NZ First wants to charge straying MPs $300,000. I say they can't do it. Winston says I'm wrong. Where does the truth lie?

There's a well known saying around Wellington that you haven't really made it until you've been rubbished by Winston Peters on the radio. What, you haven't heard this saying? Well, you have now ... so it's on its way to becoming well known.

I had my taste of Winston's irritated dismissal on this morning's Morning Report, in relation to this story:

The party is changing its constitution to stop its MPs staying on in Parliament after they have resigned or are expelled from caucus.

The new constitution states that any new member who agrees to become a New Zealand First candidate will have to sign what's intended to be a legally enforceable contract.

That stipulates that if they resign from, or are expelled from, the New Zealand First parliamentary caucus, they must quit their seat in Parliament within three days. If that contract is broken, the new rules say the member would be liable for $300,000 in damages.

I get the idea behind this change. Since the demise of the "waka hopping law" back in 2005 - an issue I've posted on here - there is no statutory requirement for an MP who leaves his or her party (whether voluntarily or by expulsion) to resign from Parliament. And previous attempts by parties to use their own internal rules to force MPs to quit Parliament once they leave the party have proved unsuccessful - think back to the Alliance Party's failed attempt to oust Alamein Kopu back in 1997. So this is a novel attempt to resolve what is (for some parties) and ongoing source of extreme annoyance.

However, therein lies the problem. The $300,000 figure here clearly is designed to present an MP who leaves NZ First with Hobson's choice. Either quit as an MP, or face ruinous financial consequences. And because the rule has this effect - it is designed to force an MP from Parliament - I don't think it will be enforceable in court. And a rule of this nature only has teeth if there is a court that is prepared to, as a matter of law, make someone actually pay up the penalty figure.

So that's what I explained to Radio NZ's reporter, and what she said on Morning Report. Apparently, however, Winston Peters didn't like hearing it, because in an interview broadcast after the report was aired he accused me of not just being wrong, but fundamentally misunderstanding the case on which I based my analysis. A case, ironically, that involved him.

Now, I have been known to be wrong on the odd occasion. No mortal is perfect. But I don't think that this is one of those times. So let's go back in history and see. In the late 80s/early 90s, Winston Peters was a young(er) tyro angling to become the leader of the National Party. This horrified the National Party heirarchy, who responded by (ironically, again) changing the party constitution to include some new rules, including:

(1) A rule that let the National Party's governing board veto the nomination of any person as a candidate in any electorate;

(2) A pledge that had to be signed by all people who sought to become candidates for National, promising not to stand against National if they were unsuccessful in being selected.

Now, Winston Peters is not silly, so he could see what was coming. To be eligible to be selected as a candidate for National in his Tauranga stronghold, he'd have to sign this pledge. But once he did so, the National Party's board would veto his nomination. And then it would try to enforce his pledge against him, in order to stop him running against it.

So off went Winston Peters to the High Court to seek a declaration that the National Party's new rules couldn't be used in this way. As it turned out, he lost on the first point. But it's the second point that really is of interest here, because in relation to it he won his argument. Here's what the court said (sorry it's so lengthy, but as I'm being accused of not getting the case right, I thought I'd let you decide for yourself):

In appropriate cases the Courts will decline to enforce contractual provisions upon the ground that to do so would be contrary to public policy, that is to say injurious to society. Counsel were not aware of any precedents involving the right to stand for Parliament. However, public policy can be developed to embrace fresh situations (Maxim Nordenfelt Guns and Ammunition Company v Nordenfelt [1893] 1 Ch 630, 666) and there are already helpful analogies. Some are to be found in the line of cases concerned with corruption in public affairs; Amalgamated Society of Railway Servants v Osborne [1910] AC 87 is particularly helpful. It involved an unsuccessful attempt to require trade union members to contribute funds which would be used to secure representation in Parliament and upon terms which would require the resultant Members of Parliament to vote in accordance with Labour Party dictates. Trade union rules to that effect were held to be ultra vires and illegal. The decision appears to have rested at least in part upon public policy, Lord Shaw of Dunfermline stating at pp 114 and 115:

"In brief, my opinion accordingly is: The proposed additional rule of the society that 'all candidates shall sign and respect the conditions of the Labour party, and be subject to their "whip,"' the rule that candidates are to be 'responsible to and paid by the society,' and, in particular, the provision in the constitution of the Labour party that 'candidates and members must accept this constitution, and agree to abide by the decision of the parliamentary party in carrying out the aims of this constitution,' are all fundamentally illegal, because they are in violation of that sound public policy which is essential to the working of representative government.

"Parliament is summoned by the Sovereign to advise His Majesty freely. By the nature of the case it is implied that coercion, constraint, or a money payment, which is the price of voting at the bidding of others, destroys or imperils that function of freedom of advice which is fundamental in the very constitution of Parliament. Inter alia, the Labour party pledge is such a price, with its accompaniments of unconstitutional and illegal constraint or temptation.

"Further, the pledge is an unconstitutional and unwarrantable interference with the rights of the constituencies of the United Kingdom. The Corrupt Practices Act, and the proceedings of Parliament before such Acts were passed, were but machinery to make effective the fundamental rule that the electors, in the exercise of their franchise, are to be free from coercion, constraint, or corrupt influence; and it is they, acting through their majority, and not any outside body having money power, that are charged with the election of a representative, and with the judgment on the question of his continuance as such.

"Still further, in regard to the member of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach. Accordingly, as it is put in the words of Fletcher Moulton LJ, 'Any other view of the fundamental principles of our law in this respect would, to my mind, leave it open to any body of men of sufficient wealth or influence to acquire contractually the powerto exercise that authority to govern the nation which the law compels individuals to surrender only to representatives, that is, to men who accept the obligations and the responsibility of the trust towards the public implied by that position.'"

There is precedent, then, for the view that a contract which purports to interfere with the exercise of fundamental constitutional rights associated with election to, and representation in, Parliament may be struck down as contrary to public policy.

The Court then went on to declare that the specific rule that National had adopted - you must sign a pledge not to compete against us if not selected by us - to be an "illegal contract" on these sorts of public policy grounds, meaning that it could not be enforced by a court against Mr Peters (or any other prospective candidate). Meaning that there was nothing to stop Mr Peters running in Tauranga first as an independent, and then as the leader of NZ First, when he subsequently resigned from National.

My claim is then that the courts would view the "resign from Parliament or pay $300,000" rule in the NZ First contract in exactly the same way. A private agreement (a form of contract) between the MP and the Party will not, on public policy grounds, be enforceable where it has the effect of determining membership of the House of Representatives. In point of fact, I'd suggest that any attempt to even try and enforce this rule would be a contempt of the House, insofar as it is seeking to punish an MP for continuing to sit as a member. 

There's then a couple of other points to note. First, if an MP has been kicked out as a member of NZ First, is he or she even bound by the "resign in 3 days or pay a $300,000" rule? Because that rule is a matter of vluntary contract only - and if the MP isn't a member of NZ First, does that "contract" between the MP and the party still apply? Second, the $300,000 figure seems to be one that has been plucked out of thin air to operate as a penalty provision. And, in contract law, penalty provisions are not enforceable.

So I feel pretty comfortable with my position on this isue. NZ First has tried something new. I don't think it will work. And I think the law - particularly the case that Winston Peters himself was a part of - backs me up.

Update: And if you want to hear more of me talking about this sort of thing, you can do so over on Radio NZ's Morning Report.

Comments (25)

by Ian MacKay on May 08, 2014
Ian MacKay

I wonder if MMP and the List MPs change things at all. Certainly an Electorate MP is there for the duration but a List MP might be thought of as different.

(I am sure that a Marriage contract must fit in there somewhere.)

by Andrew Geddis on May 08, 2014
Andrew Geddis

Sure, Ian ... there's an argument that the fact list MPs owe their place in Parliament to the party means we should have something like the party hopping law that we used to have. I don't personally agree with that argument (as my previous post on the issue said), but it's not a silly one.

My point simply is that in the absence of an actual law requiring MPs to quit Parliament if they leave their parties, you can't achieve the same end through the use of party rules (which are private contracts). The Courts won't enforce a rule that tries to do so.

by Dave Guerin on May 08, 2014
Dave Guerin

Andrew, I recall similar cases in employment law where the courts didn't recognise onerous non-compete or similar clauses in employment agreements. NZ First's proposal seems exactly the sort of thing you couldn't uphold in an employment situation (I note your refernece to penalty provisions), even putting aside the other high-falutin' constitutional issues raised above.

by Rich on May 08, 2014
Rich

So if an NZF MP leaves caucus in the next parliament, lawyers will get rich, future law students will be entertained and Winston's party coffers will be depleted. Sounds just fine.

by Alan Ivory on May 08, 2014
Alan Ivory

In my humble view the constitutional issues set out in Andrew's compelling argument, rather than being "high faluting", are if anything low faluting because they are fundamental.  They are not fancy or flash, they are basic and upon which all our other rights and freedoms rest, including contract, employment and other laws. They, not the private law reasons, are the basic reason Winston's worthy but unlawful scheme fails.

by Lee Churchman on May 09, 2014
Lee Churchman

there's an argument that the fact list MPs owe their place in Parliament to the party means we should have something like the party hopping law that we used to have.

I cannot see how such a law could be justified. Your party vote is not really any different from your electorate vote except that you are choosing a slate of candidates rather than a single one. If people don't look at party lists, then that is their own fault. They are free to decide that the bad candidates on the list outweigh the good, and to judge who is likely to get in on the list and who isn't. I don't even see how it is any worse than voting for a particular electorate MP even though he or she holds a couple of views you find detestable. For this reason I don't see why list MPs should be treated any differently than electorate MPs. Short of some compelling reason for treating slates of multiple candidates differently from slates of one, I can't see any way to justify a waka jumping law.

Of course people moan that there's no way of stopping some people getting in on the list, but that's in the end just complaining about other people's votes. You don't have to cast a party vote if you think all the lists suck.

by Richard on May 09, 2014
Richard

Lee,

While perhaps (as you seem to be arguing) a "party vote" can be viewed as a "vote for individual candidates on the list", it also seems quite reasonable to view the "party vote" as a vote for the party (with a view that party is something other than just the aggregate of the list candidates). Which view is right or wrong is hard to say, but certainly the electoral commission tells us that:

The first vote is for the political party the voter chooses. This is called the party vote and largely decides the total number of seats each political party gets in Parliament. (http://www.elections.org.nz/voting-system/mmp-voting-system)

So, given that is what we are told the party vote is for, it does seem reasonable to be concerned when one or more of the MPs selected because they represent a party, suddenly don't represent that party (for whatever reason).

Having said that Andrew's previous post pretty convincingly explains why actually trying to create a rule to do something about it would probably be a bad idea.

by Lee Churchman on May 09, 2014
Lee Churchman

While perhaps (as you seem to be arguing) a "party vote" can be viewed as a "vote for individual candidates on the list", it also seems quite reasonable to view the "party vote" as a vote for the party (with a view that party is something other than just the aggregate of the list candidates)

Except it isn't. The party chooses the list of candidates, but it is always individuals who are elected as representatives. We don't elect parties in NZ, even if people vote for party political reasons. All that parties can do is endorse a slate of candidates, and hope that those candidates will tow the line, because that's how representative democracy works. If people think they are voting for parties, then they are just mistaken about that. A system in which we voted for parties would be one where there was no list of individuals and the party moguls got to pick who would represent their party in parliament after the ballot. But that is not the system we have in New Zealand, because we always elect individuals. Some people vote for individuals for party reasons, but that does not change the fact that it is individuals that are elected.

There's no more reason to have waka jumping rules for list MPs than for electorate MPs, because the latter are usually elected as party members as well. 

In the end, those who propose a waka jumping rule are trying to recall MPs who break promises. But part of representative democracy is that MPs are free to break promises, and our leverage is to vote for someone else at the next ballot. Being able to recall MPs willy nilly is getting close to direct democracy which is in my view less preferable than a tyranny.

by Richard on May 09, 2014
Richard

Lee,

You are quite right that effect of the party vote is that it is a vote for the people on the list. But that is not what we are told it is "for"; it's called the "party vote" rather than the "list vote".

There's no more reason to have waka jumping rules for list MPs than for electorate MPs, because the latter are usually elected as party members as well.

But it would be quite reasonable to have concerns if, say, the member for Epsom, suddenly decided he longer wanted to represent the Epsom electorate and instead was claiming to represent Tauranga.

by Simon Connell on May 09, 2014
Simon Connell

On balance, I agree this contract is unenforceable but there are a couple of elements to the issue that I think might be worth exploring further.

First, I wonder exactly what the significance of the waka-hopping legislation is in all of this. Arguably, the fact that we had such an Act is relevant for determining exactly what fundamental constitutional rights might be in play here. That is, if Parliament has previously legislated that a party can use its own internal rules to expel an MP with the consequence of kicking that MP out of Parliament, that MP didn't really have a fundamental right to be there. But what do we make of the fact that the law is now expired? We could argue that it means an MP's right to remain regardless of party memberships is effectively re-instated, and can only be abrogated by more legislation (I think this is your view, and there are good reasons for thinking this sort of thing should be for Parliament only). Or, we could argue that the fact that that right was removed for a time is effectively a legislative acknowledgement that this isn't an absolute right, and conclude that it's OK for individual parties to take on waka-hopping rules for themselves. That is, there's nothing constitutionally wrong with parties imposing voluntarily on themselves a rule (or variation of a rule) that Parliament once made compulsory for everyone. Of course, it might be a stretch to extend this argument to the "quit in 3 days or $300k" rule in question here.

Second, Winston Peters was talking up the importance of proportionality. It's possible to frame this issue as a conflict between the principle of proportionality and the principle that an MP should be able to fulfil their function as an MP unfettered. There's almost certainly a better way to express the second principle here and it's oversimplistic to suggest that proportionality clearly is on the side of Peters. But two things we care about in our democracy do seem to have some kind of conflict here. I find it much more difficult explaining Peters v Collinge in similar terms. That case involved a conflict between the principle that citizens have a right to stand for Parliament and ... I'm not entirely sure what. Freedom of contract perhaps? I can't really think of a principled argument for National preventing Peters from standing in Tauranga where the principle seems to be a democratic one.

by Lee Churchman on May 09, 2014
Lee Churchman

You are quite right that effect of the party vote is that it is a vote for the people on the list. But that is not what we are told it is "for"; it's called the "party vote" rather than the "list vote".

We can call it what we like, but that doesn't change what it actually is (a bit like the Democratic Peoples' Republic of Korea or the Korean Workers' Party). A genuine "party vote" would look quite different.

by Richard on May 09, 2014
Richard

Lee,

So, your argument is that it is unreasonable to read what the NZ electoral commission says is a "party vote" as a party vote, because of the doublespeak of countries like North Korea? That seems a bit desperate.

Also, if we are voting for lists, what do think happens when a list MP resigns and the next highest ranked candidate on the relevant party list is no longer a member of the relveant party?

by Rich on May 09, 2014
Rich

what do think happens when a list MP resigns and the next highest ranked candidate on the relevant party list is no longer a member of the relveant party?

Unless the party can persuade the list candidate otherwise, they still get elected.

 

 

by Richard on May 09, 2014
Richard

Rich:

Unless the party can persuade the list candidate otherwise, they still get elected.

You'd be wrong. List vacancies are filled by the next living, willing, remaining party member on the list.

http://www.legislation.govt.nz/act/public/1993/0087/latest/DLM309474.html

 

by Lee Churchman on May 09, 2014
Lee Churchman

So, your argument is that it is unreasonable to read what the NZ electoral commission says is a "party vote" as a party vote, because of the doublespeak of countries like North Korea? That seems a bit desperate.

No. My point is that calling something by a name does not necessarily indicate that the thing shares the nature that the name suggests. Case in point, the DPRK is not a democratic country, nor is our "party vote" a vote for an actual party.

When you vote for an electorate candidate selected by the Labour Party that is in no relevant way different from voting for the list of candidates selected for by the Labour Party. In both cases you are voting for individual candidates selected by the Labour Party. The only difference is that one is voted for as a single individual and the other as a list of people. The sense in which you are voting for the Labour Party is the same in both cases: you are voting for candidates selected by the Labour Party, not the Party itself. For this reason, there is no more legitimacy in demanding that a list member remain a member of a party than there is in demanding that an electorate member so remain.

If people don't look at the list of candidates and judge who is likely to get in and their views (i.e. know what their "party vote" counts for), then that's just like people voting for an electorate candidate without taking the time to understand their political views. 

Also, if we are voting for lists, what do think happens when a list MP resigns and the next highest ranked candidate on the relevant party list is no longer a member of the relevant party?

That's just the way the rule works. You understand when you take account of who is on the list that people may disqualify themselves from it for various reasons. What matters is that there is nobody who is not on the list of candidates you voted for who can get in as a replacement (see section 6 that explicitly prohibits filling a vacancy if there are no list members available to do so). The fact that people must forgo eligibility when they leave the party when not in parliament does not logically entail that they must forgo eligibility when they are in parliament. The rights of candidates and the rights of MPs are not obviously the same. 

by J. Newman on May 09, 2014
J. Newman

I think that whipping out to be plenty enough to keep MPs in line. We don't need rules of law beyond that. If MPs are prepared to buck the whip, there are very serious reasons for them doing so:

1. They are behaving madly and inappropriately. They will not be re-elected to parliament. If they are ineluctably mad, there is a committee of parliament which handles this, the privileges committee, I believe it is called.

2. They are behaving sensibly* and appropriately. They will be re-elected to parliament.

These are things that they (and voters) weigh up.

Remember, there is nothing sacrosanct about propotionality, such that it must remain for the duration of the parliament. It is an election-day mechanism that is fair between the parties. Beyond election day, proportionality is likely to shift only slightly, but there is nothing that says it cannot change radically.

Likely, these kind of MPs are making parliament MORE representative by 'escaping the whip', that is, they following (maybe even leading) patterns of social change which occur from time to time during a parliamentary term.

And into the bargain, we get extra colour in the form of new and interesting parties. 

Luck to them, I say. Because i really struggle to see what is so bad about that, or how that is to the general voting public's disadvantage.

Or to the detriment of stability: if a government loses its majority, it has the option it always had, of going to the polls early.

Much as I love parties that are well established, with a wealth of resources and experience behind them, such as New Zeland First, I'm not out for what is in their best interests alone, but the interests of the wider society and democracy.

*meaning, they are possibly Peter Dunne.

by Rich on May 09, 2014
Rich

Richard: I stand corrected. So a party that wanted to adjust their list post election could expel the person(s) in the way - possibly before the departing member died or resigned?

by Richard on May 09, 2014
Richard

Lee,

I still fail to see why it is not reasonable for people to have an expectation that what is called a "party vote" is a party vote. I get that it is perhaps not in fact, and that it is difficult to write a rule that makes it so --- but it is not unreasonable to think it worthwhile to try.

Your argument that a party vote for, say, the Labour party is a positive vote for everyone on the Labour list, and not instead a vote for the Labour party, is difficult to believe. You have no idea, and there is no way of knowing, what everyone was thinking when they made their vote. All that is known is the number of people that party voted Labour (or whomever). Why they did that is unknown. Sure, some people might have looked at the list, and decided that they supported (some or all of) the list candidates. Other people might, say, have looked at the policies of the Labour party, and decided that they supported those; and been entirely agnostic about who the list candidates were. Other people may have party voted Labour because they liked the letter "L". And there are many other possibilities. People don't have to have voted for the reasons that you want, or for the reasons that most closely follow the actual effect of their vote. But it does seem reasonable (even if perhaps naive) for people to consider that a "party vote" does mean that.

Key et al., have, for example, attempted to make the argument that in the previous election all the party votes National received were actually positive votes for all National policies, especially Asset Sales. Which is, of course, unknowable, and unlikely. Your argument just seems to be a variation on Key's.

 

by J. Newman on May 10, 2014
J. Newman

You have no idea, and there is no way of knowing, what everyone was thinking when they made their vote. 

Exactly!

We know for a fact that a huge block of voters voted for John Key and not the National Party, for instance. A party is the sum of its people and its policies and its history...the party itself in its strictest legal sense is a very small politburo and a constitutional document or two. Who ever votes for that?

What if (similar to what happened in Queensland a few years back during the heights of Pauline Hansen) a Chinese candidate caused a big turnout for, say the National Party, and the National Party went into coalition with, for argument's sake, a rather anti-asian New Zealand First party. Would that candidate (without whom both parties would be in opposition, since the Nat/NZF coalition has a majority of one) be within her rights to switch allegience to the other side of parliament, and bring the defeat of that coalition? 

The party needs to make a choice and stick by it - go for the loyal and dull on their list, or the colourful, interesting and vote-winning. It cannot have its cake and eat it. These are real people serving real constituencies. There is not one big identical Labour constituency and there is not one big identical National consituency. These are broad churches made out of smaller constituencies and interests. And thank goodness for that!

A proportion of the voter turnout for a party's list will come from a collection if constituencies. These constituencies and their leaders (who may not actually necessarily be party leaders) will know this, and are entitled to flex their muscles.

If a party constructs its list carefully, giving the right proportionality to all of its factions, then a split will be, in a sense, truly propotional! If not, well, they will need to be more careful next time, won't they?

You make another interesting point - you are correct in your critique of Key - but I would add that you cannot vote directly for a party any more than you can vote directly for a set of policies. It is the people! He tangata!  

 

by J. Newman on May 10, 2014
J. Newman

So a party that wanted to adjust their list post election could expel the person(s) in the way - possibly before the departing member died or resigned?

This amendment was made in the wake of the Alamein Kopu (1998) defection, as the parties couldn't make an anti-defection law stick then either, so it was (from memory) a kind of compromise.

I don't like this either, it is an inconsistency.

The folk on the lower reaches of the list are out there in the real world, and when they come into parliament they should be able to 'send a message to Wellington' (to quote Shane Adern) and even if they are now in a bright, shiny new party!

This crude law was made to block a few NZ First MPs from coming in who would have threatened the deeply unpopular coalition's majority. So let's get this straight... people ACTUALLY serving the interests of their voters (the NZ first voters who almost unanimously despised the coalition) were blocked from doing so. Nice one!!

 

by J. Newman on May 10, 2014
J. Newman

A footnote on the 1999 election:

1. Alamein Kopu who had (bizarrely) defected from Jim Anderton's alliance to boster Jenny Shipley's majority resoundingly lost her seat. She was (surprise!) placed nowhere on the Alliance list for that election, and the new party she set up promptly disappeared - never to be seen again. 

2. The Shipley government was flushed away - it was seen as a cobbled, scarecrow affair, not least of all because Ms. Kopu was part of it, as well as Tau Henare's faction from New Zealand First, Mauri Pacific.

But good on all these politicians for doing what they thought was right, and good on New Zealand voters for passing their final, not-at-all unpredictable verdict.

A very interesting and somewhat wild parliament that one, but nobody can really claim the government of Ms. Shipley was unstable - it commanded a majority to the end. I really think we got the chance to clean parliament up as a result, and see who was who, and democracy lost nothing from the experience.

 

by Lee Churchman on May 10, 2014
Lee Churchman

Your argument that a party vote for, say, the Labour party is a positive vote for everyone on the Labour list, and not instead a vote for the Labour party, is difficult to believe

It's not difficult to believe, because that is what it actually is. Having a false belief doesn't change the facts. If it were a genuine party vote, then you would simply tick a box titled "Labour", there would be no list, and the Labour Party would then get to decide who filled the seats. Were there such a system, waka hopping laws would be fine. We don't have that system: we have a system in which everyone who is elected to parliament has to be a named candidate on a ballot. We don't elect parties: we elect people, and once those people are elected, the political parties has as much control over them as the rest of us, which is to say nothing other than being able to get rid of them at the next election.

We have a representative democracy. We elect people to seats, not parties. Once a person has been duly elected, we cannot remove them unless they break certain laws. We certainly cannot remove them for purely political reasons.  

Look, if you don't want to have a representative democracy, then that's fine. But that's what we have right now.

Nobody thinks that electorate MPs should be removed from parliament because they jump ship. The reason why it's wrong to do so is that they were duly elected by putting their name up before the voters (whatever those voters thought and whether those voters voted for them as party members or as individuals). But list MPs have done exactly the same thing, and although many people see this as a vote for a party, it is in fact a vote for a slate of candidates selected by that party. Nothing prevents someone voting for a party list because they like the slate of candidates rather than the party, and hope that the candidates once elected will go against the wishes of the party (as has happened before in NZ, such as 1984). 

What you need to do is provide a sufficient reason for treating electorate candidates differently than list candidates. The intention of voters won't do because it isn't the case that all voters, or even a majority of them, have the same intentions. People vote for candidates for all sorts of reasons. Our system leaves that up to the voters: we just care about who gets the votes, not why they do.

by Lee Churchman on May 10, 2014
Lee Churchman

Think about it this way, Richard. To whom are you actually giving political power when you make a list vote?

Is it the the party or some of the actual people on the list? Who gets to vote in parliament? The party or some of the actual people on the list?

by J. Newman on May 10, 2014
J. Newman

So far as the electoral office is concerned, a 'party' and party registration is a technical requirement of a legal form that enables the electoral office and the general public to be convinced that the people placed on that list have a right to claim they represent that party (ie, the connection is confirmed). A party for the purpose of that law does not need to be a properly constituted party, it just needs to fulfil certain criteria in support (signed up financial membership) and structure. It could be an election-day coalition of independents, it could be an election-day coalition of several parties (Mana-Internet springs to mind, who might be presenting a combined list, and who will almost definitely, after election day, split back into two caucuses of two parliamentary parties).

Parties continues to be held not to exist in parliament, as they always have been (which is distinguished from the modern practice of giving the party's name to a caucus grouping). In the full sense of the law, and the traditions of parliament, every member of parliament elected by whichever means is technically an independent MP. In earlier times this was actually true - parties were not the highly formalised creatures they are now, but only vague (and fluid) groupings, which had no apparatus outside of parliament. The principle has never changed. Anti-defection legislation has the effect of changing the principle, so we have a right to ask, and a responsibility to discuss, if it is what we want. It is frustrating that Winston Peters seems totally ignorant of this - I feel he actually does know better, but it is all about self interest. 

You do not, and never have (under either FPP or MMP) directly voted for a party to be in parliament. There is no real operational way for that to make sense. If there was, why would you need to bother having a group of list MPs in the caucus? Why not have a law that states that the party president of the day, or some other person designated by that party, will be entitled to come into parliament and cast 34 or 17 or 3 (or however many) votes that party won, as the difference between its proportional entitlement of seats, and the number of electorate seats won? Why bother having list MPs at all, and the associated expense (and farce of democracy)?

I like to look at voting for a list as voting for a bundle of people, philosophy and policies that a party puts forward for election on election day. (The electoral office makes that list fully available, and there is a handbook of these list candidates available at the polling booth).

Usually you would expect the people, the philosophy and the policy to remain in lockstep for the full three years.

But sometimes the environment puts them out of kilter, and an MP is forced to decide which road to take: the road of policy or philosophy (and even these can become disjointed) or the road of the party - its caucus leadership or extra-parliamentary leadership (these can become disjointed too). 

Examples would be Jim Anderton (1989, 2002), Neil Kirton (1997).

This is most likely to happen where two parties with fundamentally differing policies enter coalition, such as National and NZF, although it could happen in other circumstances too.

This choice is made by the MP (not the leader or the party apparatus, which is what Peters would seem to prefer) and the public then validates or rejects that decision in the election that follows.

Did they approve? Yes, if he or she holds a seat in the new parliament. Did they disapprove? Yes, if he or she is gone. It is that easy – and this holds whether it is a list or an electorate MP.

Lets all (including Mr Peters) get over this idea that list MPs are a class below electorate MPs, and that they are only there to serve the interests of the party, rather than the general parliament. Because if we accept firstly, that MPs serve the public, and secondly, that a party's interests and the public's interests diverge occasionally, we have to accept that MPs must not be shackled by political parties (and they need accept the whip when it is a win-win for the party and the MP in the sense that their philosophies align).

Winston Peters main theme is the allocation of money. Why not simply change the formula for this allocation, rather than decimating some of the fundamental principles of democracy that Peters himself has enjoyed in the past and made full use of? Maybe the funding formula can be based more on the election day result by party, instead of the current parliamentary proportions, or some splicing of the two.

At any rate, I agree with the author that his new party clause will be a toothless paper tiger. If Mr Peters doesn’t understand why, it might be time to return to law school.

by Richard on May 12, 2014
Richard

Lee,

Think about it this way, Richard. To whom are you actually giving political power when you make a list vote?

The people on the list, I know. I'm well aware this is the case. I've never claimed otherwise.

Nonetheless, it is called a "party vote". We are told that its purpose is to ensure that a party is represented proportionately in parliament. Hence it is reasonable, even if naive, for people to be concerned when list MPs cease to be party MPs. This doesn't mean that anything can be done about it; merely that it is reasonable to question it.

Anyway, there comes a point in a conversation when one fears one has become Pete George. That point seems to have been reached with me, so I don't think I have anything further to add.

 

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