate before being voted on) focuses public attention on the process and reasons behind it to a much greater extent ... for one thing, it'll provide nice TV images and a stage for the Opposition to attack the Government's motives. That publicity may help to counteract the partisan advantage gained from the decision.

(3) A super-majority raises the problem of where to set the figure? What would be a proper one here in NZ - 75% (like the entrenched provisions of the Electoral Act), which in effect means an early election if Labour and National agree to it? Should the minor parties be locked out of the decision in this way?

I note that the new coalition's original proposal for fixed terms in the UK was going to have a requirement of 55% of MPs voting for an early election (Labour + the Lib Dems have 53% of MPs between them, so this would ensure the two of them couldn't pull the government down if things got rocky between the Lib-Dems and Tories). That's now been abandoned, and a bare majority in the Commons will trigger an early election.

Finally, note that the governing party always has the thermonuclear option available to it ... a PM can simply say "I resign as PM, and my party will not support anyone else in Government." Unless the House can cobble together some sort of replacement government - which just couldn't happen in the present configuration - then there will have to be an early election. Setting the threshold for calling this at higher than 50% won't change that outcome - although it could delay it a bit.

by Graeme Edgeler on July 16, 2010
Graeme Edgeler

It might fix the election date, but I think this breaks the Electoral Act.

For example: political crisis in February 2013. Confidence and supply agreement breaks down - following motion of the House the Governor-General dissolves Parliament, a new election called for late March. The writs are returned in April, and the new Parliament commences.

Parliament expires in April 2016, but the Governor-General is prohibited from calling an election for any date other than November 26, by s 125A(2), but required to hold one much sooner under ss 125 and 139.

Hilarity ensues.

by Graeme Edgeler on July 16, 2010
Graeme Edgeler

At present, the PM simply has to turn up in the GG's rooms and say "I want Parliament dissolved please", then issue a press release to say why.

Only if they have the confidence of the House.

Requiring the motion to be placed before the House and get debated (I'd argue Standing Orders should be amended to make it clear any such motion requires debate before being voted on).

Standing Orders are clear enough already. The only way such a motion could be passed without debate is with the leave of the House. I imagine they wouldn't get it. And if they could, and your proposal that that be prohibited was adopted, no-one would take a call.

by Andrew Geddis on July 16, 2010
Andrew Geddis

Graeme,

Huh. Yes. Two options.

1: Have a ss.3 that says where the date in subsection (1) would be inconsistent with ss.125 & 139, then the election date must be the last Saturday in November in the second year following the last general election ... in other words, a shortened parliamentary term follows any early election in order to "reset" the electoral timetable. That also would work as a disincentive to Government's going early for partisan reasons ... it would win you a shortened new term in office.

(Incidentally, would this be an opportune time to discuss increasing the term of Parliament to 4 years ...?)

2: Trust that the new Parliament following the early election has enough sense to amend ss.(1), so as to avoid said hilarity.

by Andrew Geddis on July 16, 2010
Andrew Geddis

Graeme (part 2),

Yes - the PM must not have lost the confidence of the House. But take the dissolution of Parliament in 2002 ... is there any evidence Helen Clark asked the Alliance's agreement to pull the plug? In other words, given she enjoyed general confidence (in that she'd won the last confidence vote and nothing had happened since to cause the GG to doubt she still had the numbers), her lone decision was fait accompli ... what could the Alliance do, given it only found out the election was going to be called at the same time everyone else did (i.e. after the visit to the GG)? I still think a situation where the PM has to turn up in the House to explain the need for an early election, and get the vote to authorise it is both more legitimate and more likely to stop partisan gaming.

As for changing Standing Orders ... well then, that's one less thing needs done!

by Graeme Edgeler on July 16, 2010
Graeme Edgeler

I think we have to go with option 1, but I think I'd achieve it a different way ... my first thought was "last saturday in the November immediately preceding the expiry of Parliament", but that seems a little odd - the default election (i.e. the election where no-one does anything) might then occur while Parliament was sitting - it shouldn't be the case that the Governor-General should have to exercise a reserve power (to dissolve Parliament absent advice to do so from a PM with the confidence of the House) just to hold an ordinary election.

It seems to me what's needed isn't just a fixed election day, but a fixed everything else as well. A fixed nomination day 25 days before polling Day, a fixed day for the issue of the writ 5 days before that, and another for its return, a fixed day for the close of the roll and one for the start of advance voting etc. and - most importantly - a fixed day for the expiry of Parliament, probably just over a month before the fixed election.

(Incidentally, would this be an opportune time to discuss increasing the term of Parliament to 4 years ...?)

No. The opportune time to have that discussion is when - becuase of the fixed election date - we're having an election two years and two months after one held in September, and people are talking about how stupid it is to have the election so soon...

by Graeme Edgeler on July 16, 2010
Graeme Edgeler

I still think a situation where the PM has to turn up in the House to explain the need for an early election, and get the vote to authorise it is both more legitimate and more likely to stop partisan gaming.

No disagreement from me on this. And no reason for it to be tied to a fixed election day either.

by LJ Holden on July 17, 2010
LJ Holden

And no reason for it to be tied to a fixed election day either.

There's two issues here - the structure and consequences of votes of (no) confidence, and the date of elections being set in legislation.

Personally I think you actually don't need to set the date of elections, de facto they already are set by s17(1) of the Constitution Act (The term of Parliament shall, unless Parliament is sooner dissolved, be 3 years from the day fixed for the return of the writs issued for the last preceding general election of members of the House of Representatives, and no longer.).

The key there is "unless Parliament is sooner dissolved".

The solution, in my mind, would be to prevent the Prime Minister from advising the Governor-General to dissolve parliament unless they had lost a vote of no confidence, and parliament had not expressed confidence in anyone else as Prime Minister.

That also allows the Governor-General to retain their reserve power to dissolve parliament should things be getting messy, or the government is trying to do something illegal (ala Australia in 1975).

Under MMP it's unlikely the Prime Minister's party would have a majority, hence there's a natural safeguard against early elections.

by Andrew Geddis on July 17, 2010
Andrew Geddis

LJ,

Problem with just leaving it to the Consitution Act is that the 3 years term of Parliament would keep shuffling the election date back and back. So - if the next election were held in late November 2011, then the writs would be returned in mid December. This would mean Parliament being dissolved in mid-December 2014 (i.e. three years later), with an election for sometime in January 2015 and the return of the writs at the end of January ... and so on. I don't think anyone wants to see an election campaign held over Christmas, hence the sense in fixing the date for late November.

Further, your suggestion "to prevent the Prime Minister from advising the Governor-General to dissolve parliament unless they had lost a vote of no confidence, and parliament had not expressed confidence in anyone else as Prime Minister" is the position in Germany. However, as was demonstrated in 2005, this safeguard also is open to being gamed. I'd still prefer to see a positive vote by the House to authorise a new date - it just seems a cleaner solution to me.

The "reserve powers" question is an interesting one. Is it the Governor General's job to haul back the Government if it "is trying to do something illegal" - isn't that what courts are for? And the Cabinet Manual already makes it clear that it is the political parties responsibility to work out a solution in a situation where confidence in the Government fails, not the Governor General's. Shouldn't we concretise this expectation into law?

by LJ Holden on July 18, 2010
LJ Holden

hence the sense in fixing the date for late November.

Hmm, good point.

I'd still prefer to see a positive vote by the House to authorise a new date - it just seems a cleaner solution to me.

But that's the same problem expressed differently. A vote of confidence requires a majority to pass - exactly what your Bill above requires. I think you need to have a super-majority (say 3/4) plus a majority of party leaders, as an extra safeguard for smaller parties against the larger parties forcing a vote to kick a smaller party (ala 2002).

BTW I was thinking of Rod Donald's Bill to define votes of confidence as a solution:

http://www.republic.org.nz/node/1466

The "reserve powers" question is an interesting one. Is it the Governor General's job to haul back the Government if it "is trying to do something illegal" - isn't that what courts are for?

Ah yes - but remember the reserve powers are non-justiciable (i.e. they can't be challenged in court), because "the Queen can do no wrong". Of course I think that's patently ridicolous, and the Supreme Court ought to have the power to test any action of a constitutional office in New Zealand in court.

And the Cabinet Manual already makes it clear that it is the political parties responsibility to work out a solution in a situation where confidence in the Government fails, not the Governor General's. Shouldn't we concretise this expectation into law?

Sure. Perhaps a solution would be to codify the confidence and supply rules so that the Supreme Court dissolves and calls parliament:

by Andrew Geddis on July 18, 2010
Andrew Geddis

A vote of confidence requires a majority to pass - exactly what your Bill above requires. I think you need to have a super-majority (say 3/4) plus a majority of party leaders, as an extra safeguard for smaller parties against the larger parties forcing a vote to kick a smaller party (ala 2002).

Yes - but a loss on a vote of confidence may result either in a change of government (if an alternative governing arrangement is sorted out) or the need for a new election (if one can't be). So I still see a reason for an affirmative vote by the House to move to an election - it's proof that the political actors have reached the point where they can't make anything work, and so it's time to let the voters deal a new hand. As I say, the expectation under the Cabinet Manual already is that this process will occur before the PM advises the GG to dissolve Parliament - I just think it could be given legal force and an instutional form.

But I don't favour supermajorities for this - there's a risk involved in trying to use the law to tie down politics too much (witness the now defunct anti-party hopping law). If a government wants to use its majority to force a new election, then there's really nothing can be done about this (where there is  no other viable governing coaltion). It can effectively go on strike ... which is what Schroeder did in Germany in 2005 ... and if it wants to pull the plug in this way then legal rules to try and stop it will simply delay the inevitable. The most that can be done is to force it to do so openly and subject to open criticism and debate in the House.

Ah yes - but remember the reserve powers are non-justiciable (i.e. they can't be challenged in court), because "the Queen can do no wrong".

Quite - but my point is that I don't regard the reserve powers as being a very useful guard against a government acting in an unlawful fashion. A declaration from the courts is the better response. So my proposal would actually remove an aspect of the reserve powers by effectively legislating it out of existence and locating the decision in the House.

Perhaps a solution would be to codify the confidence and supply rules so that the Supreme Court dissolves and calls parliament.

Urk ... no! Asking the judiciary to make decisions on when and if Parliament should be ended/called together would upset several hundred years of constitutional practice in a way that I'm not putting my fingerprints on. To say nothing of heightening the risk of a politicised judiciary, etc!

by Matthew Whitehead on July 18, 2010
Matthew Whitehead

Personally, I think the calling of an early election should be preceded by the loss of a confidence vote and the failure to express confidence in a new government. If a majority of MPs then agree on an election date, they should be able to set it, within a few sanity checks. (at least a month until the election, no more than three months before it?) The law can then state that the governor general only dissolves parliament on the fixed schedule, or after parliament fails to establish confidence in a government.

If governments want the advantage of an early election, they get to explain to the media why they're voting against themselves- they still have the procedure to call an early election if necessary.

I think any bill seeking to fix the election date also needs to establish the differences between an early election and a regular election, rather than just replacing the sections of the Electoral Act that deal with normal election procedure. It's a bit too easy to run into constitutional problems otherwise.

by Andrew Geddis on July 18, 2010
Andrew Geddis

@Matthew: "I think any bill seeking to fix the election date also needs to establish the differences between an early election and a regular election, rather than just replacing the sections of the Electoral Act that deal with normal election procedure. It's a bit too easy to run into constitutional problems otherwise."

I'm not entirely sure what you mean by these "differences". Irrespective of how the election date is triggered (i.e. whether it is set in law/by resolution of the House/on the PM's advice), the same timetable would apply with respect to nomination day and return of the writ. As for "constitutional problems", could you be a bit more specific about what these might be?

by Graeme Edgeler on July 18, 2010
Graeme Edgeler

Irrespective of how the election date is triggered (i.e. whether it is set in law/by resolution of the House/on the PM's advice), the same timetable would apply with respect to nomination day and return of the writ.

Not necessarily. With a fixed election date, it would be sensible to fix other dates too - expiration of Parliament, nomination day etc. - a snap election might shorten this process, or muck around with it - it's possible a Parliament might vote itself out existence on a day that a fixed timetable of all the dates would require a non-Saturday election.

A fixed election date could also have a fixed start to any regulated period, which couldn't happen with a snap election. And the process around the allocation of Broadcasting funds is also very different under an early election - and that's one of the many other aspects of that Act that could be improved.

by LJ Holden on July 18, 2010
LJ Holden

The most that can be done is to force it to do so openly and subject to open criticism and debate in the House.

Don't get me wrong, I think this would be an improvement on the status quo. I just don't think it will lead to the outcome we desire here - that is preventing an incumbent PM from gaming the system to their advantage.

So my proposal would actually remove an aspect of the reserve powers by effectively legislating it out of existence and locating the decision in the House.

Absolutely, which is why I support it :-)

To say nothing of heightening the risk of a politicised judiciary, etc!

Exactly... just a suggestion :-)

by Matthew Whitehead on July 19, 2010
Matthew Whitehead

I'm not entirely sure what you mean by these "differences". Irrespective of how the election date is triggered (i.e. whether it is set in law/by resolution of the House/on the PM's advice), the same timetable would apply with respect to nomination day and return of the writ. As for "constitutional problems", could you be a bit more specific about what these might be?

Essentially, I mean that you need to set out the details of snap election procedure, and all the details that go along with that if you're going to set them on the same schedule as the fixed date. You're certainly right that setting up a new parliament after either type of an election would be regulated automatically relative to the date for the return of writs.

Mostly the constitutional problems you can run into is when the amendment is inconsistent with unamended parts of the law. There were some issues with that for example with Keith Locke's Head of State bill. Largely it looks like you've checked for them though, I can't think of anything that immediately contradicts the fixed election process.

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