The Labour-NZ First coalition deal proposes taking our electoral laws back to 2001-2005. I don't think thats a good place to revisit.

One of the more surprising matters included in the Labour-NZ First coalition agreement is their joint commitment to “Introduce and pass a ‘Waka Jumping’ Bill”. Such legislation effectively requires any MP who leaves her or his party, whether willingly or not, to also leave Parliament.

The consequence then depends on how the MP initially was elected. The Party simply can replace a list MP with the next person on its candidate list. If an electorate MP, a by-election must be held.

New Zealand actually had such an anti-party hopping law in place between 2001 and 2005, when it lapsed. The issue has remained a bugbear for NZ First since then, with it trying to install its own internal anti-party hopping rule by requiring any MP that leaves its caucus to pay the Party $300,000 in “damages”. But either it accepts that this rule would not ever be enforced by the courts, or else it thinks everyone else should also follow its view that an MP’s seat in Parliament really belongs to that MP’s party.

Isn’t that really the case under MMP, though? After all, list MPs only get elected through the party vote. And even electorate MPs actually owe their place in the House to their party’s endorsement, rather than to their own special personal qualities.

So, if an MP decides she or he doesn’t want to be in the party anymore, or if the party decides she or he has done something so bad as to warrant getting kicked out of it, then why should she or he get to stay in Parliament?

That’s a perfectly good moral question for such MPs to answer. But the problem with trying to use the law to enforce political morality on MPs is that it can lead to other negative consequences, as we saw in those four years when we had an anti-party hopping measure on the statute books.

Such a law seeks to freeze representation as apportioned at the last election, by saying that the reason an MP may have for wanting to leave (or the reason why an MP is forced to leave) his or her party is irrelevant and so the MP also must leave Parliament. Consequently, where you have a genuine, irreconcilable clash of ideology within a party, there is no way to resolve that split neatly by separating the party into new, clearly distinct political organisations - unless one or the other disaffected groups is prepared to walk out of Parliament altogether.

We saw the problem with freezing representation in this way in 2002, when the Alliance Party fractured into two over the issue of supporting the post-9/11 invasion of Afghanistan. Because neither grouping wanted to leave Parliament, they were forced to pretend they remained one united party in Parliament even as Jim Anderton set about creating his own new one outside of it.

The opposition’s reaction to this charade was then cited by Helen Clark as a reason for holding a snap election in 2002. So rather than ensuring parliamentary stability, the anti-party hopping law actually contributed to an early end to its term.

Second, the one occasion on which the original party hopping law was applied resulted in a court case that went all the way to the Supreme Court. It concluded that where an MP ceased to be a member of a party, that fact in and of itself justified the party leader having the MP removed from Parliament.

In other words, the Supreme Court collapsed the right of an MP to remain in Parliament into the right of a person to be a member of a particular party. If a party chooses to use its own internal rules to expel an MP from the party, that action thereby enables the party leader to get the MP kicked out of Parliament altogether.

If the MP has done something really bad, then fair enough. But note that this approach puts an awful lot of power into the hands of a party leader (assuming that she or he still has the backing of her or his party). And where there is power, then there is the temptation to use that power in ways bad as well as good.

Of course, a cynic might speculate that these dual effects – freezing representation in place and empowering the party leadership – are exactly what Labour and NZ First intend. What better way to deliver on their agreement to “provide stable and effective coalition government” than to make it virtually impossible for dissenting MPs to break from their present party commitments?

But using the law to try and quash internal party disagreement and ensure the governing arrangement lasts the full distance comes at a cost to our wider system of parliamentary democracy. We should be cautious before reintroducing such legislation back on to our statute books. 

Comments (20)

by Dennis Frank on October 25, 2017
Dennis Frank

I presume the relevant select committee will examine the proposed legislation thoroughly, exploring all the primary implications.  Doesn't this waka-jumping thing actually call into question the entire notion of representative democracy?

We now have a center-left government entering office tomorrow.  I support it.  It is in the common interests of the majority of voters of Aotearoa who rejected the Nat/ACT option at the election to have the new government operate as planned. The process of collaboration must ensure stability of the government.

Anyone who thinks it will be unstable ought to try sitting on a three-legged stool to see if they'll fall off.  Those of us who grew up with one as a standard piece of household furniture & know the stability from personal experience are now mostly in retirement.  Younger generations unfamiliar with the stability of the design will be more sceptical and expect instability.  The relevant precedent happened already to NZF so Winston is understandably launching a pre-emptive strike against repetition & Jacinda understandably agrees that allowing MPs to depart the government and remain in parliament is a recipe for instability that operates as a direct threat to her future as PM.

So this pits party loyalty against the notion of the autonomy of an MP.  If we use the antique 18th century frame of representative democracy, an MP only has an obligation to their electors.  If we use the later 19th century frame, an MP has dual obligations to electors and party.  Neither frame, to my knowledge, has been enshrined in law as compulsory (correct me if I'm wrong) so any MP is currently free to choose whether to act in accord with one frame or the other.  Such choice is conscience-driven.

Yet perhaps the Supreme Court decision did actually eliminate that choice.  If it did, why does Winston, a lawyer, see the need for the proposed legislation??

by Rich on October 25, 2017

It rather casts a light on Winston's faith in the loyalty of his caucus, doesn't it?

I wonder if all the NZF and Green MPs will actually support this one (I'm guessing that the agreements are that Labour will support NZF (and the Greens) proposals through all their stages but that the two support parties are under no such obligations to each other?).

And should this be passed and Shane Jones is persuaded by the opportunity to be Deputy PM in a National government (and persuades three other NZF MPs to join him), I'd expect ructions from the usual suspects at a government locking in its majority legislatively (which they are fully entitled to do, subject to a subjective view of propriety, like not incarcerating the opposition by bill of attainder).

by Kat on October 25, 2017

Waka Jumping is another name for defection, sometimes treated as treason and a punishable action usually concluded by hanging or firing squad. I believe it would be good to have some ground rules that MP's must give serious consideration. We already have Richard Prebble publicly inciting a coup détat since the election didn't go the way he wanted. And we know that money doesn't talk it swears.

by Alan Johnstone on October 26, 2017
Alan Johnstone

For me this fails the basic democratic sniff test.

Voters put these people there, the names were on the ballot papers and on published party lists. Only voters should be able to remove them. 

The concept that a simple majority in a party room can expel an MP from office doesn't sit well with me. Our terms are only 3 years long, the voters can deliver their verdict soon enough. 

by Andrew Geddis on October 26, 2017
Andrew Geddis

The concept that a simple majority in a party room can expel an MP from office doesn't sit well with me.

To be fair (because, well, I guess I should be), the previous legislation required that a party leader have the support of 2/3rds of her or his caucus before she or he could tell the Speaker to kick an MP out of the House.

by Ian MacKay on October 26, 2017
Ian MacKay

What if say 3 MPs deserted and joined National. National would then have a majority. Could they then take over or would there have to be a new election?

by Katharine Moody on October 27, 2017
Katharine Moody

I think this assumption is questionable: "And even electorate MPs actually owe their place in the House to their party’s endorsement, rather than to their own special personal qualities." when you consider that many people split their vote, and that is for many because they prefer the 'personal qualities' of the electorate candidate, regardless of that person's party affiliation.

Personally, I think the earlier law was a good one - if a candidate entered Parliament on the party list, the party replaces them; if an electorate MP, a by-election is held. It seems democratically just under our particular form of MMP to my mind. 

by Chuck Bird on October 27, 2017
Chuck Bird

There are two issues here.  The first is whether the proposed legislation is good and fair.  The second if one party or a group of parties with a small majority should be able make electoral law to benefit them.  If this coalition is able to get away this National when they get in could raise the threshold to 7 or 10%. 

If this goes to a Select Committee with public submissions there could be a call to put it to a binding referendum. 

by Dennis Frank on October 28, 2017
Dennis Frank

Well, it will inevitably be put through the select committee process, with public submissions.  A binding referendum is a good way to get a mandate for whatever design is produced by that process.  Then it's just up to public service lawyers to draft legislation that accurately implements the public mandate.

The historical track record of parliament producing legislation that, when applied, turns out to be not fit for purpose is well known.  Public servants often don't get it right (presumably due to their employment contract not requiring such a high performance standard).  However any systemic malfunction produced by the legislation can always be tweaked by subsequent governments.  Pragmatism should guide the operation of the principle. 

As traditional kiwi macho culture once put it, "she'll be right".  As long as cross-party consensus is reached at the design stage, I expect she will.  Particularly if the design isn't incompatible with the principle of natural justice - which is often referred to as fairness (`a fair go') and is also implied by the Green Charter principle of appropriate decision-making.

by Chuck Bird on October 28, 2017
Chuck Bird

Dennis, what do you mean by cross party support?  Does it include National?

by Dennis Frank on October 28, 2017
Dennis Frank

Yes, Chuck - if possible.  I believe that the National Party will benefit from having most voters reject them.  It will have to reconfigure itself to win back the center ground. A profound change of political culture will have to occur to enable them to achieve that. 

My advice to them is to have a go at collaborating in the select committee, so as to reach consensus with the other parties on a suitable referendum wording.  If they can prove that they have become sufficiently adept at consensus politics, the Greens will see that as evidence of a transformation of the political culture of the National Party.  There's a short step from there to exploring the basis for a Greens/National coalition design in future.  The Nats already performed an internal cultural transform when they ditched closet-fascism.  They can do it again.

You may feel that the Nats are way too thick to even conceive the possibility of becoming politically sophisticated.  I agree their historical track record creates that impression.  However, that analysis applies equally to Labour and they've just demonstrated that they can make the shift when disaster looms. 

A similar disaster won't face National unless/until they get over their `we're going to be a strong opposition' stance, and face the fact that the shift in public opinion will embed inexorably the longer the new government demonstrates competence.  Loss of their coalition partners is the real disaster the Nats must now finesse somehow.  I believe their unfamiliar marginal status will have a profound psychological impact - that sense of entitlement they've had all their lives will be threatened.  The question is whether they react fast and get real, or not.  Ditching climate-change denial would signal a good start!

by Chuck Bird on October 28, 2017
Chuck Bird

Dennis, the "if possible" qualification appears to me that you approve of a coalition of just over 50% of the vote making changes to electorial law.

There has also been specualtion that lowering the threashold to 4% or even 3% could be another change by this coalition unilaterly.  Would you also support that or would that be a step too far?

by MJ on October 28, 2017

Aside from the madness of '99 and the Alliance break down, has there ever been a case of a list MP crossing the floor, outside of conscience votes?

Should MPs who owe their seat to the party vote be able to do that?

I guess there is a difference between the examples you cite of a movement split with irrevocable differences, much like Channel Z and modern rock after Fred Durst, and a rebel MP, like Peters was. 



by Dennis Frank on October 28, 2017
Dennis Frank

Well, Chuck, if you check prior changes to electoral law in this country, I suspect you'll find they were made by governments elected with less than 50% of the total who voted.  Andrew may have the historical facts on that handy.

Yes, I see no problem with including smaller parties in parliament.  If the threshold had been 2% this time, both Maori Party and Opportunists would have got in.  Okay, the negotiations process would have been messier & longer (a definite negative) but the principle of diversity enriching the whole applies.  Just as in economics, freedom of choice ought not to be denied or too restricted.

by Dennis Frank on October 28, 2017
Dennis Frank

Okay, I did a quick check online re the Electoral Act of 1956.  In our 1954 election National got 44.3% & Labour got 44.1% according to the Wikipedia page that gives the results.  So this example seems sufficient to disprove the notion that a government requires a decisive mandate to reform our electoral law.

by Chuck Bird on October 29, 2017
Chuck Bird

Dennis, you are going back over 60 years so your argument is not relevant.  Times have changed a lot.  The issue is should the party or parties in power have the right to make significant changes to electoral law to stay in power.

You seem to think it okay if the left do it.  Would it be okay if National and coalition partners they may need raised the threshold to 10%?

by Dennis Frank on October 29, 2017
Dennis Frank

Ha, it sure is okay by me if a National government legislates to raise the threshold to 10%, because that would prove to a huge swathe of the voters that they really are anti-democratic.  The likely result of such legislation would be that the National Party permanently discredits itself in the court of public opinion.

As regards whether electoral law changes over 60 years ago are relevant or not,  perhaps Andrew can inform us.  Often legal cases are decided on the basis of a precedent more than a century old, right? 

So tell us, Chuck, which time frame do you believe is appropriate to establish relevance?  Twenty years, thirty?  Is there any objective criterion folks can agree is reasonable - or are you merely being subjective?

by Chuck Bird on October 29, 2017
Chuck Bird

About 20 years would make sense as that is just after MMP started. 

I am struggling follow your logic.  You think if National when in power changes the threshold to give them an advantage and that is undemocratic yet if the left do the same it is okay.  This sounds very much like the ends justify the means as long as the left do it.  

by Dennis Frank on October 30, 2017
Dennis Frank

Well, as far as I know there's been no changes in our electoral law in the past 20 years to compare with, so I see no sense in your suggestion.  No I don't think either National or the left ought to be able to change the threshold to give themselves an advantage.  If the threshold had been 2% at the recent election (TOP & Maori Party in parliament now) then National would have had just as much opportunity to form a government as Labour!  I suggest you stop thinking of things in the old binary left/right frame.  A third of the electorate in most western countries now self-identifies with neither, as polls have been demonstrating since the nineties.  Best to see the left & right as the glove puppets of the establishment as the vanguard of my generation did in the late '60s.  No reason why younger generations can't be just as perceptive - they just have to develop sufficient spine to resist being brainwashed.

by Chuck Bird on October 30, 2017
Chuck Bird

Dennis, I am glad to see you agree that no party or group of parties should be able to change electorial law to benefit themselves at the next election.  I see in the media that Prebble suggest Labour and National agreeing to go back to first past the post.  This would equally be wrong.

I can see the Conservative Party doing a deal with National as NZF has gone back on most of their consevative policies.

National may feel that the result is legal but wrong.  They have every right to put another law change to the public ideally by a binding referendum.  Alternatively, they could put such changes on their manifesto and make them very clear.

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