REPORT ON THE SIXTH PACIFIC PARLIAMENTARY RETREAT TRADITION AND MODERN PARLIAMENTARY DEMOCRACY

WELLINGTON, NEW ZEALAND, 15-19 NOVEMBER 2004

The Sixth Pacific Parliamentary Retreat involved 14 participants from eight parliaments in the Pacific (list attached) including , Papua New Guinea, Samoa, Solomon Islands and Vanuatu and for the first time participants from the Cook Islands, Niue and Tonga. The Retreat was held in the chamber of the former upper house of New Zealand, which was abolished half a century ago, with excellent support from the , New Zealand Members of Parliament and NZAID (program attached). Participants were thus able to focus on the work of the NZ Parliament as well as reflect on the application of some of the principles and practices to their own parliaments.

An Exciting Week in Parliament

The intention of the organises had been to focus on events such as Question Time and Select Committee deliberations but we ended up with far more than we bargained for. The government declared the Foreshore and Seabed Bill a matter of Urgency and so parliamentary business was devoted to debate on this difficult and contentious piece of legislation. The legislation was the government’s response to a court decision allowing indigenous claims to the foreshore and seabed, contrary to the expectation of the government and the public. The Bill clarifies the public ownership of these areas but also foreshadows the possibility of allowing Maori territorial customary rights over such territory to which they have a connection. While the Bill dealt with important economic interests, it also opened a difficult debate on indigenous rights and settler community rights. It was therefore a critical test of the responsiveness, workability and sensitivity of the New Zealand political system. Retreat participants had a privileged view of proceedings with some of the major protagonists addressing participants on the issues.

Because this was not a ‘business as usual’ week, Retreat participants were able to gauge how well parliamentary systems were coping with increasingly heated exchanges. What they witnessed was the ability of a minority government to strike a deal with a smaller party, in this case New Zealand First, to give it the numbers to pass the legislation even though other parties that often supported the government such as the Greens and the Progressives were opposed to the legislation. Participants also saw the Deputy Leader of the Nationals ejected, an appeal to the Speaker objecting to the chair’s expulsion ruling and the physical ejection of demonstrators interrupting proceedings from the public gallery.

If that were not sufficient, this was also the week in which the Supreme Court ruled that the renegade ACT MP was subject to the loss of her seat in parliament with her place available to the next name on the ACT party list. The decision against , the daughter of a renowned Maori hero of WWII, a passionate supporter of Maori causes and author of a book entitled Maori Sovereignty, was of particular interest to Pacific MPs because some of their parliaments are also subject to the anti party hopping law of which Mrs Huata fell foul. She is also facing corruption charges thus raising issues of accountability that Pacific MPs also grapple with.

Tradition and Modern Parliamentary Democracy

The role of tradition in the political life of Pacific Island nations was a recurring theme of the Retreat. It arose in different contexts and each time proved to be a difficult subject, open to different interpretations. Most participants agreed that tradition or kastom, as it is called in Melanesia, remains an enduring feature of their societies. Some called it the glue that holds the societies together, others referred to it as the underlying feature of Pacific island societies. One participant argued for the need for a stock take of traditional practices, just as the New Zealand Prime Minister was calling for a Constitutional stock take in NZ. Tradition was invariably transmitted and disseminated by oral means and this added to the difficulty of understanding its force and impact as well as its limits. Describing traditional practices was therefore a necessary starting point.

The Polynesian nations had a deeply ingrained acceptance of the chiefly system. Many of these nations have embedded chiefly aspects into their political system. Samoa allows only Matai to run for political office and Tonga continues to vest vast powers in the King. In other countries modern institutions had to be created to reflect the reality of chiefly authority such as in Fiji where the 1997 Constitution builds a significant role for the Great Council of Chiefs. In the Melanesian ‘Big Man’ systems, inherited status was rarely used, instead it is the demonstration of the indices of power that matter – how much land does he own, how many pigs can he slaughter at a feast and how many wives does he have to do his bidding. One important point made by participants was the need to distinguish between the traditional role of traditional leaders and the new role some of them claimed in modern societies. While traditionally some of these leaders had local authority over limited aspects of social life such as dispute settlement and social ceremony, the question arose of whether it was appropriate to extend these roles nationally to important economic and political decisions.

Ideally, the discussion continued, the best aspects of tradition could be encouraged or rekindled. Traditions of communalism, reciprocity and generosity were important aspects of village life in the Pacific, which the market system tends to devalue. There is also the question of moral leadership of the community as was shown recently in the Solomon Islands when political authority collapsed. Traditional leaders, teachers and NGO leaders became the moral leaders in these circumstances. Another issue discussed was the different perception of tradition among communities in multi-ethnic countries. This issue was at the heart of the Foreshore and Seabed debate in New Zealand where different

1 conceptions of ownership were at play. While one concept encompassed exclusive use, alienation and profit making, indigenous concepts tended more towards guardianship and responsibility for the land with different segments in each community gravitating towards the other’s views. Few modern societies were homogenous though this remained an aim of Samoan society.

Tim Barnett provided an excellent summary of the NZ political system and commented at length on the issue of assuring appropriate Maori representation in parliament. NZ had had four dedicated Maori seats for over a century but with the new MMP system, Maori voters could make a choice whether to enrol on the general roll and vote in the general constituencies or on the Maori roll and vote in Maori constituencies. Enough Maori had elected the latter roll to establish 7 Maori seats. Thus NZ had instituted a means whereby Maori would always have representation in parliament. Today 19 of the 120 MPs were Maori. There was continuing debate as to whether this system was the best. On one side of politics the argument put forward was that indigenous seats should have a sunset after which all New Zealanders would be treated the same. Tim Barnett, however, had a vision for a bicameral parliament with a general chamber and a Maori chamber.

Another difficult issue was the reality that Christianity had taken over many of the roles once reserved for traditional practices in terms of moral and community leadership in Pacific island nations. The role of Christianity and its proponents was now so strong as to suggest that it may be the most important aspect of tradition in the Pacific. Political leaders had to take a very careful stand in relation to the role of religion in politics. This sometimes arose in issues for parliamentary decision such as the growing sentiment in the Cook Islands to legislate for Sunday closing. It also arose in relation to the influence of church figures in politics.

This Retreat had the benefit of the experience of two seasoned politicians from the Pacific who could share their knowledge with other participants. Both Paul Tovua (attached) and Sir Julius Chan (attached) presented papers dealing with the broad theme of tradition and modern parliamentary democracy.

Gender Issues

One of the ways tradition manifests itself in the Pacific is the dominance of men in politics. On this issue the Melanesians and the Polynesians are alike. Women are dramatically under represented in Pacific parliaments and the fact that two of the 14 participants at the Retreat were women represents a high percentage in relation to parliamentary realities. Participants pointed to the need for better voter education, better education for the girl child and more women role models to lead the way. The under representation of women in Pacific parliaments raised not only issues of fairness and human rights but also the problem of weaker parliaments because half the population did not have sufficient voice.

At least on the issue of role models, participants could see the value of having women’s voices from the two Retreat women participants and from two impressive speakers that

2 addressed them. Nanaia Mahuta, Labour Member of Parliament representing Tainui, one of the seven Maori seats, spoke to the group about her dilemma of representing an electorate in which the vast majority were against the Foreshore and Seabed Bill while being a member of the Labour Party that was proposing the Bill. The Bill had already caused a fellow Maori woman MP, Tariana Turia, to quit the Labour Party and successfully contest a Maori seat by-election in the colours of her new party, the Maori Party. Ms Mahuta had contemplated following suit but after consultations had decided she could be more effective for her people within government. On the issue of being a woman in a community traditionally led by men, Ms Mahuta said she respected the traditions of her people and was careful not to use her parliamentary status to push herself forward inappropriately. She tried to consult widely and to listen carefully. Even within traditional practices, there were ways for women to assert themselves; launching into song was a good way to cut off a male speaker. It was a particularly difficult week for her and she contemplated with the group the possibility that the Bill could wipe out Labour representation in Maori seats at next year’s elections.

Participants also had the privilege of listening to a presentation by Luamanuvao Winnie Laban, Labour Member for Mana, the first woman of Samoan origin to sit in the NZ Parliament. She began parliamentary life as a Labour list MP without an electorate. Interestingly, the Pacific Islands people of NZ became her electorate thus demonstrating an interesting feature of NZ’s Mixed Member Proportional Representation system; one need not have a constituency to have constituents. Ms Laban then moved to a constituency seat and put all her eggs in the one basket by not seeking a place on the party’s list. She described the demographics of her seat as half pakeha, a quarter Pacific Islanders, a fifth Maori and five percent ethnic minorities. This required a difficult balancing act. She decided not to concentrate on single issues of direct relevance to her minority constituents because this would have the effect of marginalising their MP. Instead she works on issues of Finance, Foreign Policy and Overseas Development Assistance as well as individual constituent problems. Her paper is attached.

One bright spot in the Pacific had been the recent election of two women to the two seats available on Epi Island in Vanuatu. Leinavao Tasso had won the second seat in Epi after Isabel Donald had blazed the trail. Many saw this as a vote of confidence in women as representatives, particularly noteworthy in a village Melanesian environment.

Dr Elizabeth McLeay spoke to the group about the changes in the NZ political system making the point that the First Past the Post (FPTP) system was the hardest for women to succeed in while the current system of Mixed Member Proportional (MMP) representation with the requirement for sensitivity to gender and minority representation had demonstrated its effectiveness in having women elected to parliament. Women in parliament had leapt from 5% in the 1960s and 70s to 30% currently.

Changing Electoral Systems

The Retreat participants studied the changes in the NZ electoral and political systems closely. All speakers who addressed the Retreat spoke enthusiastically in favour of the

3 changes in the electoral system in 1996 as having produced a more representative parliament and a more robust democracy. Richard Prebble recalled the parliament when he first entered as being a club of white middle-aged men whereas today it represented the NZ population far more faithfully. Rod Donald recalled how the momentum for reform built up in NZ even though the two major parties were nervous about any change that challenged their domination of the political system. The referendum in favour of MMP in 1993 won with 53% of the vote and NZ could no longer avoid major political re- engineering.

Perhaps the most telling lesson the Pacific parliamentarians drew from the various descriptions of the change to MMP, was the complexity of the issue and the need to allow the new system to evolve. Changing an electoral law is a relatively simple operation and, indeed, PNG and other Pacific countries were going through this process, but it was but one of many steps. In the NZ case, electoral reform had been part of a process of deliberative democracy involving civil society in which the eventual outcome was not the preferred wish of the establishment. Bowing to the will of the electorate, the parliament then had to change a number of formal procedures as well as evolve new political practices based on the virtual inevitability of minority government.

On the formal side, the Committee system had changed significantly. It had been a rather supine system bowing to the will of the majority party that necessarily had the chair and majority support in key committees, to a system where the invariable minority government rarely had the numbers and only sometimes had the chair of a committee. Louise Sparrer explained how the system of proportionality ran right through the committee system and thus allowed committees to be free of government determination of their work allowing them to initiate their own inquiries. These issues were of particular relevance to Pacific parliamentarians because the committee system was often the Achilles heel of Pacific parliaments. Problems encountered in the Pacific concerned limited resources to back up the committees, paying sitting fees for MPs on committees thus often attracting membership for the wrong reasons and lack of transparency in the work of committees. The NZ system of public meetings, the open invitation to lodge submissions, publications of submissions, drafting of reports often based on cross-party consensus and the rule that government needed to respond to recommendations within 90 days, provided an important precedent for Pacific parliaments to review. Because most Pacific parliaments were unicameral as in Wellington, the committee system was seen as an important balance that might otherwise be provided by an upper house.

An interesting informal practice that had developed in the NZ political system was the success of the current Labour minority government to find support for its policies among different allies in a chamber in which eight parties were represented. The 51 seats held by Labour are ten short of the majority to pass legislation. A formal coalition with the 2 MPs from the Progressive Party brings this to 53 and thus only 8 additional votes are required. The curious mathematics thrown up by MMP creates a situation where, the Opposition Nationals aside, the Labour government can seek support from any one of 4 different parties to make up its majority (NZ First 13 seats, Greens 9 seats, ACT 9 seats, and United 8 seats). Even her political opponents acknowledged the clever way in which

4 Prime Minister had been able to put together majorities on different issues by shopping for support from among the four possible allies. Labour struck an agreement with United to ensure supply and confidence votes and it is able to legislate on its environment and social justice platform with support from the Greens. In the Foreshore and Seabed vote, although its traditional allies deserted Labour, a deal was struck with NZ First as the unlikely ally. For Pacific parliamentarians there was an important lesson identified in this process concerning the need to build policy coalitions in parliament.

Dr Helena Catt, Chief Executive of the New Zealand Electoral Commission, put these issues in a broader context for participants by looking at various electoral systems and their impacts on political systems. She noted that electoral systems have flow on effects on parliament, political parties, government, political stability and the quality of democracy. The right fit had to be found for each society depending on whether it wished to encourage consensual or adversarial politics, two-party or multi-party systems and the best means of assuring stability and orderly alternation of power.

Political Party Integrity Laws

Pacific parliaments have been dogged by problems of shifting coalitions threatening the stability of governments. PNG was particularly prone to this problem and had attempted various institutional design modifications to deal with it. Governments were given an eighteen-month grace period in which votes of no confidence could not be taken. But after this period expired, incumbents became vulnerable. One response was simply to adjourn parliament for long periods stalling any anti-government coalition from building up its numbers. But there were limits to the effectiveness of this process because the Constitution set requirements for parliamentary sittings and the PNG Ombudsman had taken the matter to court. Another institutional design idea was to tie parliamentarians to their political parties through anti ‘party-hopping’ provisions. Fiji had such a provision in its Constitution, PNG had passed an Organic Law on the Integrity of Political Parties to that effect and Samoa was debating a similar scheme. So it was particularly interesting to see the operation of that law in New Zealand.

Since the NZ law came into operation, two Maori women had left their respective parties. Tariana Turia objected to her party’s policy on the Foreshore and Seabed legislation. But instead of resigning from the Labour Party and sitting on the cross-benches, which would have been an option under the classical Westminster system, she resigned her seat and successfully recontested the by-election in the Te Tai Hauauru Maori electorate in the livery of her newly formed Maori Party. Accordingly, the anti party-hopping legislation was not triggered.

When Donna Awatere Huata left ACT however, she chose to remain in parliament as an independent. Her party claimed to be disadvantaged by this move and sought to activate the anti party-hopping legislation, which Mrs Huata resisted in the courts. When the Supreme Court decision went against Mrs Huata, Speaker Jonathan Hunt had no option but to declare her seat vacant thus leaving the way open for the next name on the ACT list, , to be sworn into parliament. Speaker Hunt had a busy day on 19

5 November, first having handed out certificates to Retreat participants before grappling with the problem of applying the court’s decision in the Huata case.

Watching events unfold allowed Retreat participants to focus on this issue. One important aspect was the growing justiciability of political issues based on the formalisation of institutional design changes in legislation or constitutions. PNG, Fiji and Vanuatu in particular had seen this phenomenon develop in their countries putting great pressure on both the political and judicial systems. Ironically, it was observed, while NZ had abolished appeals to an outside court, the Privy Council, Pacific countries were inviting foreign judges to sit on their courts of ultimate appeal.

The major distinction noted by participants between the Huata case and their own situations was the prominence of political parties in the NZ system as cemented by MMP. Voters had voted for the ACT list and had therefore been short changed when an MP on that list left the party. By expelling Mrs Huata and swearing in Mr Wang, the system would be faithful to the voters’ intentions. But Pacific electoral systems were by and large constituency based and voters had selected an individual who happened to represent a political party. It was more difficult to base a rationale for expelling a renegade MP on the intentions of the voters in these cases. The rationale relied on in the Pacific was the need to strengthen the coherence and stability of the parliamentary system.

A final irony in this episode is the fact that the NZ Parliament has yet to decide whether to retain the anti party-hopping provision. It has a sunset clause that means action would need to be taken before the next election. Mrs Huata may yet go down in NZ political history as the only MP ever to fall foul of this provision.

The Role of the Speaker

Participants were fortunate to be able to discuss issues with Speaker Jonathan Hunt on several occasions during the Retreat. MMP had changed the composition of parliament and it was necessary also to change some of parliament’s working methods to accommodate the new system. A majority government could stamp its authority on the workings of parliament by weight of numbers but a minority government had to negotiate the process through. The major innovation had been the establishment of the Business Committee, chaired by the Speaker but with representation from all the political parties, to agree on the order of business for the parliament. This innovation appears to have been judged a great success. Ultimately, however, if a government can muster the numbers, it can still push through its agenda as occurred with the Urgency procedure used to push through the Foreshore and Seabed Bill.

Speaker Hunt explained the discipline issues related to the sin binning of a National MP witnessed by participants. The chamber was sitting in committee when the chair sent the offending MP out of the room. The chamber then voted to reconvene in plenary and thus caused the return of the Speaker who was asked to rule on the chair’s decision. Mr Hunt told the group he had been listening to the debate in his office and had heard the chair ask the interjecting MP to sit down three times before electing him. It was unthinkable in

6 these circumstances to overrule the chair. In any case the expulsion from the chamber would only be for a few hours. However in serious cases or repeated or continuing breaches the penalty can last several weeks at which point the MP may stop receiving allowances.

Mr Hunt also explained the procedure employed to regulate the asking of questions during Question Time. Twelve questions were allowed – three for Labour, three for Nationals and one for each other party, again following the logic of proportionality. These were provided to the Speaker’s office three hours before Question Time and Ministers thus had some notice of the issues to be raised. But the Speaker also allowed 60 supplementary questions in the course of Question Time and these were also distributed proportionally and could be used tactically as the parties decided. Points of Order needed to be added to this tally, as they were not counted as supplementary questions. The Speaker readily agreed with an observation form a participant that the great majority of Points of Order were nothing of the sort but merely debating points. The job of the Speaker was to rule quickly on these and to keep proceedings moving along.

Another interesting innovation flowing from the change in the two party system to the MMP eight party system was the redundancy of the institution of ‘pairs’ whereby a pair of opposing parliamentarians could be excused and thus allow the government’s majority to remain unaffected. Pairs were impossible among eight parties so a new system had been developed whereby the party whips could cast all of that party’s votes. This was the first time such a system had been observed by Retreat participants and it reinforced the centrality of political parties to the MMP system. Mr Hunt explained that the whips were allowed to cast all the votes if three-quarters of the members of the party were in the parliament precincts at the time of the vote – eg for the eight member United Party, only two MPs could be absent at the time a vote was taken for all eight votes to be cast. The parties kept a weather eye out for any breaches of this rule by their opponents.

Mr Hunt also explained the dilemma faced in giving time for private members’ bills. There was really only enough time to handle three such bills at a time. But there were some 40 proposed bills. Every second Wednesday was devoted to private members’ bills. So how was one to decide which MP could get his or her bill up. Mr Hunt had studied this problem and had settled on the Westminster practice of drawing ballots. This ultimately appeared to be the fairest method.

Retreat participants appreciated the importance of the rules of parliament and were grateful to receive copies of the New Zealand parliament’s Standing Orders and Speakers’ Rulings. Three of the participants, the Speaker of the Niue Parliament, the President of the Fiji Senate and the First Deputy Speaker of the Vanuatu Parliament found Mr Hunt’s comments particularly useful for their continuing role in presiding over their chambers.

Parliamentary Libraries

7 Participants had the opportunity to visit the impressive parliamentary library and receive a briefing from Katherine Close, Manager of the Parliamentary Information Service. This allowed for a run through on the various library resources available to parliamentarians in their home parliaments. A common problem is the cost of maintaining an up-to-date parliamentary Library and even though the Internet can fill some of these gaps, the cost of the Internet can also be prohibitive.

Just as the Queensland Parliamentary library had offered Retreat participants in 2002, the NZ parliamentary library made an informal offer to provide briefing papers to Retreat participants within the limits allowed by the discharge of core responsibilities.

The Retreat also provided an excellent opportunity to add to the holdings of Pacific parliamentary libraries. CDI had arranged with the International Institute for Democracy and Electoral Assistance (IDEA), an inter-governmental democracy promotion organisation based in Stockholm of which Australia is a member, for a set of IDEA publications (list attached) to be provided to each participating Pacific parliament. IDEA’s generosity is gratefully acknowledged.

Future Retreats

The evaluation forms and the concluding discussions all point to the value of the Retreat process and the need to continue to bring Pacific parliamentarians together in this informal setting where the key issue is the functioning of parliament and the work of parliamentarians. Previous themes have included the work of the Opposition, Accountability and Land Use issues. Future themes might include both parliamentary issues such as review processes as well as general themes such as regional cooperation.

While this was the first Retreat held outside Australia, there was a strong view, repeated from previous Retreats, that the Retreat should occasionally be held in a Pacific country. Fiji and Samoa were both mentioned as possible venues with a consensus appearing to be building around Suva as a venue.

The New Zealand Parliament also indicated that it would be pleased to host a future Retreat and this may also be possible after the 2005 elections.

Conclusion

The Sixth Pacific Parliamentary Retreat was a particularly successful event. This was due to the quality of the participants, the enthusiastic participation of the NZ Parliament and the interesting issues studied by participants at the Retreat. It has never been the intention of the Retreats to put forward a host parliament as a model for others to follow. Each society has to find its own means of developing the quality of its democracy. The Retreats allow participants to learn some new ideas, engage with fellow political practitioners and, hopefully, to learn from each other. The method of learning employed is largely experiential with discussion and observation as the ley elements.

8 Perhaps the major lesson participants drew from the Retreat is the critical importance of institutional design issues. By observing a parliament that has reinvented itself to fit in with a new national mandate engineered through a new electoral system, participants were able appreciate how one aspect of institutional design could impact on many other aspects. In Pacific nations the question of institutional design has to be sensitive to traditional modes of leadership. The challenge for Pacific countries is not to see the problem in terms of ‘either democracy or tradition’ but to find ways in which the principles of democracy can blend in with the most beneficial traditional ideas. The challenge is a dynamic one as Pacific nations are changing in many ways.

The other important issue covered in the Retreat concerns managing diversity. There may be some Pacific countries that generally have ethnically homogenous populations, but most are in fact a mix of various peoples. New Zealand’s parliament is now a reflection of the New Zealand population and the loss of the apparent stability of the two party system run by ‘white middle-aged men’ has given way to what could prove to be a democratically more sustainable stability of representation in proportion to the diversity of the population. This is a concept that needs far more deliberation in the Pacific both in terms of human rights and in terms of effective governance. While ethnic balancing has crept onto the Pacific political agenda, gender balancing is not yet in the picture. The example provided by the women role models at the Retreat should encourage the mainstreaming of this issue in political discussion.

A final important issue that participants were able to appreciate concerns the processes of wielding power and implementing a political agenda beyond the brute force of numbers in parliament. The politics of consensus and the politics of coalition building were both prominently on display in Wellington. This is a political reality that many Pacific nations are still in the process of constructing.

Vote of Thanks

CDI would like to thank all participating Pacific Parliaments for their continuing cooperation in the holding of these Annual Retreats. As always, thanks are extended to AusAID, which provides the core funding for CDI and encourages CDI’s work in the Pacific. On this occasion CDI also thanks NZAID for its generous contribution to the funding of the Retreat.

Particular thanks go to all those who kindly agreed to speak at the Retreat. The list includes six NZ MPs and several officials from the NZ Parliament as well as several academics and officials.

Finally, special thanks go to the New Zealand Parliament for its enthusiastic cooperation and in particular to the Speaker, the Clerk and the Inter-Parliamentary Relations Office. The parliament kindly assigned one of its officers to assist us and without Kate Horrey’s help, the smooth running of the Retreat would not have been possible.

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