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Legal Beagle by Graeme Edgeler


Asking the next question

One thing highly annoying to armchair journalists like myself is when the 'obvious' next question isn't asked - where an interviewer has a subject on the ropes, and doesn't know some detail or argument, or can't see a logical consequence of a position, so fails to ask an important question.

With a large number of news articles and blog posts on ACT's recent 'Maori radicals' advertisement, and its general approach to the election campaign, in which the next question doesn't seem to have been asked, I would appreciate if the next journalist interviewing Don Brash would ask something akin to the following:

Dr Brash:

  • if the ACT Party you lead is in Parliament after the general election, could it enter into a confidence and supply agreement with a Government that included Maori Party ministers, was in coalition with the Maori Party, or had an arrangement for support on Confidence and supply with the Maori Party?
  • do you and the ACT Party have confidence in the current government, which includes ministers from the Maori Party? Why?

Feel free to add your own.


Referendum Fact Check #2: Think Tank

John Tamihere's Think Tank panel show (TV3 Saturdays 11:30am) looked at the voting system referendum this week, with David Slack, Matt McCarten and political science student Jonathan Williams. It was an interesting and informative discussion, but as I sat watching, every so often I'd hear myself saying "well that's not true" or "no they don't", so a post seemed appropriate.

More famous/better resourced Fact Checkers like FactCheck and PolitiFact check factual claims in the news media, and by politicians in interviews and during debates. Politifact ranks claims from true through mostly true, half true, barely true, false and pants on fire. I don't really have the time to tell you when people get things right, so I shouldn't be seen as being too critical of those I'm fact-checking (unless they really deserve it). I didn't agree with everything that was said, but the discussion was useful, and the particular focus on the things that could be done to improve MMP may provide a useful starting point for that important discussion.

But there were a few things that bugged me, and even one thing I asked "is that true?" to check and found out it was. Here goes:

Matt McCarten: who would have though that when they put the one seat in that that started to determine the make-up of the government? You know, so what hapens is that the major parties, in this case it was National with ACT does a deal with them in Epsom, you know that's actually the National Party candidate you vote for ... Rodney Hide comes in you know they were all going at 1% in the polls and suddenly hey shot up oh look we're gonna win a seat so it's worh something get 5 MPs and of course Winston who got more votes got nothing.

The Greens almost also in 99. they got the nod about Corromandel and they got in because the previous election as they almost got under 5% and I remember that it was Nándor and Sue Bradford are waiting on TV that night about whether the Greens were going to get into Parliament or not.

1. Rodney Hide was not handed a seat, which he looked like winning. He took Epsom off an incumbent National MP, and the one public poll suggested he wasn't going to win it, so ACT support tanked, and they dropped to two MPs. ACT did get five MPs at the following election, but it wasn't sudden.

2. The Green Party did not contest the 1996 election. They were part of the Alliance, which got over 10%. Nándor Tánczos did contest the 1996 election, but as number 5 on the list of the Aotearoa Legalise Cannabis Party.

David Slack: On the 'where does the wasted vote go' question ... there's a technical answer first that's how you recalculate it that's probably less interesting to people except for knowing that the short answer is if you didn't get 5% or he didn't get a seat, it's gone.

There isn't a technical answer. David's short answer is also the long answer. The votes of parties that don't pass one of the two thresholds are simply ignored in calculating the final make-up of parliament.

DS: Talking about the list, there'd be what? Half a million people voted Labour in the last election, I don't think you get more than a thousand of them would be able to tell you who was on the list under number 10.

Labour got just under 800,000 votes at the last election.

The last time Labour got half a million votes or less was 1966 :-)

Jonathan Williams: I just wonder how important this is. Do people really care who number 35 on the Labour list. Does it matter that Chris Finlayson was brave enough to run in Annette King's electorate which is solidly Labour. He got thrashed. He lost, but he's still a good MP. He's still our Attorney-General. Should he not be in Parliament because he ran?

Did Chris Finlayson really get thrashed? Well, yes. Worth checking, but Annette King got nearly twice the vote of Chris Finlayson. I am not usually a fan of hyperbole but I'm not sure it counts as hyperbole when it's true...

MM: When the Royal Commission first did MMP they came with the German model which was the 4% and that was a threshold about whether you had seats or not. The Parliamentarians at that stage - because there was Winston Peters, Jim Anderton and Dunne - all were sitting there as very small parties with their own seats, they only had their seats so deals were done in the back room: if I keep my seat I get all my votes but we don't want anyone else in. And so it was deliberately the deal was done in the back room that went against the Royal Commission's thing to suit those MPs. And so they lifted the threshold to five and then made sure they got all their votes if they won their seats.

1. The Royal Commission on the Electoral System did recommend a 4% threshold. But it also recommended the single seat exception.

2. Also, Germany has a 5% threshold. And they also have an exception if the party gets wins three electorates (the Bundestag has 299 electorates).

3. In 1993, Peter Dunne was still in the Labour Party. He didn't leave until after the 1993 referendum had adopted MMP. Jim Anderton would lead a party that would get more than 18% at the 1993 election; I'm not sure a four or five per cent threshold was a particular concern. I'm led to believe there was a deal between Labour and National, but I suspect we Murray McCully and Pete Hodgson are more to blame than Dunne, Anderton and Peters.

John Tamihere: The Royal Commission also ruled that to do away with the Maori seats the best thing to do is to drop the threshold to three per cent. Bolger determined not to do that, It was a National Government that determined not to do that. Why was that do you think?

JW: I think firstly a good thing about what we're doing with this referendum is that Simon Power has given the power to the Electoral Commission not to politicians to determine what the changes should be. So we're not going to have politicians making changes in their own best interests. It'll theoretically be in our collective interest.

1. The Royal Commission did not recommend dropping the threshold to 3% if the Maori seats were abolished, Rather, it recommended that "Parties representing Maori interests" should not have any threshold. They also suggested (but didn't recommend) that this waiver might also be extended to other minority ethnicities, if that was thought desirable.

2. If Keep MMP votes wins the first question, the Electoral Commission will conduct a review of MMP. It will make recommendations, but its recommendations will not determine what the changes should be, any more than the Royal Commission's recommendations determined what MMP originally looked like.

After the Electoral Commission has made recommendations to the Minister of Justice, Cabinet will consider and approve draft legislation which will then go to Parliament to enact or reject. Just as in 1992/93, MPs will be able to make changes in their own interests or for any other reason.

DS: The threshold is problematic, and I think we need to change it. The way I see it working is you say if you're going to have qualification on the basis of just winning a seat but not making the threshold, I think you should make it at least two seats or lose it all together so that you just have a threshold, but it's not a seat. That means that your single MP getting elected: the like of Jim Anderton or Peter Dunne - who actually enable a first past the post outcome by just bolstering up one of the big parties - is actually getting in the way of proportional representation.

Single MPs from minor parties do not get in the way of proportional representation. In no election has Jim Anderton or Peter Dunne caused an overhang. Their parties have always earned enough party votes to get earn that first seat for the party. Had their seats instead been won by the parties they supported, proportionality would have been worse.

While there are arguments against the single seat exception, that it makes Parliament more disproportionate is not one of them. The single seat exception operates to ensure that voters who support small parties are proportionately represented.

MM: I agree, I think you should just get rid of - if you win a seat electorally it's what you win, but to actually get somehow extra MPs which another party who gets the same amount of votes as you doesn't get just seems like it is a gerrymander it was set up to be one. It was deliberate and it should go. So I think that it should be irrelevant. You win the electorate, you win the electorate  but the percentages of the threshold - if there's one - and in Israel of course there's no threshold, you just kind of get the votes you get. But if there's a threshold it should be a reasonable one but it should apply to everybody equally.

The Israeli Knesset does not have "no threshold". It has never had "no threshold". Until 1982 it had a 1% threshold. From 1982 to 1993 it was 1.5%, and the threshold is now 2%.

DS: Personally, I would prefer that you still have a threshold so you don't have a lot of small parties. I think at 4% perhaps or 5%, but it means that you've got a better chance of longevity of minor parties. So that you don't have them, the problem you got at the moment is that a party kinda like a bee gets its sting in but it dies. You've seen it again an again. The party goes into coalition and then its voters abandon them because they feel like they've been betrayed.

This isn't really a fact check. I just don't think this argument has anything going for it. The harder it is for parties to get into or stay in Parliament, the lower the longevity of minor parties will be. With a much lower threshold, the Alliance (1.27% when it went out in 2002) might still be there. Bloggers on the right are always looking at polls and hoping the Green Party will fall below the 5% threshold, with a lower threshold, this wouldn't matter, but three years out of Parliament could make it difficult to come back.

JW: I do think we should look at the threshold though because the threshold was originally introduced in Germany to keep the Nazi party out, but we don't have extreme racist or religious parties ... I don't think we have really dangerous parties coming in if we had a two and a half or a three per cent threshold, it would mean there'd be a 100,000 people in the last elections whose votes counted for nothing would now have representation and we'd have a more democratic Parliament.

I particularly like this because it talks about a threshold option other than 4% or 5% which is all I've heard any member of Parliament or media commentator talk about. But I have to dispute the statement about Germany. After WWII, the Nazi Party was banned in Germany, so the threshold cannot have been introduced to keep them out. The pre-World War II electoral system in Germany was a pure proportional system (i.e. list vote only) with no threshold. It led to an incredibly fractured Parliament. Avoiding this was likely the major reason for the threshold. Making it difficult for extremist parties will also have been important, but it was not about the Nazis.

JW: Under all of the other systems we'd have majority one-party governments...

While first past the post, preferential vote and supplementary member will usually result in majority one-party governments, the single transferable vote system is considered a proportional system, and is very unlikely to result in majority one-party governments. STV will usually lead to coalition governments, or minority governments with support arrangements with other parties.


Referendum Fact Check #1

Welcome to my first (official) fact check of the 2011 Referendum on the Voting System.

In an earlier comment, I mentioned I’d intended to fact check the referendum on the voting system. I’ve already done something of a fact check on one of the Electoral Commission’s own advertisements, and another on a laughable piece in the NBR, but with the “Vote for Change” lobby group publicly commencing its intentions, and Morning Report running three pieces on the referendum, including the first debate between the Campaign for MMP and the Vote for Change lobby groups, today seems like a good time for the Referendum Fact Check to officially begin.

The debate between Jordan Williams of Vote for Change, and Sandra Grey of the Campaign for MMP was pretty good. Some of the arguments might have weak points, or obvious rejoinders, or strong counter-arguments against them, but they’re opinions, about which reasonable people may differ.

For the most part the Referendum Fact Check won’t be looking at those (though I’ll likely have things to say elsewhere). Fact Check is primarily about two things: (1) statements that are just wrong, and (2) material which leave out potentially important information in a way that leaves voters uninformed, if not misinformed.

And today’s first debate (.mp3) between the Campaign for MMP and the Vote for Change only had one major error. And it wasn’t from one of the participants, but from the introduction by the Radio New Zealand host, who said:

“voters will first be asked if they want to keep the mixed member proportional system or change to another method: those who favour a change will then be asked which system they prefer: first past the post, supplementary member, preferential voting and single transferable vote.”

This was an error made multiple times on Radio New Zealand this morning with reporter Chris Bramwell also noting (.mp3):

“In just five months a referendum on MMP will be held alongside this year’s general election. It will first ask whether voters want to retain MMP or change to another system. Then it will give four other voting systems to choose from if voters opt for change…”

 and later:

“The four other systems that voters can choose between if the opt for change are first past the post, supplementary member, preferential voting, and single transferable vote.”

This is wrong.

Voting in the second question is not limited to those who vote for change in the first question.

Voters who vote to keep MMP can also choose from the options in the second question. This is pretty fundamental, and I'm disappointed Morning Report made the mistake so many times.

Chris Bramwell's story also carried the following quote from Green Party co-leader Russel Norman:

“The way SM works is that you have a first past the post system for say a hundred MPs and then the 20 remaining MPs are elected proportionally. So it means that a party with 10% of the support of the country could end up with two seats out of 120 so I don’t call that a proportional or even a democratic system.”

Not Bramwell's fault, but Russel Norman should know better. It’s technically accurate, but is unnecessarily misleading. This sort of supposition about what Supplementary Member might look like isn’t needed. Parliament has already declared that if we adopt Supplementary Member as our voting system, it will have 90 electorate MPs and 30 list MPs (which is incidentally, what the Royal Commission on the Electoral System recommended if we went with Supplementary Member). The point about SM not being proportional is valid, but there is no reason to use misleading statements to support it.

But on to the debate proper. There first bit of missing context concerned the Maori seats:

Morning Report: "You mentioned as well the Maori seats. How do you see that fitting into any change if there is indeed one?"

Jordan Williams: “Well, the Royal Commission recommended that under MMP the Maori seats were no longer needed . I think that because of the way that the Maori seats are worked out it’s not one of our vote for changes primary objectives. It’s not a question that’s in front of us and to be fair I can’t represent what exactly our membership think.”

Sandra Grey: “And at this stage of course the Government has actually said this referendum will not look at the number of politicians, the number of MPs in Parliament nor will it look at the Maori seats. So actually those issues have been taken off the table for us to talk about.”

The statements are all true, but important facts are left out. We're not being asked whether to abolish separate Maori seats, and the referendum can’t see the Maori seats disappear, but a change from MMP would change the Maori seats.

Under MMP there are currently 7 Maori seats. A change to first past the post, or preferential voting, or single transfer vote systems would see an increase in the number of Maori seats to at least 12, and probably 13 seats. A change to the supplementary member system would see an increase at least 9 and possibly 10 Maori seats. The issue of Maori representation will be important for many voters, even if they're not directly in issue. The main campaigners, and the reporters who are interviewing them should be able to let people know about this when it comes up.

The second bit of some contention comes around the argument over the best course of action for people who support MMP, but would like to see changes made to it:

Jordan Williams: “To have that debate New Zealanders must vote for change. If New Zealanders vote to keep MMP at this election we don’t have that debate over the next three years.

Sandra Grey: “We do have that debate because the Government has said if we vote to keep MMP there will be an independent review run by the Electoral Commission and all New Zealanders will be …"

JW: “Let the politicians decide the Changes…”

SG: “No.”

JW: “That’s like asking the turkey to organise Christmas.”

SG: “They’ve said an Electoral Commission review will be held…”

When two people are making largely contradictory claims, it may be useful to have the full context laid out:

If the vote on the first question is to keep MMP, then there will be a review of MMP conducted by the Electoral Commission, which will likely have a process for public input, after which it will make recommendations for change over a number of areas: the 5% threshold, the single seat exemption to the threshold, whether there should be open lists, whether the number of list MPs should change, whether MPs who lose their electorates should be able to come back in on the list and others.

The Government would decide whether to adopt any of the recommendations, or whether to propose different ones. Any changes the government wants would be included in a bill that would be introduced in Parliament and then go through the ordinary processes, with select committee hearings, etc. It would be up to Parliament what changes, if any, to make to MMP. If there was some contention, Parliament might decide to send some proposed changes to a referendum, or might not.

If the vote on the first question is the change to another voting system, this review of MMP will not happen. The Labour party and others at the Select Committee tried to argue that it should, but the Government rejected this.

The Government will determine what it wants the alternative voting system to look like, and will propose a bill to Parliament that would implement it if carried by a majority in a binding referendum. This bill would go through the ordinary parliamentary process with select committee hearings etc. It would be up to Parliament what the final version of the alternative voting system would look like. (None of this is actually not required by the current legislation, but both National and Labour and other minor parties have said they will respect the decision of voters at the referendum this year.)

It is possible that the new Parliament elected at the November general election may decide to hold a review of MMP even if the change vote wins so that the possible 2014 referendum will be between an alternative voting system, and a different form of MMP to the one we currently have, but this is not currently the plan.

And a final piece from the other Morning Report article on the voting referendum. It's not about the referendum itself, but it's an example of factual argument that doesn't quite stack up. In Julian Robin’s piece introducing us to the Vote for Change, spokesman Jordan Williams had the following to say:

“Let’s look at Winston Peters. We’ve had five elections under MMP under two of those, possibly this election a third time it’s been Winston Peters that has chosen who is the Prime Minister.”

Jordan is right for 1996, but that’s it.

The votes in 1999 and 2002 were clear Labour wins, Winston couldn’t have gone with National to form a government even if he’d wanted. I assume Jordan is talking about 2005, but it didn’t happen there either: Winston didn’t have an option between Helen Clark and Don Brash in 2005. National + ACT + United Future + New Zealand First would not have been a majority, they’d also have needed the Jim Anderton or the Maori Party or the Greens to help: just because Winston was in government with Labour doesn’t mean he determined who it was.

Let me know what you all think. I’m particularly hopeful that mistakes like that made by Morning Report this morning won’t confuse voters about the referendum process. I probably won’t be able to review every piece of propaganda or news story, but if you see anything you’d like the Referendum Fact Check to look at, please let me know.


Good news, everybody (for everybody)

In which Graeme tempts the fates by engaging in political analysis: Hone has won his by-election. And by a wide enough margin that he can feel safe come November.

This is Good for Mana

The win in this by-election allows Mana the safety, at the general election, of campaigning for the party vote, with voters in the knowledge that there votes will not be wasted.

It was a risk, but it was also necessary. And I'd be saying the same had Hone lost. Mana has its Epsom-esque anchor seat. Had Hone waited until the general election, the possibility that he mightn't win would have scared off voters. Perhaps enough voters to diminish their post-election number to by an MP or even 2. It is, I suspect, what happened to New Zealand First in 2002. Tauranga looked close, and the 5% threshold loomed large, so some voters were scared off. With a substantially lower (or no) threshold NZF could well have breached 5%.

The same thing could have happened to ACT in 2005: voters weren't sure Rodney would win Epsom, and ACT slumped to 1.5% and 2 MPs. ACT might not have made it to 5%, but the knowledge a vote for ACT would not have been wasted could easily have seen it with 1 or 2 additional MPs.

I don't expect Mana to reach 5%, but the confidence voters can now have that a Mana vote won't be wasted, could easily be the difference between the ~1.2% of the party vote needed for a second MP and the ~2.0-2.1% needed for a third or (or even ~the 2.8-3.0% needed for a fourth).

Without this safety, the looming threshold could have frightened the voters, and Hone could have been by himself, or with just one colleague. A base of 3 or 4 MPs is a much better platform to build a parliamentary movement than 1 or 2.

This is Good for Labour

Labour held the Maori seats for decades. And

if they want to get back some of those they lost to the Maori Party - if Labour were playing the long game - then a Mana victory is an immense help. I suspect support for Mana and the Maori Party come from similar types of voter, and if those voters are split between Mana and the Maori, the chances of Labour re-taking the other Maori seats at the general election must increase.

Unless, of course, Mana doesn't stand candidates in Maori Party held seats, and thus far, Hone has shown every inclination that he really doesn't want to.

This is Good for the Maori Party

The Maori seats are the lifeblood of the Maori Party.

If the Maori Party wishes to hold onto its seats - or even take Labour's Maori seats from it - then it doesn't want Mana running against them. Hone has his seat, and has now removed any doubt that it is his seat. In each Maori electorate there is likely to be room for only one candidate seeking the support of voters inclined to the values both Mana and the Maori Party attest. In Te Tai Tokerau, we know that will be Hone. After its loss, the Maori Party is in a better position to learn the lesson.

Hone offered a deal: don't run against me and we won't run against you. Mana seeking the Maori seats held by the Maori Party could be enough for them to lose a number of those seats to Labour.

I really do not think Hone wants that to happen. In spite of the animosity between them, I don't think Hone wants to compete in electorate races with the Maori Party.

At least not yet. In the years to come, who knows? But at the 2011 general election, I'm of the opinion Hone wants Mana to focus on the party vote only. Electorate vote Maori Party, party vote Mana, and get two MPs.

I really do think Mana wants to maximise its party vote, and the lesson provided here to the Maori Party is that they should take the deal. Without a loss here, it may have been difficult for the Maori Party not to run in Te Tai Tokerau in November. They're now in a better position to learn the lesson and take the deal. Which I very much think is still open. And if they take the deal, their election chances in November are much greater.

A few final words about that deal. It is couched in terms that would allow Mana to contest the Labour-held Maori seats, but I suspect they don't even want to do that.

This is simply an end-run around the distortion-causing 5% threshold. Mana wants your party vote, and wants voters in the Maori electorates, and the general electorates, to give it to them: Maori electorate votes outside Te Tai Tokerau won't help them.


Mana update

After my two posts (long version, short version) looking into the practical implications of the Ter Tai Tokerau by-election, I thought I check with the Electoral Commission to see whether Mana had been registered as a political party.

At a 4:38 this afternoon, I spoke to someone at the Electoral Commission who confirmed that a final decision had not been made and the matter was still in train.

And at 4:41, as I was preparing to write this, I got emailed a media advisory from the Electoral Commission that they had been registered, sent, I am told, as soon as the decision was made. That's timing.

Anyway, the matter is now abundantly clear. If Hone Harawira wins the Te Tai Tokerau by-election, he will be entitled to be recognised as the Leader of Mana in Parliament, and will be entitled to be paid and funded on that basis.

Will Hone win? Who knows? Every prediction I have seen in the media or on blogs, or on facebook for that matter has been wishful thinking. If the predictor was a Hone/Mana supporter, they predicted Hone would win. If a Hone/Mana opponent, they predicted Kelvin would win.

I haven't a clue. But we don't have long to wait.