Electoral integrity

Last week, the second reading of the Electoral (Integrity) Amendment Bill occurred in the House of Representatives. I am against the Bill, especially in its current form. The effect of the Bill, if it becomes law, will be to empower the hierarchies within parliamentary political parties to expel MPs who do not toe the party line. This preserves political party proportionality in the House in the very literal sense that each party can retain the same number of seats it won on election day, even if it has to get rid of the odd MP or two in order to do so.

My key concern with the Bill is that it conflates issues of party politics (and proportionality as locked in at the last election) with effective representation, and so actually risks harming electoral integrity despite its name. But I’m open to good arguments that show the benefit of the Bill’s proposals. I said as much in my Select Committee submission on the Bill. So far, however, no genuine, credible case for the Bill has been made.

That’s part of the reason I was keen to read the Government speeches in support of the Bill as part of the second reading. Evidence before the Select Committee was strongly indicating that the Bill was poorly conceived, and so the second reading provided the government with the opportunity to respond to that criticism and present its case. That case, as presented, is unfortunately not strong at all.

Andrew Little, the Minister responsible for the Bill, had the best go at defending it. I want to quote the opening lines from his speech, as reported in Hansard, which I take to be his key point:

“It's a great pleasure to take this opening call in the second reading of this piece of legislation, because it does a very fundamental thing in our democracy. It affirms the very basic principle of MMP, which is that proportionality of party representation in Parliament is everything, and it reaffirms the point that the electorate, and only the electorate, determines the make-up of Parliament. There's a corollary to that: it, further, affirms that no individual MP on a whim can change the proportionality of representation of parties in Parliament. That is what it does”.

It is the idea that “proportionality of party representation is everything” in particular that I want to question. Parties are important means of connecting voters to politicians in our electoral system, but to suggest that they are “everything” is a bold claim. As a constitutional law expert, it’s not a claim that I think can be reasonably substantiated. Representation is important, but representation is a multifarious concept that certainly doesn’t end at with the political party. It also involves, in my view, individual MPs taking on causes and looking out for the interests of voters over and above the expectations of the political parties to which they belong.

As I argued before the Select Committee:

"[T]here is no simple way of distinguishing in the minds of electors between the political party in an abstract sense from the candidates who make up the party membership. It is more plausible that electors vote both for the party in an abstract sense (including the promised or anticipated policy position and perceived values of that party) and for the individuals on the ‘list’ produced by the party. This means that both the individual Members of Parliament and the parliamentary party have responsibilities to the electorate. These responsibilities may diverge (or be perceived to diverge) without any kind of impact that we would usually associate with undemocratic government."

In short, both parties and MPs matter for representation, and for electoral integrity.

There are two points worth making in light of the above discussion. The first point is this. If the best argument for the Bill is that “proportionality of party representation is everything”, then the Bill is a bad idea because that is, with respect, a terrible argument. For a start, it is a very blunt position to adopt in respect of a nuanced issue like electoral integrity. Further, it’s unlikely to be true as a matter of principle or of practice. And finally, it falls into the very trap of conflating electoral integrity with political party proportionality, which I and many others have already warned lawmakers against.

The second point worth making is that the effect of the Bill will be that it does make sure that “proportionality of party representation is everything”. In doing so it will, I think, change the fundamental principle underpinning our system of democratic representation. Little implies that the Bill confirms an existing position, but that doesn’t accord with the reality of this proposed legislation or our electoral system. When such important changes are made to our constitutional framework, the usual expectation would be to seek bipartisan political agreement to the change. This hasn’t occurred in this case, presumably because doing so would require some compromise on the part of the government. But an unwillingness to compromise simply signals that the government is willing to treat a constitutional amendment as a matter of bare politics, or at the very least that it doesn't understand the significance of what it is proposing. That gives rise to process issues independently of the poor substantive outcomes that the Bill is seeking to achieve.

In the absence of any plausible argument in support of the Bill in its current form, and in light of these significant concerns, the case for abandoning it seems particularly strong. I can only hope that all parties in government reassess the merits of the Bill before it is passed into law.

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