Wed Apr 10

NZ’s government is relying on executive power to govern – that’s not how MMP was meant to work

Written by: Richard Shaw, Professor of Politics, Massey University

Thirty years ago, frustrated with wild swings of the policy pendulum and the arrogance of successive Labour and National governments, New Zealanders changed the electoral rules ^[1].

The old first-past-the-post (FPP) electoral system was replaced with the mixed member proportional system (MMP ^[2]). At the time, it was thought this would bring the curtain down on an era of executive overreach.

It was hoped multiparty and minority governments would not be able to throw their weight around in the way single-party majority governments can – and often did.

In a nation lacking the constitutional guardrails found elsewhere – including a formally codified constitution, a second parliamentary chamber with powers of legislative oversight, or a top court able to rule on the probity of executive action – electoral law reform looked like a recipe for policy moderation.

Supporters of the new system also anticipated it would encourage a more cooperative style of politics, one that eschewed the combative, winner-takes-all approach practised by successive FPP governments.

Right now, that optimism can look naive. Following three years under a Labour administration that behaved like a minority government despite commanding an outright parliamentary majority, New Zealanders find themselves governed by a three-party coalition more than willing to use its numerical advantage.

David Seymour, Christopher Luxon and Winston Peters walking toward camera in parliament corridor

Using their numbers: Prime Minister Christopher Luxon flanked by his coalition partners David Seymour and Winston Peters. AAP

Urgency and executive power

The National-led coalition has passed more legislation ^[3] under parliamentary urgency during its first 100 days in office than any other MMP government.

Some will see the parliamentary process being truncated in this way as an indication of efficiency. But it’s equally fair to say there can be a price to pay for avoiding public scrutiny.

Legislation that is not fully stress-tested in select committees can be flawed. And questions can reasonably be raised about the legitimacy of a process that denies public input in this way.

Other initiatives, too, are tipping the balance of power towards the political executive. The government’s fast-track consenting legislation ^[5] places significant powers in the hands of just three ministers who will have the discretion to overrule judicial decisions.

In effect, they can personally consent to big developments, potentially including roading, mining or tunnelling projects which critics fear might be fast-tracked regardless of their environmental impact ^[6].

Also telling was the response to outrage ^[7] over inadequately communicated changes to disability funding. Future decisions on operational matters affecting Whaikaha-Ministry of Disabled People will now be signed off directly by cabinet.

Aside from what it says about the political future of disability issues minister Penny Simmonds, this represents an unusual degree of direct ministerial involvement in the activities of a government department.

A diminished public service

There are other signs all is not well between ministers and officials. Most obviously, significant numbers of public service jobs are being lost ^[9].

The fast-track consenting legislation was prepared without a comprehensive analysis ^[10] of the possible impact on fisheries and the conservation estate. And ministers are making selective use ^[11] of regulatory impact statements.

In short, the capacity of the public service to speak truth to executive power is being diminished.

Beyond these and other instances of executive muscle flexing, the government’s perceived lack of compassion ^[12] and rhetorical style have also drawn attention.

Examples include the possible cancellation ^[13] of the school lunch programme, a seemingly cavalier approach to transparency requirements ^[14] around ministers and the tobacco industry, the apparent celebration of job losses ^[15] in the public sector, and the suggestion the state might decide ^[16] whether school pupils are unwell enough to stay home.

Some of this will pass. But there are reasons to be wary of the return of combative executive politics.

Balancing government and the governed

Left to their own devices, ministers do not always make good decisions. Parliamentary democracy is essentially government by amateurs. Ministers are professional politicians but are rarely experts in their portfolios. They learn on the job ^[17] and need help doing so.

Much of this assistance comes from officials. The point of a professional public service is to provide expert advice to those with the democratic mandate to take decisions.

Ministers are free not to act on official advice. But deciding on a course of action without at least listening to and considering that advice undermines well-informed decision-making.

There is a reason to keep some distance between politics and administration, too. When politicians make decisions about the operations of government departments and ministries, there is the danger that partisanship wins out over considerations of fairness and justice. Removing that gap risks politicising public administration.

Finally, perhaps the biggest threat of the centralisation of executive power is to the integrity of democratic norms and institutions.

In politics there is always a trade-off between decision-making efficiency and democratic effectiveness. New Zealand’s democratic institutions are not the preserve of ministers – they belong to everyone. And they need to endure long after an administration has left the executive stage.

MMP was designed to strike a better equilibrium between government and the governed. Losing that balance would contribute to the kinds of democratic erosion ^[19] being seen elsewhere in the world.