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Another MMP rort?

Written By: - Date published: 11:50 am, May 4th, 2012 - 44 comments
Categories: act, brand key, democratic participation, election 2011, election 2014, john banks, john key, leadership, MMP, national, Privatisation, same old national - Tags:

The media are doing their job, and a good job, investigating John Banks’ donation history. Today’s story by Danya Levy in the DomPost follows up those by John Campbell on Campbell Live and David Fisher in the Herald. The Police are presumably also doing theirs, and it seems clear that the matter must end up in Court and the issue of who is telling the truth will be decided by a judge.

The media’s questioning of the obvious makes John Key and Wayne Eagleson look like complete wallies. I’m absolutely certain that Helen Clark and Heather Simpson would not have been so lacking of interest in any specific answers.

It has been a mystery to many why Key has hung on so long to Banks’ threadbare justification. It must be because the political consequences are significant, and the stakes very high. Some in the media have dismissed the question of any threat to National’s majority. Short-term maybe, long-term I’m not so sure.

Submissions are under way on the Mixed Ownership Model Bill, recently introduced to Parliament by a one-vote majority of the parties. 61 votes for, 59 from National, 1 from ACT, and 1 from United Future versus 60 votes against, 34 from Labour, 14 from Greens, 8 from New Zealand First, 3 from Maori party and 1 from Mana. As slim as it gets.

If John Banks is convicted of the offence of presenting a false return, and is therefore required to step down from Parliament, or if he decides to resign to focus on clearing his name before he suffers that indignity, there will need to be a by-election in Epsom. Then it gets interesting.

If National stands its previous candidate, Paul Goldsmith, who asked Epsom voters only to party-vote National, then National continues to have 59 votes in Parliament, ACT loses its member, and the majority for MOM lapses. Some commentators on Kiwiblog have said Goldsmith could stand, be elected, resign before the writ is returned, have another National member replace him from the list, and then take his seat as the member. This would make Banks look clean.

If National stand a candidate who is not already in Parliament and win the seat, which David Farrar says they would do with ease, then they would have 60 members, more than the 59 they are entitled to under the Electoral Act from party votes cast in 2011. This is because a MP elected from the list  remains a Member of Parliament unless they resign. It would be a rort, similar to what happened in the dying days of the Shipley-led National government that led to the party-hopping legislation.

The only other  option for the right is for ACT to stand a candidate and National not to enter the lists. Given the smell emanating from ACT and its current zero-rating in the polls, this may be considered too much of a risk.

So it looks like a rort. The surest sign of a dying government.

44 comments on “Another MMP rort? ”

  1. Farrar is now pronouncing Act dead: ACT – dead 4 May 2012, aged 18.
    But suggesting the plug isn’t pulled on life support yet…

    At the next election, National must stand in Epsom, and stand to win the seat.

    I think he’s right, perhaps apart from the final timing.

  2. I think the reason National’s response has been so appalling is that ACT is not a separate political party, independent of National.  It is a puppet party taken over by National some time ago.  Simon Lusk et al were involved.  ACT has been on life support for some time.  It only exists because of National’s machinations.
    National has already squandered a considerable amount of political capital on doing this.  The closeness of last election’s result and the rejuvination of Winston Peters are directly related to this.
    But National effectively has no choice apart from patching things up with NZ First or surrendering the seat to the Conservatives or a right wing independent.  The only other alternative is to tough it out and hope that Key does not get directly implicated.  I am watching Campbell on TV3 with interest.
    These are very interesting times …

    • I know a few people associated with the National party- they say that National leadership was often frustrated with Act and felt they were disrupting their (then) “softly softly” strategy.

    • Jim Nald 2.2

      John Banks is of the National Party and just ACTing.

      Cabbageman was a member of National’s caucus for many, many years (thanks for facts for a change, Maurice Williamson: http://www.stuff.co.nz/auckland/local-news/6835132/Banks-told-Williamson-Dotcom-was-Aucklands-friend).

      My (still staunch National-voting) brother and I do agree on one thing – that every time this Sauerkraut that often accompanies porkies turns up on the political menu, he reminds us of the things that are rotten with most of the lot in the National Party.

  3. Deano 3

    Nice post but a factual error.

    National would get another list MP if Goldsmith became the electorate MP for Epsom.

    The number of list MPs each party has is fixed after each general election. Goldsmith becoming an electorate MP would leave a list vacancy for National, which Gilmore is next in line to fill.

    It’s the same as the so-called ‘Tizard effect’ that would have seen Judith Taizard next in line to come into Parliament for Labour had a sitting List MP won Mt Albert or Mana.

    • felix 3.1

      Is that Aaron Gilmore you’re referring to?

      They’ll have to be pleased about that, he’s one of National’s finest. Big future for that lad.

    • Another part of the system to fix. By-elections should not be an opportunity for an existing party to get an extra seat.

      • alwyn 3.2.1

        I am curious just how you are going to arrange this Mathew.
        I can think of a couple of ways but the simplest one would seem to be what the then Labour Government did in New Plymouth when Harry Duynhoven blotted his copybook by taking Dutch citizenship.
        An acquaintance of mine, now a QC, told me that what Labour did, with their retrospective change to the law to let Harry stay in Parliament, was to effectively appoint him as an electorate MP to the VACANT seat in New Plymouth. He said that a cursory reading of the act seemed to him to say that Harry had forfeited the seat the moment he took Dutch citizenship and it didn’t matter whether the Speaker had been informed or not. Thus the seat was vacant and the law they passed was filling a vacant seat.
        I am not a lawyer so I can’t really comment but it is certainly an interesting view.
        Incidentally I think a very good law for New Zealand to adopt is one that Australia has. There they say that an MP shall be ONLY a citizen of Australia. Dual citizenship by MPs is not allowed. The only exception is for MPs born in countries, like Greece, that do not allow you to renounce your citizenship. An MP must however show that he has made every possible attempt to get his old citizenship cancelled.

        • ghostwhowalksnz

          It only avoided a by election. he was an electorate MP before and would have been an electorate Mp after the by election.
          \ Parliament makes these sort of validating laws all the time, someone goofed over some paperwork and so on . It only makes an existing situation valid legally. You may be right about your QC friend , but hes never had to do anything more complicated than be a self employed person. Real world isnt so simple

          • alwyn

            What a fascinating statement. Because you say so we can assume that Harry D would have won the by-election. I presume that Harry was also going to win New Plymouth in 2008?
            We can save a fortune every three years. The ‘ghostwhowalksnz’ is going to decide who will win all the electorate seats and we don’t need an election to determine them. I wish I had such infallible perception. I would certainly be able to become very rich by investing on iPredict.
            Actually you remind me of a short science fiction story I read many years ago. The computer technology had become so advanced that they only needed a single voter who’s pick could determine all the results in all the US elections.

        • Why are you suddenly talking about citizenship? What I’m talking about is the fact that winning a by-election when you have List MPs ought to just bump the bottom list MP out of Parliament, instead of adding a new MP for that party.

          But seeing you’ve brought up the topic: What do you have against dual citizenship? If an MP is a dual citizen they are obviously going to be considering the interests of the country they live in and represent before the interests of their other country. Being a New Zealand citizen in good standing ought to be enough.

        • Vicky32

          when Harry Duynhoven blotted his copybook by taking Dutch citizenship.

          Which is not exactly what happened! Someone with Dutch citizenship never loses it – he’d had Dutch citizenship all along. Wikipedia tells what actually happened… and very fairly as well.
          Extract: “In 2003, it was alleged that Duynhoven might have accidentally violated an electoral regulation, thus depriving him of his seat. This claim arose after Duynhoven applied to resume his citizenship of the Netherlands. His father was from the Netherlands, and Duynhoven had possessed citizenship from birth, but had temporarily lost it due to a change of Netherlands law. According to electoral law, applying for foreign citizenship would require Duynhoven to vacate his seat. The law was seen by many as misguided, however, and Duynhoven, with his huge majority, was almost certain to re-enter Parliament in the event of a by-election. As such, the government passed an act retroactively amending the law.”
          The whole thing made me very cross at the time.

    • alwyn 3.3

      There is no point in telling Mike about his factual errors Deano. He is just as aware of them as you and I are. His only real aim is to have a bash at John Key, truth be damned.
      Poor Mike and the rest of the Labour party troops though. The don’t seem to have learnt anything from 2008 or 2011. The New Zealand public don’t like the concerted crap throwing they indulge in and that is a major reason for the desperate decline of the party in the polls and in the elections. Can anyone believe Mike Williams H-fee fiasco did anything for their prospects?
      There is a good case to be made that Trevor Mallard in particular has been the most influential politician in New Zealand in the last 6 or 7 years. I would think he has swung the votes of 100,000 or more people in the elections. Unfortunately for his fellow party MPs the swing has been away from his own party and to National and the Green parties.
      I am intrigued by the way that the Green party has shut down Meteria Turei. She had one little blast on Frogblog and one effort in Question time in Parliament but since then she appears to have been silenced. Russel Norman appears to have resumed his much more sensible control.
      I know at least a dozen people who used to be Labour voters. A couple tell me that they switched to National but the rest say the now vote Green. They said they became too ashamed to admit they supported the current Labour party.
      Oh well wait for the next few polls. Labour down and the Greens back up I would suggest.

  4. insider 4

    ” I’m absolutely certain that Helen Clark and Heather Simpson would not have been so lacking of interest in any specific answers.”

    Oh come on, you surely aren’t that naive. This is politics where you do everything you can to protect your own team and wilfully ignore the obvious, and defend the indefensible till the very last.

    Key is walking the same path Clark and Simpson walked a number of times (and no doubt their predecessors walked before them). Like when they accepted Taito Phillip Field was just guilty of working too hard for his constituents. Or when they accepted Winston First at his word.

  5. Mike Smith 5

    @ Deano

    It’s not the same as the “Tizard effect.”

    You correctly say that the number of MPs a party is entitled to is fixed after the last election. National’s entitlement after 2011 is 59 MPs. If Goldsmith does not resign from Parliament, and stands and wins Epsom as a National candidate, that still leaves National with 59 MPs. But there is no ACT MP to make up National’s majority.

    If he resigns to stand, Gilmore comes in and Goldsmith wins Epsom, that gives National one more MP than they were entitled to by virtue of the election result. That’s the rort.

    Helen Clark was a Labour MP when she resigned, and was counted in the 43 MPs Labour was entitled to after the 2008 election. If a list MP had resigned from Labour and won Mt Albert, that would have left Labour with one less than their entitlement, hence one more person would have come in from the list. Labour’s entitlement of 43 MPs would not have changed.

    • Lanthanide 5.1

      No no, the number of LIST seats they are entitled to stays fixed.

      They have 59 seats in total, which comprises of mostly electorates and a few list seats. Goldsmith would resign his list seat and take up only the electorate seat. They would still be entitled to the same number of list seats, so the next person on the list comes in.

      If Goldsmith failed to resign his list seat, and became a list and electorate MP (the same class as John Key for example as he won his Helensville seat) then National would maintain 59 seats, Dunne would keep 1 and total parliament size would drop to 120. That would leave them at 60/120 and not enough to pass legislation. So Goldsmith would resign his list seat prior to taking up the electorate one.

    • Enough is Enough 5.2

      Mike Smith – WRONG

      graem Edgeler

      come and explain it to us

      • Lanthanide 5.2.1

        Actually having re-read the original post and Mike Smith’s comment above, he is in agreement with what I outlined in 5.1.

        But for some reason Mike is calling this a “rort”. I don’t think it is – it’s a clear and obvious result of the ways the rules are written.

        If he is saying that Goldsmith should not be allowed to resign his list seat, and upon winning the Epsom electorate must stay as a List + Electorate MP, then yes, the law could be written that way. But if that were the case, National would simply stand someone else in the electorate instead and still end up with 60 seats in the house.

        It actually makes more sense for the constituents of an electorate that the 2nd runner-up in the electorate stand in the by-election and the fact that they’re already in parliament doesn’t really change that.

      • Mike is right about what happens. It happens any time a by-election is won by a party which didn’t previously hold it. When Kelvin Davis contested the Te Tai Tokerau by-election he was trying to gain the same advantage for Labour. When Hekia Parata stood in the Mana by-election, the same.

        I would also note that this isn’t an MMP rort. The same thing happened under first past the post, and happens in any system where there are by-elections.

    • The problem Mike has comparing Epsom to Mt Albert – in Epsom if National win a by election they have gained a seat, Act have lost one, so National pick up one. And if a list MP wins the electorate they are replaced by anothee National list MP.

      In Mt Albert a Labour MP replaced a Labour MP in the electorate, a Labour MP replaced a Labour MP on the list, so no change.

  6. Mike Smith 6

    @ Lanthanide

    I don’t agree with you. The number of list seats does not stay fixed. The entitlement is a total number based on the number of votes gained, and is made up of electorate and list seats. The mix may change.

    The Electoral Act defines in Section 54 how a person becomes an MP. If they are named in the return of the writ after a general election, they remain an MP till the end of the term of Parliament regardless of whether they enter on the list or via an electorate.

    If an election is held for an electorate, the same provision applies for the successful candidate.

    Section 55 defines how a vacancy is created. The two relevant reasons here are if a person is convicted of an offence which carries a penalty of two years or upwards in prison, or if they resign from Parliament by writing to the Speaker.

    The number of seats a party has in Parliament at the return of the writ after a general election is determined by the party vote in the election. National currently has 59. It is not entitled to any more simply by changing how they are elected.

    Section 134 determines how a vacancy is filled by the resignation of a list member. The Speaker gets the letter, then tells the Governor-General who tells the Electoral Commission who fills the vacancy forthwith.

    The rort is that as a result of the way the law currently stands National could end up getting 60 MPs when votes at the election only entitled it to 59. The cup-of-tea deal with ACT would look even more shabby than it was. That’s why they are clinging to every straw.

    • Lanthanide 6.1

      So if we follow what you’re saying to it’s logical conclusion, if the Conservatives stand in Epsom and win the by-election, they’ll have 1 seat when votes at the election only entitled it to 0? Or would they suddenly bring in list seats from the by-election since they got ~3% of the party vote?

      Sorry, but from the comments I have read from Graeme Edgeler on this, I understand that the list seats are fixed after the writ is returned, not the total seats in parliament for any party.

      • Yep – seats can change over the course of a Parliament. They’re only fixed on election day.

        In 2008, Mana received no party votes, entitling it to zero seats. Yet a Mana candidate won a by-election, and Mana ended the term with one seat, one more than its party vote entitled it.

        If Colin Craig won a by-election in Epsom, the Conservatives would not pick up any list seats.

        We could have chosen to do this a different way, but we didn’t.

  7. Daniel 7

    This post is nonsensical. You are suggesting that if someone resigns from an electorate seat, the byelection must be won by the party that vacated it. Otherwise proportionality is going to be affected, and one party is going to have more or less seats than they were eligible for at the election.

    If Labour won epsom (somehow) with a list MP, would they resign their list seat, and give labour one more vote? Of course they would.

    You’re also against any non-list MP from standing in a By-election, as that would affect proportionality too. What about independents? They weren’t allocated any seats after the election. What a rort!

    This is the inevitable consequence of retaining electorates in our electoral system. If you want that, you’re going to have the possibility that seats will change hands, and the balance of power in parliament will shift.

    If you want to maintain the exact proportionality that was determined in the election, you need to get rid of the electorates, and have a parliament entirely made up of list seats. There are many excellent arguments in favour of doing just that, and I’m somewhat in favour of that myself.

    If that’s what you want, and that seems to be the only way to achieve what you seem to want without unfarirly depriving people of their democratic right to stand and be elected, then I presume you have submitted to the MMP review advocating just that?

    • You’re confusing the sequence of events- what they’re suggesting is that if someone looks set to win the election and the writ has not yet returned, they can resign their list seat before that time and add an extra MP to their party.

  8. “Some commentators on Kiwiblog have said Goldsmith could stand, be elected, resign before the writ is returned, have another National member replace him from the list, and then take his seat as the member.”

    This is correct as a matter of fact. If it is a “rort” that urgently needs to be fixed, then people can tell the Electoral Commission that they want it changed: http://www.mmpreview.org.nz/the-issues/overview/election-candidates

    But I don’t think it is, for reasons I argued here: http://www.pundit.co.nz/content/plus-ca-change-and-all-that.

    Finally, if Mike Smith really thinks that “The rort is that as a result of the way the law currently stands National could end up getting 60 MPs when votes at the election only entitled it to 59”, was it wrong for Labour to stand candidates at the Botany/Te Tau Tokerau by-elections last term? I mean, if their candidate had won either of those by-elections, then it’d have got one more seat than their share of the party vote entitled it to in 2008. And it would also be wrong for Labour to contest any Epsom by-election, least they (accidentally) win it and thus get another seat in Parliament?

    • Aye

      I agree that parties ought to be able to contest by elections so that if they win the previous election’s proportionality may be upset.  If this cannot happen then we should do away with by elections.

      It is not a rort.  It was a rort for National to gift ACT the seat of Epsom but that is a different story …

      • “It is not a rort. It was a rort for National to gift ACT the seat of Epsom but that is a different story …”


        • fender

          Not sure that its a rort as such to have supporters who will blindly obey your instructions to vote a certain way.

          But it could be seen as taking advantage of simple folk, voters who will go down also when the drunken sailor sinks his dinghy.

      • insider 8.1.2

        As it was for labour to gift Sydenham to anderton and labour and national gift ohariu to dunne by not effectively contesting either seat

        • felix

          Anderton held that seat from 1984 until he retired.

          No-one gifted it to him except the voters of Sydenham themselves.

        • Andrew Geddis

          I think the “electorate lifeboat” exception to the representation threshold is a bad thing and should be abolished. Don’t care who uses/used it.

  9. Brooklyn 9

    Standing someone from outside parliament is not a Rort, just playing the rules to your best advantage and any party would do it. The Goldsmith resigning scenario on the other hand would be so slimy that the government would be dead on its feet until the next election. They are that slimy, but unfortunately not that stupid.

    • “Standing someone from outside parliament is not a Rort, just playing the rules to your best advantage and any party would do it. The Goldsmith resigning scenario on the other hand would be so slimy …”

      Just so we all are completely clear, this analysis also holds true for Labour’s decision to stand the list MP Kelvin Davis at the 2011 Te Tai Tokerau by-election? Unless you really think that if Labour had won that by-election, it would not have done exactly the same thing as it is being suggested National might with Goldsmith?

      (And just so I am completely clear, I have no problem with Labour’s action then, nor would I have a problem with National standing Goldsmith in any future by-election in Epsom. But I cannot see how you can condemn one without also condemning the other.)

      • Lanthanide 9.1.1

        I don’t see why there’s any reason we would want to stop this practice, because stopping it would result in a perverse incentive (and you say pretty much the same in your submission to the electoral commission).

        We could have a rule: if you hold a list seat and subsequently win an electorate seat, you are not allowed to resign your list seat. But this would simply mean that the party would never have a sitting list candidate stand in by-elections, they would always choose to bring in a new face as that would increase the number of seats they hold in parliament. So we end up with the perverse situation where someone who ran for an electorate in the general election but came second (as Goldsmith did) then would not stand in the by-election in that same electorate, even when they are (presumably) the party’s candidate best placed to win that electorate in the by-election.

        This also would do a dis-service to the constituents of the electorate: the party put that person up at the general election because they believed they were the best person for the job (well, Goldsmith is a special case here), but when it comes to the by-election suddenly they’re not allowed to represent the people in that electorate?

        • A better rule is that the winner of a by-election, if not already in parliament, if they are a member of a party that has list seats in parliament, shall replace the lowest-ranked list MP on the return of the writ.

          • Daniel

            But that would still mean that the every time there is a byelection, and it is won by someone not already in parliament, the number of MPs would decrease by one, proportionality would be affected, and in a parliament as close as the current one, governments could fall on a change like that.

  10. Mike Smith 10

    @ Andrew Geddis

    Labour’s chances of winning Botany were about as good as its chances of winning Epsom, so I don’t think it was wrong to stand there. It is done for other reasons.

    As for Te Tai Tokerau, from my memory Kelvin Davis did not resign from Parliament so if he had won his status would simply have changed from list to electorate MP and Labour’s 2008 entitlement would not have changed. There was an overhang in the Parliament caused by the Maori Party gaining 5 electorate seats, more than their party vote entitlement so proportionality would also not have been affected if Hone Harawira had lost. He was contesting the by-election for Mana which had not stood in the 2008 election.

    If I understand you correctly to be saying that in the event he had won Te Tai Tokerau, Labour would have asked Davis to resign after he had been elected so another list MP could be introduced to Parliament, I think that is a political opinion rather than a legal one. It may reflect your perceptions of the Labour party; they’re not mine.

    • The working assumption of everyone, including the Electoral Commission, is that if a list MP (such as Kelvin Davis) won a by-election, they would resign as a list MP prior to the return of the writ. During my oral submission on the MMP review, the Chief Electoral Officer pretty much stated exactly this.

      The vacated list seat would be filled by the next person on the list, and the (now former) list MP who won the by-election would become the electorate MP. In Kelvin Davis’s case, this would have increased Labour’s strength by one from its election night total.

      This is not mandatory, but it is certainly what everyone expects (barring a Tizard effect, where the next person on the list really isn’t wanted).

  11. @Mike: “If I understand you correctly to be saying that in the event he had won Te Tai Tokerau, Labour would have asked Davis to resign after he had been elected so another list MP could be introduced to Parliament, I think that is a political opinion rather than a legal one. It may reflect your perceptions of the Labour party; they’re not mine.”

    Given that I don’t think there is any “rort” at issue, but rather it is how by-elections work under an MMP system, there’s no “perception” of Labour involved at all – whether negative or positive.

    Put it this way – why exactly do you think it is bad for a party to gain another seat at a by-election by having a list MP win the electorate then resign to allow another list MP to enter the House, but it is not bad for a party to gain another seat at a by-election by having a non-MP win the electorate? How is the former a “rort” that is an unacceptable deviation from MMP’s principle of proportionality, while the latter is not?

    Or, would your solution be to just do away with by-elections altogether, and say that the party which won the electorate at the last election can just appoint the new MP?

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