Separation of Powers in New Zealand: Executive Control of Government Bills Under FPP and MMP

Abstract

This thesis considers the doctrine of the separation of powers and its application to New Zealand's system of government under different electoral systems: first-past-the-post (FPP) and mixed member proportional (MMP). New Zealand replaced FPP with MMP in a nationwide referendum in 1993. The first MMP Parliament was elected in 1996. The aim of the thesis is to establish the extent to which the adoption of MMP has resulted in the executive becoming less powerful vis-à-vis Parliament. It does this by comparing executive control of government bills under FPP and MMP. 'Control' over government bills is taken to mean the ability of a government to determine: which bills it introduces into the House; the content of those bills prior to introduction; the number and nature of amendments following scrutiny by parliamentary committees; the quantity of bills that are passed by Parliament; and the speed with which those bills are passed. The less control a government has in each of these areas, the more difficult the process of legislating is generally. This, in turn, indicates a greater separation of powers between the executive and legislative branches of government. Overall, the change from FPP to MMP has caused a significant shift in power from the executive to Parliament. Under FPP the process of forming a government was relatively simple, as it involved only one party taking office. By contrast, governments under MMP have been comprised of more than one party. In addition, minority governments have relied on support parties to take and hold office. The process of forming governments out of multiple parties has meant that MMP governments are more restricted in the choice of the bills they introduce into the House. That multiple parties must agree to support a bill prior to its introduction also means that ministers must show greater flexibility over the content of legislation, compared to ministers under FPP who dealt with a single government caucus. Government majorities on select committees were ubiquitous under FPP. Conversely, the widespread absence of government majorities on select committees under MMP has meant that governments must rely on non-government parties to afford them a degree of control over committee outcomes. Similarly, the support of non-government party allies allows ministers from minority governments to achieve favourable outcomes in a committee of the whole House. Finally, fewer government bills are passed under MMP. Those bills that are passed take longer on average to be enacted. Taken together, these changes signal a greater separation of executive and legislative powers. MMP has resulted in New Zealand's constitution undergoing an important and much needed rebalancing, without the need for major reconstructive surgery, such as the addition of a second chamber or the removal of the executive from Parliament.