Despite a late and distinctly inauspicious start, the constitutional review set up last year may yet deliver New Zealand from the tyranny of the three year electoral cycle.
A quick reading of the review's Terms of Reference would indicate that this is the likeliest and the most useful result we can hope for. But it is by no means guaranteed as it will require a fundamental shift in mind-set from the voting public. Ballots in 1967 and 1990 on extending the parliamentary term to four years were resoundingly rejected.
No real surprise there. Voters are naturally wary of yielding more power to the politicians. But there is a point at which voter sovereignty has to be balanced against intelligent and effective government – and the international evidence would suggest that the three year term may be on the wrong side of that balance.
Of the 34 countries in the OECD, 22 have a four year term for their lower house and seven a five year term.
The outliers are the United States Congress which has a two year term and New Zealand, Australia and Mexico which have three year terms. But the US, Mexico and Australia all have bicameral systems with an upper house which sits for six years. Further, all of the state governments in Australia with the exception of Queensland have four year terms.
It is not even as if these countries know something that we don't.
The 1986 Royal Commission concluded that a four year term would be the better option – but only if more constraints were available on the power of the executive. MMP has since delivered those constraints (although we cannot factor this into the equation until we know whether MMP will survive the referendum process scheduled over the next two elections and, if it doesn't, what will replace it).
The hamster wheel nature of the three year term and its debilitating effects on our political culture are well-understood. The first year in office is typically dominated by ostentatious list-ticking as the government delivers on its key election commitments – whether or not they still make fiscal sense, or ever made sense. Most of the third year is also often wasted as difficult decisions are shelved and the attention of MPs is increasingly drawn away from the House and from the business of government.
It was these behaviours which Sir Geoffrey Palmer was no doubt referring to when he described the three year term as "the greatest enemy of good legislation". There is also a qualitative argument about whether voter control is best achieved through regular elections or through allowing time for policies to bed in so that we can make a more informed judgement about the calibre of the governance on offer.
This matters because good policy provides the framework for productivity growth and bad policy undermines it. And as Nobel prize-winning economist Paul Krugman famously said: "Productivity isn't everything, but in the long-run it's almost everything".
However, there is a powerful instinct working against the logic of these arguments – and it shows whenever we are asked to support any change which might give our MPs more security of tenure.
The two referendums on a four year term were defeated by more than two votes to one while the 1999 ballot to reduce the number of MPs from 120 to 99 won 81% support. There was a large "up yours' impulse at work in each of these votes. But we may be scoring an own goal by keeping our MPs on such a short leash because it means that we can really only judge them on personality and rhetoric rather than on results.
To turn around such apparently entrenched attitudes will require a lot of energy which the review, at least at this stage, seems ill-equipped to provide. It is referred to – tellingly – in the confidence and supply agreement between National and the Māori Party under the heading 'Status of the Māori seats' and began life as a contrivance to allow them to paper over their sharply divergent views on this issue.
It was also slow to get off the ground; it was supposed to have been set up early last year but was not established until 8 December. And its relationship with the review of the electoral system is messy and uncoordinated with both reviews geared toward final resolution by the electorate in the 2014 election.
The timetable for the constitutional review is to have the cross-party reference group report to cabinet before the end of 2013. However, unless MMP gains clear majority support in this year's referendum, it will have to go into a run-off ballot in 2014 against the most preferred of the other options – First Past the Post, Preferential Vote, Single Transferable Vote or Supplementary Member.
This will potentially put poor John and Jane Public in the invidious position of having to vote on important constitutional issues relating to the size of Parliament and the length of the Parliamentary term, and whatever else spills out of the review, without knowing what electoral system will apply and vice versa although – clearly – one bears very heavily on the other.
Andy Nicholls is a partner at Chapman Tripp. The views expressed here are his own.
This article first appeared in The Dominion Post on 25 May 2011.
The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.
