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Rod Donald and Jeanette Fitzsimons in 2007. Photo: Dean Purcell/Getty Images
Rod Donald and Jeanette Fitzsimons in 2007. Photo: Dean Purcell/Getty Images

PoliticsMay 3, 2018

The waka-jumping bill: a bad solution to a non-existent problem

Rod Donald and Jeanette Fitzsimons in 2007. Photo: Dean Purcell/Getty Images
Rod Donald and Jeanette Fitzsimons in 2007. Photo: Dean Purcell/Getty Images

Legislation that would stop MPs from retaining their seat if they part ways with their party is currently before a select committee, having been supported by Labour, NZ First and the Greens at its first reading. Here Jeanette Fitzsimons, former leader of the Green Party, urges parliamentarians to chuck it on the fire

It breaches the Bill of Rights. It denies freedom of speech and association. It is contrary to international and NZ precedent. It is opposed by an impressive array of senior legal, constitutional and political experts. The Electoral (Integrity) Amendment Bill – or “waka-jumping bill” as it is better known – is unnecessary to address any real problem.

Integrity cannot be legislated for. It is a matter of conscience and judgement. In some cases leaving one’s party is an act of integrity – as when the party has departed from the policies it took to the election, or has abused proper process. In other cases, it may be just self-serving political expediency. Normally the law has the sense not to intervene here. Personal judgements will differ on whether an action is carried out with integrity and only the voters can be the judge of that. In our system of three-year terms, they don’t have to wait long for the opportunity and in the past they have exercised it, generally returning members who changed their allegiance on well founded principle, and getting rid of the opportunists.

Dissent is a valuable part of the political process. Without it, MPs are just clones of their leader. Having dealt with it as co-leader of the Green Party caucus at times, between 1999 and 2009, I know uncomfortable it can be but the remedy is inclusiveness and listening and wide discussion, not shutting down the political process.

I strongly disagreed with the stance my former colleagues Kennedy Graham and David Clendon when they took on the actions of co-leader Metiria Turei and I was highly critical of the way they went about it, which was unnecessary and damaging . But I would defend to the end their right to freedom of conscience, and to express their views in opposition to the rest of the caucus, without being thrown out of parliament.

The main argument advanced for the Bill, in fact its stated purpose, is to maintain proportionality of political party representation … as determined by electors. This elevates a bureaucratic structure – the party – above the principles it stands for.

Political parties exist to give form to a set of (hopefully) coherent ideas, policies and processes which together make up its platform. This is what voters vote for, along with confidence (or not) in the representatives themselves. Proportionality in the representation of ideas, policies and political philosophy is a worthy goal as voters’ wishes, in a democracy, should be supreme. However parties do not always ensure that. Major unsignalled changes in policy by parties have led to a number of the realignments of members in order to better represent their constituents and their consciences – notably the move to neo-liberalism in 1985; division over war in Afghanistan in 2002; the Foreshore and Seabed legislation in 2004. The Bill is founded on the idea that parties are always right, and dissidents always wrong. That is far from the case.

It is not parties who should forever be represented proportionally, freezing parliament in some kind of time warp, but the ideas they put to the electorate, and the will of the people as expressed in their votes.

Our political system already allows departures from party proportionality in several ways: for example the overhang created when a party wins a seat or seats greater than its party vote would entitle it to; and a by-election which changes the party balance in the house. These have not been seen as requiring special legislation.

Attempts to reflect the wishes of the people by realigning party affiliations has been a creative and progressive part of political evolution. Both National and Labour were initially formed by “party-hoppers”: Labour in 1916 by Members switching from the Social Democratic and United Labour parties; National in 1936 by Members from the United and Reform parties.

NZ First would not exist if Hon Winston Peters had not left National on a point of principle to become an independent MP, later forming the new party. When he was joined in 1996 by Peter McCardle and Michael Laws from National and Jack Elder from Labour, Mr Peters said, and I agree with him: “Members of Parliament have to be free to follow their consciences. They were elected to represent their constituents, not swear an oath of blind allegiance to a political party. If an MP feels that membership in another elected party better serves his or her constituents, then that can be put to the test at election time.”

Quoting this in his speech on the second reading of the first iteration of this bill, in 2001, my late colleague Rod Donald asked, “What has changed?” I suggest only the direction of travel of the party-hoppers.

Other western democracies have not seen the need to outlaw changes of party affiliation.

The inter-Parliamentary Union, based on a 2009 survey of 162 countries, reported on political party control over the exercise of the free parliamentary mandate. They recommended that,

“The National legislature should consequently protect the basic elements of the free parliamentary mandate, in particular the MPs’ responsibility to represent the entire nation, the MPs’ freedom to determine their political affiliation, and their irrevocability.”

They further recommended that countries which already have in place laws such as the one before you, should repeal them. Those countries are principally new democracies in Africa and Asia. New Zealand was part of the Allies who imposed MMP on Germany at the end of the second world war. Our MMP system is based on the German one, but Germany has no such law.

This Bill, essentially the same, has been before the NZ parliament twice. Introduced in 1999 (under urgency) it covered only voluntary resignation, and a sunset clause in 2005. Despite the urgency it languished on the order paper until 2001, when an SOP was introduced to allow party leaders to dismiss MPs. It was in force until 2005, and led to the farce of Jim Anderton and Matt Robson pretending to still be members of the Alliance caucus and party, although they had formed the Progressives.

An identical bill was introduced in 2006, but without the sunset clause. It did not progress because of strong opposition. I am proud of the role my party played in this, and in particular the efforts of my colleagues the late Rod Donald, Nandor Tanczos, and Metiria Turei who all gave strong speeches in the house.

This 2017 bill is the same except for the requirement for the satisfaction of party rules – which is unnecessary as the Supreme Court has already ruled that any such rules must be followed. I am deeply distressed that my party has supported this current bill in its first reading and hope that wisdom will prevail before the second reading occurs – if in fact it ever does.

You will be aware of the submission you have received from 18 legal and political academics with expertise in the field who have strongly counselled you to reject the bill, with or without amendment. Taken with international precedent and opinion, this amounts to overwhelming opposition which parliament must take into account.

The argument has been advanced that party leaders cannot recklessly dismiss MPs because their decision is judicially reviewable. I am very concerned at the constitutional implications of that. It is a long standing principle of our democracy that parliament makes the laws and does not interfere in the interpretation of them by the courts; likewise parliament is sovereign over its own affairs and the courts do not tell it how to manage what happens in the house. That is a fundamental safeguard of our democracy and it is threatened by the idea that the courts should decide that a party leader is or is not justified in dismissing an MP.

Defections from political parties were a feature of the transition from FPP to MMP. They occurred n Germany in the early days of the new electoral system, and in NZ before and after the introduction of MMP as MPs positioned themselves for the new system. Since then they have largely dried up, with only three in the 18 years since 2000. This bill is a poor solution, looking for a non-existent problem.

The above is an edited version of Jeanette Fitzsimons CNZM’s submission to the Justice Select Committee on The Electoral (Integrity) Amendment Bill

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