Mai Chen: The argument for playing the tea tape

A simple cup of tea has boiled over for National Party leader John Key and Act Party member John Banks. Photo / Dean Purcell

Opinion

Garth George: The tea cup tape: Don't play it

Nine days out from the election, the public seem to be saying to Prime Minister John Key, 'Let us know what you really think," Mai Chen says.

On the basis that Drew Westen's book, The Political Brain, is right that voters are influenced by their emotions and feelings, and policies come a distant third, I start this election special on "Cuppagate".

When I advise clients, I always draw a distinction between legal advice on what rights the law protects and enforcement options, on the one hand, and what the client should do on the other. Just because you have a valid complaint in the law does not mean you should make a complaint. The outcome in law does not always dictate the best path in practice.

In the political arena, and for anyone interfacing with politics and politicians, the perception of having something to hide becomes a critical factor and trumps legality.

If the PM was an ordinary person, we would be yelling "sue", but nine days out from the election, the court of public opinion seems to be saying, "Let us know what you really said, let us know what you really think."

For the ordinary person, holding out for rights to privacy and against arguably illegal conduct would be the right call. But the court of public opinion says politicians need to be transparent and that the line between public and private falls in a very different place. Politicians who want to be elected can complain to the police, but if they want to court the voter, they have to be responsive to what voters expect.

Complaining about vandalism of National Party billboards by Green Party members under section 11A of the Summary Offences Act 1981 seems to be publicly acceptable. But the public and some in the media seem to be saying that complaining about covert recording under section 216B of the Crimes Act 1961 is heavy handed political management.

To which the lawyer in me responds, "Who would want to be a politician?" How frustrating after all the great work in leading the country through tragedies and global financial crises, and all the time spent away from your family putting the country's best interests first, and all the great policy and legislative wins, and a triumphant Rugby World Cup event - to be judged by an incident of alleged illegal behaviour by someone else!

The fallout from "Cuppagate" seems a long way from voting in the general election to determine the policies and laws that shape our future. They could be in play in less than two weeks, as I do not think it will take long for the new government to form. There are stark policy differences between the major parties whether that be on state ownership, the age of superannuation, employment law, the minimum wage or paid parental leave.

For voters, no one concentrates until the decision is right in front of you. Along with sorting out the kids and the summer holidays, you also need to start thinking about who to vote for and how to do it. Tactical voting is what most people ask me about. After all, if we do retain MMP after the referendum also running during the general election, then any complaints about MPs coming in on the coat-tails of those winning electorate seats (even though their party vote is not above the 5 per cent threshold) won't be remedied until a later election.

* Voters have a tactical choice about what configuration of parties they want using their party vote and electorate vote. They can split their votes to better indicate their overall preference. For example, Green Party voters in Wellington Central will likely vote for Labour's Grant Robertson with their electorate vote, but the Green Party with their party vote. This means that the Green electorate candidate will not split the left wing electorate vote, which could result in a right wing candidate winning the seat. A similar situation could happen in other marginal electorates such as Auckland Central, with Act voters backing National's Nikki Kaye and Green voters backing Labour's Jacinda Ardern.

* Voters can increase the power of their preferred party by electing support party candidates with their electorate vote, who will then bring in extra MPs according to the coat-tails rule. This has been the situation in Epsom, where National Party voters gave their electorate vote to Act's Rodney Hide (and possibly now John Banks) in order to have Act's share of the party vote represented in Parliament. This guaranteed National a government support partner.

* Voters can also punish MPs or block a candidate from winning a seat. Labour voters in Epsom could ignore David Parker and vote for National's Paul Goldsmith, in an attempt to defeat Act's John Banks (and subsequently the entire Act Party).

Many people, women in particular, fought to get the right to participate equally in democracy. We only have this chance once every three years. We rejected referendums proposing four-year parliamentary terms in 1967 and 1990 because we wanted a more regular ability to tell politicians what we really think of them.

Of the very few provisions in our constitutional laws that are entrenched, most of them relate to voting and elections.

Section 268 of the Electoral Act protects fundamental tenets of our democracy, such as the secret ballot, or the term of Parliament, from being amended by a simple majority, and instead can be changed only by a 75 per cent vote. Section 12 of the Bill of Rights Act 1990 also protects our right to vote and stand for Parliament. This constitutional context explains why November 26 matters.