The dangers of the waka-jumping bill

Some big principles are at stake over the Electoral Integrity Amendment Bill, which is about to be debated in Parliament's justice committee. Better known as the waka-jumping – or anti-party-hopping – law, the new rule is intended to stop MPs resigning from the parties they were elected under and then staying on in Parliament. Its critics say the law could also be used by parties and leaders to expel difficult MPs from Parliament.

The rights and wrongs of the proposed law mostly boil down to how you feel about dissident MPs in New Zealand politics. How much leeway should they be given? Should they be encouraged or discouraged? Should dissenting MPs be clamped down on or given some freedom to diverge from party lines, perhaps even to the extent of leaving their parties?

Recent debate over the waka-jumping bill has focused on whether the Greens should support the legislation or not – see Derek Cheng’s report from last week: Green Party may have to support waka-jumping bill. It seems the argument over principles is causing tension in the party, and even becoming an issue in the race for the co-leadership – see Cheng’s Julie Anne Genter says Green Party needs a 'big debate' about supporting waka-jumping bill. 

Arguments in favour of the waka-jumping bill
Although the Electoral Integrity Amendment Bill looks likely to be passed into law soon, as yet there has been little attempt by its supporters to make the case for the legislation in the public sphere. Until recently only one significant media article had made the case for the need for the bill – by the prime instigator of the bill, Winston Peters. Mr Peters’ case centred on the importance of proportionality. He says: “The so-called ‘waka-jumping’ bill protects the uppermost value in a proportional electoral system, namely proportionality, and we believe that decision should always be the preserve of voters, not politicians” – see: his opinion piece, 'Waka-jumping' bill makes our democracy more responsive to MMP.

The absence of supporting voices was highlighted by blogger Gwynn Compton, who lists what “articles and blogs have been written about the waka jumping bill and categorises them as to whether they are for or against it” – see: Winston Peters alone on Waka Jumping Island. The result was striking: one article in favour (by Winston Peters), and 23 opposed. Mr Compton – himself an opponent – commented: “I can't think of a situation in recent memory where there has been such an overwhelming consensus of opinion against a bill as this. Notably, the New Zealand Herald, Fairfax and the Otago Daily Times all strongly oppose it too.”

More recently, however, other voices have bolstered the case for the bill. Last week, Chris Trotter wrote in The Press that the debate is quite simple: “Who could seriously oppose the idea of penalising politicians who head off to war in the coat of one army only to turn it when the heat of battle grows too hot?” – see: No matter whether you're red or blue – you must keep paddling in your own canoe. 

Mr Trotter is firmly on Mr Peters’ side, asserting the importance of proportionality in Parliament: “It is, quite simply, unethical to upset the balance of the House of Representatives by giving another political party, or parties, votes that they did not win.” He sees waka-jumping MPs as carrying out “constitutional vandalism” when they split from their parties but remain in Parliament. And he makes the good point that New Zealand elections are really “party elections”, in that MPs are generally only in Parliament due to their party membership: “Candidates have taken their parliamentary seats not on the strength of their character and ability but courtesy of the political colours they stand under, and the support those colours attract.”

Political scientist Jack Vowles of Victoria University of Wellington also makes this argument, saying that government is also very much based on political parties in New Zealand: “Parties govern on the basis of commitments they have made and the confidence their voters have placed in them to govern effectively. But they cannot govern effectively if they are divided internally and if MPs can decide to jump ship whenever they wish” – see: The case against ‘party hopping’. 

Mr Vowles adds that there’s nothing necessarily wrong with MPs leaving their parties – especially if they believe their party has shifted away from its values or commitments – but he argues that, if this is the case, MPs should resign from Parliament and test their arguments with electors. He says electorate MPs can do this with a by-election, and list MPs can do this at the following election with a new party from outside Parliament. 

Arguments against the waka-jumping bill
The strongest argument against the proposed bill is not actually about the rights of MPs to jump ship but about the consequences the rule will have for dissent and difference amongst MPs in Parliament. Many fear the law will lead MPs to be even more conformist while increasing the power of parties and their leaders to keep a lid on any dissent in their caucuses. This is because the law will hand a weapon to leaders to expel any MPs in their party from Parliament. In this sense, it’s not about waka-jumping at all – it’s about giving parties the right to eject troublesome or non-conformist MPs from Parliament against their will. 

This argument has been best made by National MP Nick Smith, who is worth quoting at length: “It will enable party leaders to dismiss MPs from Parliament. It risks turning our parliamentarians into party poodles. An MP who questions a policy, criticises a leader, or votes differently from their party faces dismissal from Parliament by their party leader. This is a fundamental change to the centuries-old principle that the public alone gets to hire and fire MPs. The greatest harm would be to stifle debate and further concentrate power with political parties and leaders. Our Parliament is already much more rigid along party lines than most western democracies. Dissent and debate are essential ingredients to a properly functioning democracy” – see: House of representatives or party poodles? 

Many on the left have made the same point. For example, former Green MP Keith Locke says that bill is “misnamed” and “should be called the Party Conformity Bill because it threatens MPs with ejection from Parliament if they don't conform to party dictates” – see: Party-hopping bill is a restraint on MPs' freedom of speech.

Mr Locke says it’s safer to leave the matter to the parties themselves, or voters at the next election. And he provides a recent example of MPs who could have been adversely affected if the law had been in place: “Green MPs Kennedy Graham and David Clendon publicly calling for the resignation of co-leader Metiria Turei. They were then excluded from the Green caucus and could have then been ejected from Parliament.”

He also makes a strong claim: “The bill contravenes the New Zealand Bill of Rights Act provisions guaranteeing freedom of speech. The idea that individual MPs should be legally restrained in what they say is abhorrent in a parliamentary democracy.” And perhaps ironically, this argument appears to be actually backed up by Attorney-General David Parker who has published his obligatory Bill of Rights Act assessment of the bill, which says the fact that “the prospect of facing an enforced departure from Parliament will have a chilling effect on the expression of dissenting views by MPs.” 

Nonetheless, Mr Parker has signed off on the bill, arguing “The impairment of the rights [of MPs to freedom of expression] is significant but there appears to be no alternative way to restore the proportionality of political party representation in Parliament, other than by removing the member who has distorted it.” This is reported by Derek Cheng in his article, Attorney-General David Parker defends waka-jumping bill, despite 'chilling effect' on MPs. 

Constitutional law expert Andrew Geddis also worries about the potential cost of the bill “to our wider system of parliamentary democracy” and raises the question of whether such legislation is actually necessary – see: Well you picked your tree, now bark it up. He explains: “This approach puts an awful lot of power into the hands of a party leader (assuming that she or he still has the backing of her or his party). And where there is power, then there is the temptation to use that power in ways bad as well as good. Of course, a cynic might speculate that these dual effects – freezing representation in place and empowering the party leadership – are exactly what Labour and NZ First intend.”

In another blog post, Geddis questions some examples used by Winston Peters in selling the bill, suggesting history is being rewritten to suit his arguments – see: Who controls the past now, controls the future. He points out that in the past MPs have left their party, resigned from Parliament, fought in by-elections, and the Labour Party has complained about the “unnecessary waste of taxpayer money” in running these contests, which are often largely uncontested by other parties. So “why exactly move to make such processes mandatory today?”

Fellow legal academic, Edward Willis of the University of Auckland, wrote on the matter last week – see: Waka jumping – has electoral integrity jumped the shark? Willis is unconvinced the bill will achieve its stated purpose and "enhance public confidence in the integrity of the electoral system."

It’s all about party leaders wanting to increase their monopoly on power, according to Gwynn Compton. He makes the case that “the ability of an MP to leave their party and remain in Parliament” is an important constitutional safeguard – see: You should be concerned about Winston Peters' Waka Jumping Bill. 

New Zealand’s democracy has few constitutional safeguards, or “checks and balances” against power being misused. And Mr Compton says this will simply remove one more, especially for list MPs who, unlike electorate MPs, will be unable to seek a new mandate through a by-election. Hence: “preserving that ability for list MPs to be able to go against their party is an important check on the immense power we give our Parliament during its term.”

According to most of these critics, the answer is simply to leave the fate of party-hopping MPs to voters at the next election. So electoral reform campaigner Phillip Temple argues: “Voters decide at the following election whether or not that dissenting MP should remain in Parliament” – see: Waka-jumping Bill denies democracy. 

Temple also points out party-hopping laws are not normally used in other MMP parliaments: “For almost 70 years an individual MP’s freedom of conscience has been safeguarded in Germany. A party-hopping bill there would, in fact, be unconstitutional. The Scottish parliament is also elected under MMP and freedom of conscience is protected there, too.”

This argument is also made by others. Keith Locke says “No other Western democracy has laws to stop party-hopping.” And National’s Amy Adams says: “We will join the ranks of countries like the Democratic Republic of the Congo, Angola, Namibia, Rwanda, Uganda, the Philippines and others” – see Craig McCulloch’s 'Waka-jumping' bill will hurt NZ's reputation – National. 

Similarly, Nick Smith draws attention to the fact that the respected Inter-Parliamentary Union is damning of party-hopping laws, saying they create “political party dictatorships.” And he claims that “courts in Europe have struck down such laws as unconstitutional.” 

Sue Bradford – another former Green MP – has been scathing of the impact the proposed law could have on the diversity of political parties. Current rules and institutional arrangements of New Zealand’s democracy make it almost impossible for new parties to establish themselves and make it into Parliament, and this law will add to the barriers protecting the existing parties from competition: “At the moment it is virtually impossible for a new party to break through from nothing to the required 5% unless there is at least one sitting MP among the ranks” – see: My old party is betraying its own proud history on the waka-jumping bill.

Ms Bradford quotes former Green Party co-leader Rod Donald, saying such laws “stifle democracy.” She says he said the 2001 version of the law would “impose the most draconian, obnoxious, anti-democratic, insulting piece of legislation ever inflicted on this parliament.”

Probably the strongest argument against the impact of anti-party hopping laws on preventing new parties being established is made by former TOP dissident, Jenny Condie, who says “We should be making it easier for new parties to enter Parliament, not harder” – see: Our democracy relies on waka jumping. 

Ms Condie points out that, “In the history of MMP in this country, no new party has ever entered Parliament without first leaving an existing party. Put another way, every party in Parliament other than National and Labour was started by a waka jumper.” She says she would simply prefer that the 5% MMP threshold was lowered, to allow new parties a better chance to prosper, but “In the absence of such changes, the waka jumping legislation will make it ever more difficult for new parties to enter Parliament. This may be an unintended consequence, or perhaps this is the real intention of the bill?”

Of course, Ms Condie was pushed out of her own party, and says: “As someone who has spoken out about a party behaving in a way that is contrary to its stated values and been sacked for it, I naturally believe protecting the ability of individual MPs to act as whistleblowers is important.” 

Ms Condie’s article is also very useful for explaining Winston Peters' role in pushing for anti-waka-jumping laws. She argues that originally the New Zealand First leader was a supporter of MPs switching parties, and she quotes Mr Peters arguing in favour of waka-jumping in the mid-1990s. But then she says Mr Peters went “from a vocal defender of waka jumping to its harshest opponent, crusading to have it outlawed.” Her own explanation for this shift is simple: “It turns out Winston was happy with waka jumping, as long as he was the one benefiting from it.”

According to David Farrar, Winston Peters “wants the power to expel MPs. Because he always falls out with his MPs” – see: The real reason Winston wants the ability to expel MPs. Mr Farrar claims that “over half of his former NZF colleagues had serious fall outs with him” and he lists 18 former NZ First MPs Peters has supposedly fallen out with.

Therefore, the real problem that needs fixing, according to Liam Hehir, lies in New Zealand First rather than New Zealand’s constitution – see: The case for ‘party hopping’. Mr Hehir also makes the case that it’s not always dissident MPs who are the problem but the parties themselves in breaking their commitments to voters, and he provides some recent examples suggesting there are a number of current MPs who might be within their rights to resign from their parties. 

Finally, it’s worth pointing to the three newspaper editorials on the subject – all of which criticise the bill. The New Zealand Herald says the bill is unnecessary – see: Waka jumping law shouldn't be necessary. The Dominion Post says party leaders are too authoritarian in their inclinations to be given this extra power, and voters are the best judge of party-hopping MPs – see: Waka-jumping bill gives too much power to party leaders. The strongest editorial is from the Otago Daily Times, which says that the bill is simply for the benefit of Winston Peters to maintain discipline in his own caucus, and Labour and Greens should be ashamed to support it – they are being spineless and they know the implications of this bad bill but are backing it nonetheless – see: Bill attacks democracy.