Question time on whether NZ needs to reinstate an upper house

In the 2011 election, New Zealanders will also vote on the future of MMP. Two questions will be asked of electors: whether MMP is their preferred electoral system and what would be their preferred alternative – First Past the Post (FPP), Supplementary Member (SM), Preferential Voting (PV) or Single Transferable Vote (STV).

Essentially this asks us all three questions: Are we happy with the proportional voting system we currently have (MMP)? Would we prefer less proportionality (SM)? Or would we like to return to the previous system of simple plurality vote that New Zealand had before 1996 (FPP)?

Alas, these questions skirt around the fundamental issue regarding which parliamentary system is best suited to provide constitutional governance in New Zealand. Based on experiences in other countries with similar legal and cultural institutions, and unintended consequences of MMP in New Zealand, an upper house is worth considering.

MMP has, in some ways, proved to be the worst of all worlds. It was meant to provide consensual decision-making, prevent an outright parliamentary majority pulling away from the will of voters and, thus, make Parliament representative. It was also meant to provide different local and national representation, and the proportional element was supposed to increase diversity within Parliament.

In reality, the electorate votes for parties, not governments. Parties form governments after the election. Political accountability can be dodged by appealing to the fact that MMP involves compromise. There is no political imperative for parties to own decisions, leading to concessions being extracted for supporting policies.

A glaring example of the horse-trading that occurs under MMP was the Government's emissions trading scheme introduced last year. The Government conducted a backroom deal involving concessions with the Maori Party to rush through a poor set of laws that will cost New Zealand substantially for little, if any, environmental benefit.

This, of course, could also happen under the old FPP electoral system, except it would be a single party doing it. Perhaps it is not the voting system that is the issue but the structure of Parliament.

New Zealand is one of the few Westminster parliamentary systems that has no upper house (the New Zealand Legislative Council was abolished in the 1950s). The closest example is the state government of Queensland – widely considered a bit of a bandit state in Australia with few real checks on executive power.

One of New Zealand's constitutional problems, like Queensland, is that it is too easy to pass laws quickly and without proper scrutiny. This has not really changed under MMP. The laws simply involve more tradeoffs which, though politically necessary, is not a good basis for policymaking.

Without a written constitution, there are few real checks on government power, and MMP has not reduced the power of government to pass laws, it has just made more compromises on laws necessary.

The main advantage of FPP over MMP was that coherent policy programmes could be passed through by the one party leading the government without any cross- party compromise that might diminish coherent policymaking.

If New Zealand is serious about rethinking its electoral laws, the discussion should be around an upper house or senate. The debate over FPP versus MMP is impoverished, either of these asks the wrong question. Whereas FPP can produce elective dictatorships, MMP is a system designed deliberately by the Germans to avoid this situation. Germany is facing substantial challenges that are struggling to be resolved by its MMP system.

In New Zealand, reintroducing a senate could provide the best of both worlds. There would still be electorate and party votes, FPP representation by seats in the house of representatives, and proportional representation in the senate.

Because the type of representation is different, the senate could provide a critical check on laws it is asked to pass. This is where, as in the Australian Federal Parliament, the smaller parties would find their voice.

The senate would provide a publicly visible role for senators to review legislation and those deciding to block or support certain laws would be politically compelled to explain their decisions to the public.

In Australia, deliberately mercantilist senators tend to be punished at the ballot box. The FPP versus MMP debate seems to have become increasingly partisan, which is a shame because the wider questions it raises around New Zealand's constitutional arrangements are important.

One suspects that, regardless of the outcome of the referendum, the issue will not go away because MMP or FPP without an upper house will ultimately experience the same problem.

Luke Malpass and Dr Oliver Marc Hartwich are researchers at the Centre for Independent Studies. Their paper Superseding MMP: Real Electoral Reform for New Zealand was released 24 March 2010.