Repeal of waka jumping law would help restore free speech in Parliament

RNZ
New Zealand First and the Green Party are back taking swings at each other - this time Winston Peters is saying James Shaw isn't a man of his word.

OPINION: The values of democracy and freedom are globally being eroded and tested after decades of improvement.

We see the decline this year in America, where rioters occupied Congress; in the military coup in Myanmar; and in China’s crushing of democracy in Hong Kong. The slippage is occurring worldwide according to measures published for 2020 by Freedom House and the Global Democracy Index.

New Zealand’s rating has dropped for the first time in 15 years. We have the opportunity to buck the trend this month and restore New Zealand’s reputation as one of the best democracies in the world.

Nick Smith wants repealed electoral law changes made in 2018 at the insistence of Winston Peters that enables an MP to be dismissed from Parliament for the views they express or the way they vote.
Fiona Goodall/Getty Images
Nick Smith wants repealed electoral law changes made in 2018 at the insistence of Winston Peters that enables an MP to be dismissed from Parliament for the views they express or the way they vote.

The issue we need to fix is the draconian electoral law changes made in 2018 at the insistence of Winston Peters that enable an MP to be dismissed from Parliament for the views they express or the way they vote.

READ MORE:
* 'Dead rat' regurgitated? Repeal of Waka Jumping law looks possible as Labour mulls position
* Greens will vote for waka jumping at third reading - but aren't happy about it
* Our democracy relies on waka jumping

A bill repealing this law was introduced in the last Parliament by former Speaker Sir David Carter with the support of National, ACT and Green MPs. It is now in my name and before the justice select committee, with a decision due by April 20.

The law has been colloquially referred to as the waka jumping law but equally applies to where a leader wants to throw a member overboard. It compromises free speech in Parliament, concentrates too much power in party leaders and contradicts our core Kiwi value of tolerating dissent.

There is no more important place for free speech than in our Parliament. This is recognised in the UK’s 1688 Bill of Rights. The Government acknowledged the law compromises free speech in Parliament, with the attorney-general saying it “will have a chilling effect on the expression of dissenting views by MPs”.

MPs like Derek Quigley, Marilyn Waring (above), Jim Anderton, and Tariana Turia had good reason to challenge their parties, says Nick Smith.
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MPs like Derek Quigley, Marilyn Waring (above), Jim Anderton, and Tariana Turia had good reason to challenge their parties, says Nick Smith.

The law is a stain on New Zealand’s proud democratic traditions. None of the top-20-ranked democracies have such laws. It would be unconstitutional in the United States, Canada, Australia, or the home of MMP, Germany. The countries that have these laws are sham democracies like Zimbabwe, Cambodia and Uganda.

MPs falling out with their parties can both be principled and opportunistic, but voters, not party leaders, are best placed to determine which it is. MPs like Derek Quigley, Marilyn Waring, Jim Anderton and Tariana Turia had good reason to challenge their parties.

We need to jealously guard the principle in a democracy that MPs’ accountability is to the public, not the party leader. If an MP has committed a serious crime and been found guilty by an independent court they are automatically dismissed.

Dr Nick Smith: ‘’. Proportionality is important but it is not immutable.’’
BRADEN FASTIER/Nelson Mail
Dr Nick Smith: ‘’. Proportionality is important but it is not immutable.’’

The premise of Winston’s law is that MPs changing parties is undemocratic and wrong.

Professor Elizabeth McLeay from Victoria University argues that MPs changing parties is an important part of the democratic process. Every party in the current Parliament was formed by MPs changing parties.

Sir Winston Churchill, widely recognised as the greatest Parliamentarian ever, changed party four times during his career. Laws that inhibit or limit the natural evolution of political parties actually harm rather than enhance democracy.

The justification that MPs changing party distorts proportionality is mistaken. Proportionality is important but it is not immutable. There are many provisions in the Electoral Act, like the 5 per cent threshold, that compromise pure proportionality.

The small variability in proportionality when an MP leaves a party is a lesser harm than turning MPs into unthinking robots that must follow the party line.

This law also compromises the foundational principle of New Zealand’s constitution, that the government of the day continues in office for as long as it enjoys majority support in Parliament. Professor Janet McLean of Auckland University rightly highlights that the prime minister could bypass this requirement by removing and replacing an MP who loses confidence in the government.

Repealing this law would remove its stain from New Zealand’s proud liberal democratic traditions. This depends on Labour, which now has an absolute majority.

It needs to listen to the five law faculties, four departments of politics, and three schools of history which all submitted strongly for repeal.

It would be good for New Zealand to have a political consensus on this constitutionally significant issue. MPs’ first duty is not to their party or leader, but to the people and their country.

Dr Nick Smith is National’s electoral law spokesperson and New Zealand’s longest continuously serving MP.

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