The question and process for the 2011 referendum on MMP have been announced. It's all good.

I am aware that three posts in a week on electoral law matters may be bordering on overkill. But this last topic probably is the most important of the lot, so I want to say something about it.

I also can save a lot of time by referring you to Tim Watkin's earlier post on Simon Power's approach to the referendum process - I agree completely with what is said there. Although I still think the whole referendum is an unnecessary diversion costing us near $11 million, Power and his cabinet colleagues are to be commended for playing this issue with a completely straight bat. New Zealand's top order could learn a lesson here!

All that said, there are a few matters I'd like to comment on specifically. The first is the wording of question to be asked in 2011 - it's  virtual repeat of the question asked in 1992. I think there was no other option for the Government here, especially once the Chief Executive of the Electoral Commission (the only body that could credibly have written a different one) made it clear he had no interest in getting involved. Had the Government then tried to impose any "better" form of words, there would have been an almighty outcry that it was trying to rig the outcome.

The second matter is that cabinet has decided there will be no spending limit on those wishing to campaign for or against MMP, only a requirement that groups spending more than $12,000 register their existence with the Electoral Commission. This decision also was pretty much a fait accompli, given cabinet's contemporaneous decision on how the wider election advertising of "parallel campaigners"/"third parties" will be regulated. Any decision to impose spending limits for the campaign over the MMP referendum, but not to impose limits on individuals or groups wanting to participate in the broader election campaign, would have been anomalous to say the least.

However, the lack of a spending cap in relation to the referendum may matter a bit more because there is nothing to stop campaigners buying time on TV and radio to push their positions (as happened with the 1993 referendum - remember those anti-MMP ads with scary besuited men wearing paper bags on their heads?). By comparison, "parallel campaigners"/"third parties" are barred from running "election programmes" at any time, effectively stopping them from using the broadcast media as a method of campaigning for or against parties and candidates. Consequently, this most expensive (and effective) form of mass communication remains in play for those supporting or opposing MMP, and likely will be used, which will push spending up.

[Incidentally, buried away in the Minister of Justice's proposal paper to Cabinet (at para. 127) is a throw-away comment that the Minister considered and rejected having a $50,000 cap on spending (as applies to Citizens' Initiated Referenda) on the basis that it "is inappropriately low for a referendum on a significant constitutional issue." I'm sure those behind the effort to get a Citizens' Initiated Referendum on the question "Should Parliament be required to pass legislation that implements the majority result of a citizens initiated referendum where that result supports a law change?” would be very interested in this observation!]

I know there will be a great deal of angst as to whether this lack of a spending limit favours those campaigning against MMP (largely assumed to represent the interests of big business and the rich). My own view is that whilst it would be preferable to have some such limits, their absence simply underscores the need for those who wish to see MMP retained to start organising and acting now. After all, there is a fairly respectable argument that the big spending by Peter Shirtcliffe in 1993 actually tipped the issue in favour of MMP, by offending Kiwi's idea of fair play and triggering a "screw you" response.

Furthermore, Simon Power has handed the pro-MMP camp a pretty major advantage by including in the referendum legislation a guaranteed review of MMP if people vote to retain it at 2011 (but why only if they vote to retain it - wouldn't a vote in 2014 between an "improved MMP" and the most popular alternative still be the preferable option if voters indicate a desire to change in 2011?) Criticisms of how MMP is working presently can now be answered with an assurance that those flaws will be studied and remedied, so there is no need to throw out the baby with the bathwater (or other relevant cliche).

One last point to note on the referendum process. We actually won't know the final outcome of the vote until approximately two weeks after it is held. In order to avoid interfering with the quick count and announcement of the election result (as happened in 1999), only a sample of 10% of the referendum ballots will be counted on election night. This count probably will be enough to tell us the likely final result, unless the vote is very, very tight. But we won't know for sure until all the official parliamentary results are known - which conceivably could make for a couple of rather tense weeks!

But it probably won't. I'll go on record as saying that if the current National/Maori Party/ACT triumvirate can last until late 2011, then MMP will romp home. It's got the status quo advantage and it's all that voters under 35 have ever known. There's no marked desire to punish politicians, or reassert the electorate's authority over the political class, as existed in the early 1990s (and even then it only just created enough momentum for change). So unless we see a complete meltdown in MMP-era inter-party relationships - always possible, if unlikely - then I don't think we're in for any change.

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