KEY POINTS:
The headline was startling - "Democracy under attack". More surprising, the democracy in question was not Pakistan or Fiji, but New Zealand.
The "attackers" were not terrorists, foreign or domestic, but rather, a Labour-led parliamentary coalition of the willing. And the means of attack was the rather innocuous sounding Electoral Finance Bill and its companion Appropriations Bill.
New Zealanders have expressed opposition to the Electoral Finance Bill through submissions to the Justice and Electoral Select Committee, letters to the e ditor, blogs and protest marches.
Some of the criticism is addressed by changes recommended by the select committee. But one major problem remains unresolved - the process used to formulate the bill was flawed.
Technically this is just an ordinary government bill requiring no special treatment. But the importance of its subject matter - electoral law - makes it extra-ordinary. Elections are the foundation of representative democracy. This foundation is supported on the bedrock of political equality and popular control.
Elections give the voter an equal say, not in decision-making, but in electing the decision-makers. Elections are also when elected representatives are held to account by the people they represent.
Elections in New Zealand have an added importance. Unlike most other modern democracies, our Parliament is sovereign. It does not share power with an upper house or state governments. It is not limited by an entrenched constitution or Bill of Rights enforced by the courts using judicial review.
Popular control through triennial elections is the only formal check on New Zealand's Parliament. This necessitates a higher bar for making New Zealand's electoral law.
Modern international "best practice" for dealing with fundamental electoral or constitutional reform spotlights the legitimacy of the process. Best practice requires a process that meets three tests: some measure of political neutrality, transparency, and substantive public input at a formative stage of the law-making process.
The process used for the Electoral Finance Bill has not adequately met these tests. Partisan politics have pervaded the process, thus failing the first and perhaps most important of these tests. Consultations on the Bill prior to its introduction to Parliament were accessed on a partisan basis: government allies were consulted; opposition parties were not.
This marks a sharp departure from long-established practice in New Zealand. For example, New Zealand was a world leader in removing partisan considerations from the redistribution of electoral boundaries. The Representation Commission, first appointed in 1887, prevented the practice of gerrymandering and still operates on principles of non-partisanship.
Ironically, under MMP, electoral boundaries are less decisive to election outcomes. Election finance is more likely to skew an election. This begs the question - if we insist the boundaries redistribution process be politically neutral, why not the electoral finance process?
Prior to MMP there was bipartisan agreement in Parliament that significant electoral change should have a cross-party parliamentary consensus that straddled both sides of the House. Governments' unbridled power was bridled by consensus.
This convention has been increasingly ignored under MMP. The rationale is that MMP cross-party negotiations replace the need for consensus, and no government is "unbridled".
Past governments chose to follow this convention because it produced sustainable electoral law. Electoral legislation passed without cross-party consensus was usually repealed with a change of government. National has already signalled its intention to repeal the Electoral Finance Act if elected.
The waning of this convention has created a legitimacy vacuum. Rather than seeking a genuine consensus, the Electoral Finance Bill negotiations resemble an American Congressional "mark-up" session - a series of trade-offs conducted in back rooms with admittance by invitation only.
This new approach lacks transparency and fails the second test of best practice. Who was "in the room" exerting influence over this legislation is unclear. Popular control requires greater clarity. The "you scratch my back" approach leads instead to piecemeal, mediocre legislation.
Election finance is important. It warrants a more robust process designed to produce a quality, comprehensive plan of reform.
As the elected representatives in our sovereign Parliament, MPs obviously have a vital role in legislating electoral law. But it is unhealthy for them to monopolise the entire process - formulation, deliberation and decision-making.
This represents a conflict of interest. It is much like the America's Cup allowing Cup holders to dictate the rules for future challenges. We have allowed the current holders of public office to dictate rules for next year's challenge.
The process has only partially met the third test of best practice. The submission process did invite public input; and the numerous changes recommended by the Select Committee may be offered as evidence of the public's influence.
But the input was not as substantive as it should have been. It occurred too late in the piece. Instead of proactively shaping the broad parameters of election finance reform, the public was forced to react to a poorly drafted bill.
We need to rethink how we deal with electoral legislation. Part of the process should take place outside Parliament.
At the very least, we should require that an independent body make recommendations to Parliament that serve as the basis for any new electoral policy.
The Electoral Finance Bill has shaken the public's confidence in the fairness of electoral law. A new and improved process is needed to rebuild the public's trust. And a better process will produce better, more legitimate electoral law.
* Dr Therese Arseneau is senior fellow at the school of political science and communication, University of Canterbury.
