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Longer parliamentary term won’t curb government power, experts say

23 Feb 2024

| Author: Reweti Kohere

Extending our parliamentary term from three years to four will not fix the problem of governments having too much power, according to an electoral law expert. Graeme Edgeler says that without any of the hallmark checks and balances seen elsewhere in the world, and provided the confidence of the House of Representatives is continually retained, governments can do what they want as the New Zealand system has been set up “almost uniquely” to foster executive action.

“It’s a problem we can’t solve by going to a four-year term. It’s a problem we solve by having a stronger government backbench. The way you have that is probably [having] 300 MPs and that’s never going to happen.” Empowered to implement an agenda without too many of the usual measures of accountability – a constitution that is supreme law, an emboldened backbench, giving courts the power to strike down unconstitutional laws and an upper House – New Zealand has designed its constitutional system in favour of a strong centralised government, Edgeler says.

“Every time we ask, ‘should we choose the option which gives the government power or the parliament power?’, we say ‘we’ll give the government power’. ‘Should we choose the option which gives the government power or the courts power?’ We choose the government. ‘Should we choose the option which gives the government power or voters the power?’ It’s the one time we say, ‘no, we’re going to have a short term so that voters get a bit more of a say’,” he says.

 

Parliamentary term

Dwarfed by the government’s more controversial plan to legislate new definitions of the principles of te Tiriti o Waitangi, the proposal to extend Parliament’s term is another of the government’s plans for constitutional reform. National has promised Act and New Zealand First that it will consider a four-year term with any resultant bill coming into force only should voters back it in a referendum.

Under the coalition agreement with Act, National has promised to pass party leader David Seymour’s Constitution (Enabling a 4-Year Term) Amendment Bill through its first reading by February 2025. A distinctive feature of his bill is that so long as the government hands control of select committees to the opposition after an election, and on the advice of the prime minister, the governor-general may extend Parliament’s term to four years.

Parliament’s three-year term is set down in s 17 of the Constitution Act 1986 – an entrenched provision meaning any amendments must be approved by either three-quarters of MPs or 51% of eligible voters in a referendum. The parliamentary term in New Zealand can be even shorter than three years – the prime minister may call a general election at any time within this period.

 

Possible solutions

Edgeler would like to see a stronger backbench of government MPs, although he admits that making it a reality would be difficult. There is a much greater expectation in New Zealand, which is reinforced by the political parties’ whip systems, that MPs will tow the party line.

“The most important thing that could happen would be for the particular MPs who are in the government backbench to grow a backbone. It’s not a rule change and it’s not a law change. It’s a cultural change. Everyone who gets elected in New Zealand thinks they can be a minister. In the UK, you’ve got a bunch of MPs who know they will never ever be in cabinet – no matter what,” he says.

“If they work really hard, they can be the chair of a select committee that holds the government to account and that is something they work to achieve. It’s not something that MPs in New Zealand see as something to aim for. And if we had 300 MPs, it would be.” Another possible solution is that governments should be able to use urgency, a parliamentary process that enables laws to be rushed through the legislative process, only if they can command a supermajority in the House. Edgeler says making it harder for governments to “completely skip” select committees would be an obvious change to ensure better legislative scrutiny.

His other suggestion is inspired by the Epidemic Response Committee: Covid-19. Established in March 2020 to consider and report to the House on matters relating to how the government was managing the coronavirus outbreak, the special select committee was chaired by then Opposition leader, National’s Simon Bridges, and commanded an opposition majority.

Edgeler says the committee’s primary purpose was executive oversight – something he’d like replicated in less extraordinary times. “It seemed to work so create a committee like that. It’s got an opposition majority, it can actually inquire into things, it does not have the job of looking at legislation but its job is oversight of spending or the executive.”

 

Human nature

The electoral law expert isn’t the only lawyer who is sceptical about suggestions that a longer parliamentary term will lead to greater accountability by the government. Auckland University Professor Mark Henaghan doesn’t support the proposal, arguing that an additional year would make it harder to hold a government to account.

Democracy requires accountability, he says, and the best form of that is the ballot box. The mixed member proportional (MMP) voting system, with its emphasis on better political representation and electoral proportionality, was adopted in 1996 partly to provide a better check on politicians who were used to unbridled power under the first-past-the-post system.

It’s a point the 1986 Royal Commission on the Electoral System discussed in its nearly four-decade-old report recommending the adoption of MMP. In its chapter on Parliament’s term, the Royal Commission concluded it wasn’t prepared to recommend a four-year term because of the “relative lack of restraints on the power of New Zealand governments”. However, the proposed change to MMP could be one such restraint as there was an increased likelihood that a government formed from significantly greater consultation between parties would represent at least half the electorate.

Henaghan says: “If you extend the term, then I do think it’s human nature [that] the longer people are in power, the more of a sense of entitlement they get and the more hubris they have.” While it’s argued that an additional year could afford governments more time for long-term planning, Henaghan says greater bipartisanship over infrastructure deficits, roading and transport and good schools and hospitals would make a bigger difference to New Zealand’s future direction. “There may be differences in how we do criminal justice, there may be differences on the edges, but there should be some big-picture things where we start to say, ‘this is a need for everyone in our society’. I think that’s a good thing.”

Good test case

The proposal to extend Parliament’s term is not new: New Zealanders have voted in two referenda in 1990 and 1967, with more than two-thirds of voters on both occasions deciding not to allow lawmakers more time in their jobs. But public support seems to have switched recently in favour of an extension and MPs appear to be in favour of it too. A survey at the end of 2020 showed just over six out of 10 New Zealanders supported moving to a four-year term.

New Zealand’s politicians, past and present, also appear supportive. During the first 1News leaders’ debate in September 2023, National leader Christopher Luxon said he had “a lot of appetite” for a four-year term, while Chris Hipkins, then Prime Minister, said he believed in it too. During the 2020 election campaign, then Prime Minister Jacinda Ardern and Opposition leader Judith Collins expressed support for an extension. And former Prime Minister Sir Geoffrey Palmer has championed the cause as well, alongside strengthening Parliament’s processes and independence.

Parliament isn’t the only authority in the spotlight. Local Government New Zealand President Sam Broughton, who is also mayor of Selwyn District, has suggested a four-year term for councils would be a good test case for the country’s primary egislative body. The recent Independent Electoral Review panel reviewed Parliament’s term as part of its broader look at the electoral system and made an interim recommendation last June that a referendum should be held. Handed the panel’s final report in November, Justice Minister Paul Goldsmith last month made it public and said the government had already committed to introducing Seymour’s parliamentary term extension bill.

 

100-day plan focus

LawNews asked Seymour, who is championing the bill, for more procedural details of his proposal, but was informed by a spokesperson that the matter had been passed to Goldsmith. In a statement, the minister didn’t address LawNews’ specific questions but confirmed the government would support Seymour’s bill to select committee. “No decision has been made at this stage about a referendum, including if or when it may be held. Any bill on the term of Parliament or details of a referendum will be agreed by Cabinet. As part of this process, there will be opportunity to discuss any proposed policy settings with both coalition partners,” Goldsmith said.

“Currently, we’re focused on our 100-day plan but we will be working together to progress this in the future. The government will make a formal response to the Independent Electoral Review in due course and it’s important the public can see the final conclusions before I comment on specific recommendations.”

New Zealand First’s coalition agreement makes clear the party wants parliament’s term to go to a referendum as well. Goldsmith confirmed to RNZ the government is planning to deal with both coalition promises in the same bill. Whether the bill progresses beyond the select committee stage is unclear; Goldsmith has said National is yet to take a position on a four-year term.

 

Direct democracy

Around the world, three-year parliamentary terms are rare: New Zealand joins El Salvador and Nauru as the only unicameral states to have them. In contrast, 49 countries with only one legislature have four-year terms.

The explanatory note to Seymour’s bill states that New Zealand’s short electoral cycle is not conducive to good lawmaking. Most of the current three-year period is taken up by the legislative process, which encourages governments to compress their legislative agenda to make the most of the short runway, “which creates poor conditions for following good process”, the note states.

“Extending the term by a year would remove one element of pressure on the law-making process and allow for a more considered approach. However, it is important that this change goes hand-in-hand with improving the checks and balances on executive government by improving parliamentary oversight”, such as by ensuring select committees “stand at arm’s length from the government”, it states. Michael Swanson, a PhD candidate in politics at the University of Otago, agrees with the rationale. “Just arguing that it should be extended out to four years and not talking about anything else and leaving it in a vacuum is a bad idea,” he says. “It’s about [asking] ‘what other things do we need to be considering at the same time to ensure we have the best democratic processes and accountability measures in place?’”

In his view, “direct democracy” initiatives are a good place to start. Some of them, such as town-hall meetings and citizens’ assemblies, must come from Wellington, Swanson says, while other measures are already within New Zealanders’ hands, such as referenda and citizens’ initiatives. Taking the top-down suggestion of town halls, Swanson says people can already force MPs’ hands by drumming up public support for greater face-to-face accountability. However, such meetings in practice are “often highly mediated, highly moderated and can be over-controlled by comms teams. There’s a real balancing act there. How can we get the most out of this without it being just a comms exercise?”

 

Crossing the line

It is unlikely a referendum will be held before the 2026 election and, if successful, the earliest a four-year term could start would be after the 2029 election. The Independent Electoral Review panel recommended civics education should accompany any potential referendum to help voters understand the issue. Swanson says a real gap exists in civics education more broadly across all ages. “Your average person probably doesn’t quite get the way that they can engage with [Parliament] – and that’s by no fault of their own. It’s just that it’s not made obvious and easy. People generally equate civics education with school but actually, we need to do a whole lot of work to backfill a lot of the gap that has been left by not doing it for the past 60, 70 years.”

Henaghan agrees with the need for better civics education. “If everyone knows there is accountability right from the start, then people don’t cross the line. The minute they do, they’re held accountable,” he says. “No one political belief will ever solve the problems of the world. It’s the mixture of views and the accountability of saying ‘no, we don’t agree with that’, which keeps things in check. Otherwise, it would be just like North Korea or Russia.” ■

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