jhw submission 2011 election review 04 05 12

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2011 General Election and Electoral Referendum

Submission to the Justice and Electoral Select Committee from Jordan Williams

This is a submission to the Justice and Electoral Select Committee regarding its review of the 2012

general election and electoral referendum.

I am a solicitor at Franks&Ogilvie and took four months leave last year to be the full time

Spokesperson for the electoral referendum campaign Vote for Change. Vote for Change advocated

for the alternatives to the MMP voting system particularly the supplementary member option. This

submission is not on behalf ofVote for Change. Views expressed are my own based on that

experience. Assuming the Committee is hearing submissions, I wish to submit orally.

While the overall management of the electoral referendum process was conducted efficiently by the

Electoral Commission, I submit on five matters that could be improved on in its performance and the

design of the referendum:

(1) The decision to hold the electoral referendum with the election;(2) The inclusion of the MMP review in the Electoral Referendum Act 2010;(3) The Commissions electoral referendum advertising campaign;(4) The Commissions apparent censoring and subjective judgements on electoral referendum

advertisements; and

(5) Appearance of leaking to media from within the Commission.Decision to hold the electoral referendum with the election

In combination with the Rugby World Cup, holding the electoral referendum with the generalelection meant that the referendum did not get the media coverage in the final weeks of the

campaign for a proper public debate. Even with the considerable resources put into advertising by

the Commission, as well as vigorous campaigns advocating for and against MMP, the debate was

undercooked. Most New Zealanders did not understand the options when entering the polling

booth. In the final weeks of the campaign nearly all coverage of the referendum debate was

drowned out by the election (particularly after the infamous tea-gate episode).

The most obvious effect of the impending election was that MPs had a strong incentive not to

participate. Parties feared that participation would be an unwelcome departure from their own

campaign messages and risked votes. The Governing parties particularly discouraged their MPs fromparticipating in what should have been an important debate for our democracy. It meant that most

qualified to educate the public and explain the pros and cons of the various electoral systems were

largely silent.

I submit to the Committee that it recommend that future electoral referendums be held separately

from general elections. That might come at the price of turnout, but on balance a more engaged

public having had thorough coverage by the political media is preferable to a referendum being

tacked onto a general election process with little public discussion by MPs.


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The inclusion of the MMP review in the Electoral Referendum Act 2010

During the electoral referendum campaign Vote for Changeargued strongly that the review was

flawed for two reasons. Firstly, politicians will determine what (if any) changes occur with no

guarantee those changes will be put to the public to vote on. Secondly, Parliament has set such

limited terms of reference that little can result to fix MMP anyway.

Research conducted for Vote for Change suggests that the review was a strong influence for around

a third of those that opted to keep MMP. Our feedback suggests that many of those hoped for a

watered down version of our current MMP system with changes that would:

(1) Reduce the number of list MPs;(2) Keep small parties represented in Parliament but reduce their perceived disproportionate

power in law-making and government formation;

(3) Strengthen local electorate democracy, reducing the likelihood of rejected electorate MPsfrom returning to Parliament on party lists.

I submit that the real loser from the inclusion of the review was the moderate options of

supplementary member and single transferable vote. Had New Zealanders not had what many

perceived as the easy option (the review) SM and STV could have been more carefully examined.

One may have been judged as offering the above watered down features of MMP.

The Commissions electoral referendum advertising campaign

Anecdotal feedback from members and supporters ofVote for Change strongly criticised the

Commissions educational campaign on the electoral referendum for focusing too much on online

content and referral to its websitewww.referendum.org.nz. I understand that many of the full page

advertisements in the major daily papers were mostly pictorial and referred readers to the website

for the substantial information. While visible, that approach was poor for a public education

campaign. Those taking the proactive step of looking up the information online were likely to find

the information using online tools anyway.

The Commissions theres a referendum find out about the options at this website message can be

compared with the effective educational approach taken by NZTA for the recent changes to give way

rules.

I submit that while online media has its place, the Commission should ensure that dollars used ontelevision and print advertising be stand-alone and providing the material information rather than

primarily use for visual content directing readers to online information.

The Commissions apparent censoring and subjective judgements on electoral referendum

advertisements

While the Commission had an interest in ensuring that accurate information on the electoral

referendum and the various options were presented to the public, I submit that the Commission was

too willing to make subjective judgements on the content ofVote for Changes advertisements. In

particular, the Commission objected to a particular diagram pointing out that the alternatives to

MMP couldwork with less than the current 120 MPs. The Electoral Referendum Act 2010 made
http://www.referendum.org.nz/http://www.referendum.org.nz/http://www.referendum.org.nz/http://www.referendum.org.nz/


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clear that for the purposes of the 2011 electoral referendum all options would result in a Parliament

with 120 MPs.

Vote for Change pointed to academic and official documents (including reports of the Justice and

Electoral Select Committee) that to function properly MMP requires 120 MPs, while the other

systems could work with fewer. Vote for Change offered to make a public statement making clear

that all of the options available in the referendum were based on 120 MPs. The organisation was

also willing to add additional material to online versions and future print runs with a statement

making clear that the reduction of the number of MPs was not an option in the 2011 referendum.

Despite those offers to clarify, the Commission demanded a removal of any reference to 99 and 120

MPs. The Commission was unable to point to any legislative justification for its demand.

I submit that the Commission was acting ultra vires, was wrong in fact, and damaging the public

debate by demanding retraction. Particularly I am concerned that the Commission was willing to

label Vote for Changes advertising misleading in comments to the media. The fact that the adoptionof a different system after a further constitutional change could result in the reduction of the

number of MPs was a completely valid consideration for electors. The Commission seemed to be

putting effort into preventing any comments on a particular matter of debate.

To be clear, the statements were not misleading or false. In themselves they were perfectly

accurate. The Commission had the view that the statements implied that the number of MPs was a

matter for decision at the 2011 referendum. Vote for Change neither stated that nor did it think that

was implied. The Commission had no reason to attack the organisation publicly in light ofVote for

Changes offer to provide extra information in its advertisements to make the point less open to

misinterpretation. The Commission had no basis on which to demand retraction.

The Commissions views might have been genuinely held, but its role is not to adjudicate the content

of election / referendum content. On that basis claims such as the Conservative Partys every vote

counts slogan could have also been targeted. As far as I am aware it was not (nor should it be by a

public body).

There had been little enough informed public debate about the merits of the alternatives to MMP,

and the Commissions actions against Vote for Change could have had the unfortunate effect of

dampening that debate further.

I submit that the Commission should be cautioned for its interference with campaign material.

There are other agencies for judging such matters. A complaint to the Advertising Standards

Authority on the same advertisement was rejected, only days before the Commission criticised Vote

for Change publicly.1

Appearance of leaking to media from within the Commission

I submit that the Committee should seek from the Commission assurances related to its information

security. I was interviewed by two journalists for TV and print three days before the official results

1

Vote for Changeagreed to made a minor, unrelated alternation. The complaint identical to the Commissionsobjection was rejected by the ASA. The ASA agreed with Vote for Change that the number of MPs was a

legitimate consideration for the public for the purposes of the 2011 referendum.


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were publicly available. In both cases the reporters knew the final result to the tenth of a percentile.

I understand that journalists and bloggers were also aware of the final results of the Waitakere

electorate recount well before the information was publicly announced.

Leaks and/or careless information management (if that in fact occurred) can be a sign of an

unhealthy culture or lack of professionalism in an organisation. Given the Commissions role in

enforcing electoral law this risks the Commissions reputation. The Commission should enquire into

the matter to ensure that it retains the highest reputation of integrity and conduct.

Yours faithfully

Jordan Williams

[email protected]
mailto:[email protected]:[email protected]:[email protected]

jhw submission 2011 election review 04 05 12

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