Speech to Reconstituting the Constitution Conference

Thank you for inviting me to speak today as part of the panel on the Future of Electoral Law.

Looking back over time, National governments have had a track record of making significant electoral and constitutional changes.

These have included the Legislative Council Abolition Act 1950, the Official Information Act 1982, the Human Rights Act 1993, the referendum on the electoral system in 1992-93, and introducing provisions for citizens initiated referenda in 1993.

This National Government is no different. We campaigned on holding a referendum on the MMP voting system and will do so next year. We repealed the controversial Electoral Finance Act and are in the process of replacing it.

It hasn't been widely reported but we've also quietly achieved the first stage in an amalgamation of electoral agencies with the co-operation of all parties in the House.

The new Electoral Commission will be up and running in October, taking over the responsibilities of the Chief Electoral Office and the current Electoral Commission. The functions of the Chief Registrar of Electors will then be absorbed into the Commission in 2012.

And we're continuing to work on the terms of reference for the constitutional review.

I'm somewhat limited in what I can say about this work programme, because the first two measures are currently before a special cross-party select committee, and details for the constitutional review are yet to be publicly announced.

But what I can talk about is the process we've adopted for dealing with electoral and constitutional issues.

Our policy, where possible, is to avoid situations where politicians are too heavily involved in the design of any changes.

That only leads to a lack of real engagement in public concerns about the system, and at least the perception that politicians act in self interest. In short, it's like letting panelbeaters design intersections.

In the case of the MMP referendum, this was a policy that was well-signalled to voters leading up to the last election.

It may surprise many, but the Government doesn't actually have a view on which system should prevail. The policy is to give voters, after five elections under MMP, another opportunity to have their say.

There continues to be some debate about whether another referendum was actually promised at the time that MMP was introduced. The Electoral Act 1993 provided for a review of MMP by select committee following the second MMP election. Perhaps unsurprisingly, it failed to produce any conclusive recommendations.

In the absence of a written constitution, an upper house, a federal system, or other formal checks and balances, New Zealanders hold dearly to their right to vote every three years. It follows that the rules for translating those votes into representation should also belong to the people.

This Government's approach to the referendum has been to give the public another say. That's why, as far as practicable, we've sought to replicate the format used in 1992-93. But one difference is the decision to hold the referendum at the same time as the 2011 and 2014 general elections respectively. This allows enough time to prepare for both referenda, bearing in mind that if a second referendum is triggered then a whole new electoral system would need to be designed for the run-off vote.

It's not widely known that officials began drafting the bill to implement MMP before the 1992 indicative referendum in anticipation of a particular result, and even then the Electoral Act 1993 had to be substantially amended before the first MMP election.

More importantly, running the referendum alongside general elections maximises the potential turnout of voters in deciding on such an important constitutional matter. We had considered whether a modified version of MMP should be incorporated into the first referendum. But this could have led to the accusation that the Government was trying to engineer a particular result.

Instead, the Government's view is that the first referendum should simply ask voters to make a choice about the basic type of electoral system they want. If a majority favours MMP in some shape or form, then the Electoral Commission - not Members of Parliament - will investigate whether modifications are necessary or desirable. This allows those who favour a proportional system, but may be irked by a particular aspect of MMP, to avoid throwing the baby out with the bathwater.

I would add that the Government will be making the voting public aware of this contingency, as well as other consequences of the choices they will face, by way of an estimated $5.2 million education campaign next year.

Like the upcoming referendum, the repeal of the Electoral Finance Act 2007 was another policy that we clearly signalled before the election. It took less than 100 days and the support of all but one party to remove it from the statute books. We had a reasonably strong mandate to get rid of it, but there wasn't anywhere near the same amount of clarity about what should replace it.

To me, what was most important about the new regime was the process we used to construct it. The Electoral Finance Act 2007 was enacted without the broad cross-party support that has historically characterised electoral reform. Without such broad-based support, it simply lacked legitimacy.

In contrast, the process adopted to develop the new electoral finance regime has been the subject of three opportunities for public input and a number of discussions with parties across the House.

Inevitably, some have been disappointed that the bill does not include more radical measures to either restrain or relax the ability for parties, candidates, and interest groups to participate in a campaign.

I'm not ruling out further changes, but any amendments must address some identifiable harm that can be recognised across the political spectrum.

Perhaps no party will be entirely satisfied with the electoral finance regime that results, but you'll forgive my lack of ambition in seeking a bill that at least no party finds offensive. A process that engages all parties in this way is the path most likely to lead to fair, workable, and enduring solutions.

The electoral system undoubtedly belongs to the people, but it's unrealistic and unwise for political parties to be removed entirely from the reform process.

It's only since the introduction of MMP that our constitutional framework has recognised what we have all known for decades - that modern elections are primarily about voting for parties.

As what my officials might describe as ‘key stakeholders', political parties have to deal with electoral law on a practical level. So I would expect that the select committee will also shape the electoral finance legislation to reflect the realities of campaigning.

I want to close by saying a few words about the proposed review of constitutional matters.

As part of the confidence and supply agreement between National and the Maori Party, we have agreed to establish a group to consider constitutional issues, including Maori representation.

An announcement was to be made in early 2010, but both parties have agreed to take a little bit more time to shape the terms of reference. Discussions have been very positive and the Government hopes to make an announcement in the next month or so.

The primary consideration of both parties is the need to engage the public in a conversation about constitutional issues. The terms of reference will contain a number of ‘starting points', but these will be neither be exclusive nor exhaustive. What I can say is that we will give the public sufficient time and space to contribute.

That's not to say this conversation will take place in a vacuum of information. We want to encourage ongoing debate about the future shape of our electoral and constitutional arrangements.

And that's where you and conferences like this come in.

Thank you.