Ikaroa-Rāwhiti: And the winner was...?

Although Labour's Meka Whaitiri got the largest number of votes in Saturday's by-election, a closer look at the statistics makes it hard to see this a real 'win' for Labour, let alone for democracy. The voter turn-out was only 32%. Low turn-outs are common in by-elections, but this one is lower even than one sees at local-body elections. What this means is that Labour's candidate vote has dropped from 10,558 in the 2011 election to only 4,368 in the by-election. Parekura Horomia won 57.6% of the candidate vote in 2011, and Whaitiri won 41.5% on Saturday. At least she can say that her support is well ahead of each of the two main rivals from the Mana and Māori parties. The latter came in third, though, compared with being second in 2011, and so that may be a cause for concern for the Māori Party – and an encouraging sign for Mana.
The Labour Party had the advantage of local support and organisation – through its general-electorate committees, covering the whole of the very large Ikaroa-Rāwhiti electorate. Mobilising fewer than 5,000 voters, though, is hardly something to crow about, and, coupled with disappointing opinion-poll results in recent days, this rather predictable 'win' is not a great cause for celebration.
Both Labour and the Māori Party are struggling for relevance at the moment – and there are also questions being asked about how committed Māori voters are to the Māori electoral roll. Saturday's result does little to answer the critics.

Wellington wants to be in the Auckland loop?

Washington DC has its beltway, and hence the expression 'beltway politics' – a term that has been adopted, one hopes with irony, in Wellington, a town that can boast no less than Bowen St. It looks like high-level Auckland politics may in future be described as 'inside the (rail) loop'.
And, if you ever wondered what Gerry Brownlee sounds like when he's swallowing a dead rat and talking at the same time, then just listen to him on Checkpoint.
Jokes aside, what are the politics of the Key government's sudden volte-face in favour of helping to pay for the underground rail-loop in Auckland's CBD?
The time-line is leisurely in the extreme, with work set to begin in 2020 – by which time the present government will certainly have been booted out of the Beehive and consigned to the history books. So they have no skin in the game. And yet anyone acquainted with Auckland and, for comparison, with a city that actually has an efficient public-transport system (take Munich, for example) will know that this is a project that should have been completed last century.
So, what's the real agenda here?
John Key has made no secret of associating himself with the right-wing candidate for Mayor of Auckland, John Palino. I doubt that Palino has even a bolter's show against Len Brown, but someone has to give Len a challenge.
And what about the general election in 2014? Labour and the Greens would have been sharpening their policy pencils over Auckland rail as an issue that might have helped to divide Auckland voters and shift them a percentage point or two to the left.
So this incredibly lame 2020 flip-flop plan is designed to get that issue off the campaign agenda right now, before it's too late, and to steal some of Len Brown's thunder. After all, it was Len Brown who pushed the plan for an underground loop soon after he was elected Mayor, even in the face of the National government's refusals to help. The only way for National to neutralise and control this issue was to adopt it.
Poor old Gerry (from the South Island) was left to explain the dramatic U-turn, but I'm sure he took it all in good grace. Best to endure some ridicule now than face the oncoming train of Aucklanders' wrath in 2014.

The GCSB Bill: Should we be afraid?

Significant amendments to the law governing the GCSB (Government Communications and Security Bureau) are presently at the select-committee stage. The current law allows the GCSB to cooperate with other law-enforcement agencies, but prohibits it from spying on New Zealanders. The amendments, however, would allow the GCSB to side-step that prohibition when cooperating with those other agencies, namely, the NZ Police, the SIS and the defence forces. Should we be worried about this? After all, why not let the GCSB contribute its intelligence-gathering capabilities to assist the Police in detecting serious crime being committed by New Zealanders? We can, therefore we should...
Well, there's an old principle – which I guess goes back to John Locke – that, in a democracy, we are policed by consent. That is, if the people are to consent to the state's policing them, then the powers of the state should intrude no further than the community regards as necessary for their own protection. In the normal course of policing, when charges have to be laid and prosecuted in open court, this balance can be struck following public debate about the law and its enforcement. The trouble with agencies such as the GCSB and the SIS, however, is the necessity of their operations being kept secret. How can we consent to that which we cannot see?
I guess that most New Zealanders accept that there has to be such a secret service, and that, if we want the protection of allies, we need to play a part in international spy networks. Probably most would agree too that there are many international and local threats to our security, and that, to prevent, say, cyber-attacks or passport fraud, there needs to be surveillance that covers domestic and foreign persons and networks. I hope too that most of us would insist that, even if such things have to be done secretly, there is at least some effective independent oversight and warranting.
It's not my intent at the moment to declare where we should draw the line. But, as we cannot truly consent to that which is done (on our behalf) in secret, and, as there's a risk that policing powers, once granted in law, may be stretched as far as (if not further than) the law strictly allows, we should think carefully about the present amendments. At the very least, one would want a strong majority of consent in Parliament – but so far there is no assurance that the amendment Bill will pass.
Process really matters here. What appears to have happened is this: The GCSB was caught with its pants down, acting unlawfully and lacking even a proper framework for compliance with the law. Rather than own up and change their ways, they have declared that the law is 'incorrect' and ought to be changed to accommodate what they actually do. This sounds like a confession that they do not see their job as upholding the rule of law, but instead as acting on the grounds of sheer operational necessity, and, if necessary, treating the law as an ass. Trust us, we know what we're doing...
New law to legitimate what the GCSB has actually been doing anyway has now been hastily drafted, without full consultation with Parliamentary parties. (Keep in mind that the leader of the Opposition may well one day be the minister responsible for GCSB).
Parliamentary consent will be hard-won over this amendment. But, worse, public consent to a whole new era of legalised surveillance of the New Zealand public has not been sought, let alone won, either.

A letter to Edward Snowden

Dear Ed Snowden
Given the amount written about you online already, I doubt that you will read this. But, if you do, I first want to thank you for what you have done for the world, and to express my admiration for your courage.
I am writing to you now, though, to encourage you to turn yourself in to the US authorities. Why?
You say in a recent article that you 'will be satisfied if the federation of secret law, unequal pardon and irresistible executive powers that rule the world that [you] love are revealed even for an instant.'
But, by hiding from the law, you are only frustrating its potential for openness. By secreting yourself in a room in Hong Kong, you are seeking a special 'pardon' of a sort for yourself. This 'pardon', however, comes with no regard for law, even though, without test in any court of law, you claim (and I wish to agree) that you 'have done nothing wrong' – in the wider sense of right and wrong. By evading the American executive powers of which you are justifiably the critic, you reveal the limits of your own courage, you deny those powers the opportunity to show us if they are capable of true justice, and you deny yourself the opportunity to complete the job of being their critic.
For all of its imperfections and its abuses of power, the US is the country that raised you and gave you the extraordinary privilege of access to its secret information, and hence also made it possible for you to speak to the whole world today. The debt you owe your country cannot be repaid, and hence you have an obligation to front up to your country's powers now and let them process your case as they will. You should not run away now – least of all to be a burden on Iceland, nor even on China.
Your duty now is to appear before a US court and to argue your case: the case that you have done no wrong. Of course, you will probably be found to have breached the law, but you knew that at the outset. If you fail to persuade the courts of your innocence, you should follow the advice of Socrates and 'endure in silence whatever [your society] instructs you to endure'.
If you really believe in justice and openness, that's what you will do.
I wish you the best
Grant

Green Effluent

Russell Norman's tirades against the Key government ('unstable, unethical, Muldoonist' and so on) have to be taken with a grain of salt, as it may not be long till the Greens wind up doing deals with conservative governments of the future. Don't believe me? Well, let's recall for starters that, during the 2011 election campaign, Dr Norman was the one showing off his credentials with small (petit-bourgeois) business and there was speculation about the Greens entering some form of support agreement with National after that election. Of course, that never came to pass. But, the signs of their emerging pragmatic conservatism are clear. Whereas, once upon a time, the Greens would have relished the leaking of an investigation into a spy agency, today they are insisting that such a leaker be brought to justice!
The real test for the Greens will come when they finally gain office, probably in coalition with Labour. The narrative is fairly predictable. A foreign-policy crisis emerges when one of our allies (probably the US) starts another of their dirty little wars and calls on NZ for moral support. Being smarter than the Alliance Party of the past, the Greens will find some 'humanitarian' or 'global responsibility' blather with which to justify the bombardment of innocents. Alternative 'flash-point' issues could be a 'free-trade agreement' or a mining proposal, but there'll be the same sleight-of-hand.
In the meantime, older radical greens calling for systemic political-economic change will have been sidelined in favour of a softer look more appealing to urban yuppies: 'environmentally responsible consumption', 'eco-friendly business', 'fair trade' etc will be the kinds of slogans one can anticipate. Oh, and don't let them forget, along the way, to knee-cap their grass-roots supporters at annual conferences!
Once the Greens lose office in their red–green coalition, the obvious political strategem is to try to move into centre-stage – rather than occupy the semi-redundant 'far left' (as John Key recently identified them) – so that they can begin to play one major party off against the other after elections farther off in the future. (Well, it worked for Peter Dunne!)
Wait, then, for the day when a Green Party blocks the formation of a centre-left government by agreeing to support National on the condition that a few blue–green initiatives (like insulating mouldy old houses) get thrown their way, and the Greens promise not to rock the free-market boat.
In a world where Green Parties have lost their radical ecological and emancipatory roots, such a pragmatic progression, in pursuit of power, is oh-so predictable. This is the only way that the Greens can achieve what has previously been impossible for small parties supporting larger ones in government in NZ so far: that is, to gain office and not to lose voters' support at subsequent elections (or, more precisely, to trade radical-left voters for the more numerous middle-income yuppy ones). The Greens can only survive a spell in government by taking this painful step towards the centre – a step that will undoubtedly cause them plenty more painful internal symptoms.
Is there a doctor in the House?

Peter Dunne's resignation as minister

Mr Dunne's resignation as a minister has been made on the grounds that he was unwilling to meet all the requests for information made by the investigation into the leaking of the Kitteridge report on the GCSB. This does not conclusively prove, but it does at least lend strong support to, the accusations made earlier by Winston Peters that he (Mr Dunne) was responsible for the leak. The report (out today) by David Henry into the leak isolates, by a process of elimination, Mr Dunne. The Henry report says that Mr Dunne was not prepared to show Mr Henry unedited texts of all of the 44 emails he sent to the reporter who revealed the contents of the Kitteridge report in the media.
Mr Dunne's resignation is appropriate. There is still a possibility that he personally was not responsible for the leak, even though he was in contact with the reporter. For example, he could be covering up for someone else. But the refusal to co-operate with Mr Henry is enough to justify his resigning, as it leaves a cloud of suspicion over him. And, as a minister, that is unacceptable.
The resignation does not resolve any of the concerns surrounding the continued recognition of his (now de-registered) political party in the House. He continues to sit as an MP, and, according to the Speaker, as leader of a party. But it's looking like his political career is approaching an end, as it is hard to see how he can survive the next election after this.

Recognition of United First

Now that the United First Party has been de-registered - and is seeking re-registration - as a political party with the Electoral Commission, should it still enjoy recognition as a party in Parliament?
Clearly, opposition parties think that it should not have recognition, and that Peter Dunne, leader of United First, should be treated only as an independent MP, and thus have his parliamentary funding as a party leader removed.
My first reaction was to agree with the opposition parties, but a closer look at the Standing Orders of Parliament is warranted. Registration as a party with the Electoral Commission (to stand for the general election) is administered independently from the Speaker's recognition of a party in the House. United First was presumably legally registered for the 2011 election, and Peter Dunne, its leader, was duly elected as a member. After the election, the Speaker recognised United Future as a party 'for parliamentary purposes' under standing order 34(1). To spell it out more fully, though: 'Every political party registered under Part 4 of the Electoral Act 1993, and in whose interest a member was elected at the preceding general election ..., is entitled to be recognised as a party for parliamentary purposes.'
Note that this recognition by the Speaker is for parliamentary purposes, and not for electoral purposes.
The Standing Orders are silent on what should happen if a party de-registers with the (independent) Electoral Commission in mid-term, thus jeopardising its eligibility to stand at the next election (as distinct from 'the preceding election').
But the phrase 'registered under Part 4 of the Electoral Act 1993' in standing order 34(1) is crucial. It was introduced with the 2011 amendments to the Standing Orders. Part 4 of the Electoral Act deals with the registration of political parties and the Electoral Commission's duties in that process. And 34(1)'s requirement of registration seems to apply in the present-tense, and not just for the (past-tense) purposes of 'the preceding election.'
So, if United Future is not presently registered with the Electoral Commission as a political party, then it cannot (for the time being) be recognised as a party for parliamentary purposes. This has consequences for the parliamentary funding that United Future may be entitled to. Even though the time that elapses between United Future's de-registration and its (probable) re-registration may only amount to a few weeks, a deduction from its MP's parliamentary funding could be called for.

Electoral Matters

This post is part of my submission to the 'constitutional conversation'.

How many members of Parliament should we have?

 There is no formula for answering this question. But I see no compelling reason to change the number at present. As the population grows, however, we need the option of increasing the number of members. If not, the alternative is either to increase the population-size of electorates (so as to limit their numbers), or to see the proportionality of parliaments decline (as the number of list seats reduces). A written constitution could provide a mechanism for rationally deciding on the number of MPs in future.

How long should the term of Parliament be?

 The public debate appears to be mainly around the options of either 3 or 4 years. In a unicameral system with minority governments, three years makes more sense, as it allows for more frequent democratic mandates and reduces the risk of governments losing confidence-votes and hence of early elections.

How should the election date be decided?

 It should not be the prerogative of the Prime Minister to decide on the election date (within the three-year maximum), as this gives the incumbent party an unfair political advantage and a constitutional power that is not strictly theirs to wield. Election-dates should be fixed – unless a government loses a vote of no-confidence or the Governor-General is forced for some other reason to dismiss a government before the fixed term is up.

What factors should be taken into account when the size and number of electorates are decided?

 As MMP has been reconfirmed by the 2011 referendum, then proportionality must be an overriding factor. The ability of citizens to approach their electorate MP in person is also important, and so the physical size and population of electorates should be taken into account. In as much as possible, electorate boundaries should reflect the geographic integrity of local communities.

What should happen if a member of Parliament parts ways with the party from which he or she was elected?

 See my earlier post on this topic in relation to one recent case.

 It does matter whether the MP is a list or an electorate member. If an electorate member, then, even though that member’s mandate to sit in the House comes on the back of his or her membership of a political party and is not purely a personal mandate, the member was personally elected and retains his or her seat. If it’s a list MP, then there is a stronger argument to say that the member should resign from parliament and be replaced by the person next on the party list.

 A defection from a party can adversely affect the party’s hard-earned proportionality in the House. And an independent member in the House may be less than effective and may or may not vote in line with his/her former party. This is unfair on the party that brought them into parliament in the first place.

 On the other hand, there is a concern that party leaders could use the threat of expulsion from caucus, and hence expulsion from parliament altogether, as an undemocratic means of silencing dissent. The public can, of course, make up their own minds about this and render their judgement on that party’s behaviour at the next election.

 On balance, then, list MPs who part ways (for whatever reason) from their party should automatically lose their seats in the House, to be replaced by the next in line on the party list.

 This should not apply to electorate MPs, however, as we are not able to judge to what extent their local-electorate victory was due to a personal following, or to a party affiliation. Either way, voters in the electorate have voted for that named individual to represent their electorate. Hence that MP’s party membership is not their sole claim on the seat.