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‘All is Changed, Changed Utterly’? - The Causes and Consequences of New Zealand's Adoption of MMP

Published online by Cambridge University Press:  24 January 2025

Andrew Geddis  and
Caroline Morris
Andrew Geddis*
Affiliation:
Faculty of Law, University of Otago
Caroline Morris*
Affiliation:
Faculty of Law, Victoria University of Wellington
*
(andrew.geddis@stonebow.otago.ac.nz)
(caroline.morris@vuw.ac.nz)
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Abstract

New Zealand’s political landscape experienced a seismic shift in 1993, when the country replaced the First-Past-The-Post (FPTP) voting system it had inherited from its British colonial past with a new Mixed Member Proportional (MMP) voting system. The move had immediate and deep ramifications for a whole range of issues: the range of interests represented in Parliament; the way that governments are formed and function; how the country’s public sector agencies operate; the manner in which its electoral participants conduct their campaigns; and so on. Indeed, it is not too much of an exaggeration to say that every area of New Zealand’s public and political life was touched in some fashion by the general ‘systems change’ produced by the country’s decision to embrace MMP.5 These changes have effected shifts in what may be termed the ‘political culture’ of New Zealand; re-alignments in the relationships between various public and political institutions and bodies; as well as alterations to the formal legal rules that govern these institutions and bodies.

Type
Research Article
Information
Federal Law Review , Volume 32 , Issue 3 , September 2004 , pp. 451 - 478
Copyright
Copyright © 2004 The Australian National University

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Footnotes

The authors’ mutual thanks go to Geoff Barnett, Paul Harris, Graeme Orr and George Williams for their various insightful comments and suggestions. Thanks also to Karen Jackson for her assistance. All remaining errors are, of course, entirely the fault of the authors.

References

1 Fiona Barker and Elizabeth McLeay, 'How Much Change? An Analysis of the Initial Impact of Proportional Representation on the New Zealand Parliamentary Party System' (2000) 6 Party Politics 131, 144-7.

2 Jonathan Boston, Governing Under Proportional Representation: Lessons from Europe (1998).

3 Jonathan Boston et al, New Zealand Under MMP: A New Politics? (1996) 136-51.

4 Jonathan Boston et al (eds), Left Turn: The New Zealand General Election of 1999 (2000) 23-68.

5 Paul Carpinter, 'MMP and Coalitions: Possible Effects on New Zealand's Public Service' in Gary Hawke (ed) Changing Politics? The Electoral Referendum 1993 (1993) 131-2.

6 For a comprehensive overview of the impact of MMP on New Zealand's constitutional framework see Andrew Stockley, 'WhatDifference does Proportional Representation Make?' (2004) 15 Public Law Review 121.

7 New Zealand, Royal Commission on the Electoral System ('RCES'), Report of the Royal Commission on the Electoral System:Towards a Better Democracy (1986) 11-12. We see the Royal Commission's 10 criteria as mapping on to our three themes in the following way:

Theme One:ideals about, and institutions for, representation of the voters' will (Fairness between political parties; effective representation of minority and special interest groups; effective Maori representation; effective representation of constituents; effective parties.)

Theme Two:changes in the constitutional balance of power (Effective government; effective Parliament.)

Theme Three: continuing efforts to engage the voting population in the electoral process in general (Political integration; effective voter participation; legitimacy.)

8 See Boston, above n 3, ch 1.

9 Samuel Issacharoff and Richard Pildes, 'Politics as Markets: Partisan Lockups of the Democratic Process' (1998) 50 Stanford Law Review 643, 644. See also Samuel Issacharoff and Pamela Karlan, 'The Hydraulics of Campaign Finance Reform' (1999) 77 Texas Law Review 1705, 1734.

10 Constitution Act 1986 (NZ) s 3.

11 Ibid s 17.

12 A full account of how MMP operates is provided by the New Zealand Electoral Commission, <http://www.elections.govt.nz/elections/esyst/govt_elect.html> visited 22 August 2004.

13 Although it is possible that this may lead to a parliamentary 'overhang' situation – a parliament of more than120 MPs – this has not yet occurred in New Zealand.

14 Electoral Act 1993 (NZ) s 2(1).

15 With the exception of the 1908 and 1911 elections, when a 'second ballot' voting system was used.

16 Jack Vowles et al, Towards Consensus? The 1993 Election in New Zealand and the Transition to Proportional Representation (1995). See also the sources cited in the following two footnotes.

17 Keith Jackson and Alan McRobie, New Zealand Adopts Proportional Representation: Accident? Design? Evolution? (1998) 315-7; James Lamare and Jack Vowles, 'Party Interests, Public Opinion and Institutional Preferences: Electoral System Change in NewZealand' (1996) 31 Australian Journal of Political Science 321, 336-7.

18 Dort Denemark, 'Choosing MMP in New Zealand: Explaining the 1993 Electoral Reform' in Matthew Shugart and Martin Wathenberg (eds), Mixed-Member Electoral Systems: The Best of Both Worlds? (2001) 81-83; Hon Sir John Wallace QC, 'Reflections on Constitutional and Other Issues Concerning our Electoral System: The Past and the Future' (2002) 33 Victoria University of Wellington Law Review 719; Tim Bale and Nigel Roberts, 'Plus ça change…? Anti-Party Sentiment and Electoral System Change: A New Zealand Case Study' (2002) 40 Commonwealth & Comparative Politics 1, 2-3.

19 Pippa Norris, Critical Citizens: Global Support for Democratic Governance (1999).

20 Maurice Duverger, Political Parties: Their Organisation and Activity in the Modern State (1951) 217. This effect was particularly pronounced in New Zealand; see Helena Catt, Paul Harris and Nigel Roberts, Voter's Choice: Electoral Change inNew Zealand? (1992) 80-81.

21 Boston et al, above n 3, 3. That being said, the fact that the FPTP system did not reward even the major parties in a consistent fashion was a cause for some disquiet. For example, in both the 1978 and 1981 general elections the National Party was able to win a majority of seats in Parliament despite receiving fewer total votes than did the Labour Party.

22 The Alliance Party gained 18.2% of the total votes cast, but only 2 seats in Parliament. The NZ First Party also gained 2 seats, along with 8.4% of the nationwide vote.

23 Jackson and McRobie, above n 17, 257-63; Jack Vowles et al, 'Public Opinion, Public Knowledge, and the Electoral System' in Jack Vowles et al (eds), Proportional Representation on Trial (2002) 160. However, a detailed study of the voters' motivations in the 1993 referendum has concluded that 'the vast majority of voters appeared to have good reasons for making their choice'; see Vowles et al, above n 16, 192.

24 The referendums leading to the introduction of MMP actually took place in two stages. The first stage, a stand alone referendum which occurred in 1992, asked voters two questions. First of all, they were asked whether they wanted to retain the existing FPTP system, or whether they wanted to change it. They were then asked which of four voting systems they would prefer to the existing FPTP system. These four systems were: Supplementary Member; Single Transferable Vote; Mixed-Member Proportional; and Preferential Voting. For an account of how these voting systems work see Administration and Cost of Elections Project, Electoral Systems Index <http://www.aceproject.org/main/english/es/es.htm> (visited 13 August, 2003). This first stage resulted in a turnout of 55.2% of registered voters, with 84.7% voting infavourof changing away from FPTP, and 70.5% of these voters then favouring MMP ahead of the other three alternative voting systems. See generally Jackson and McRobie, above n 17, 237-42. The second referendum, held on election night in 1993, then gave voters a straight choice between FPTP and MMP. This resulted in a 46% vote for FPTP, and a 54% vote for MMP, with an 85.2% turnout.

25 RCES, above n 7.

26 One of the reasons the Commission preferred MMP was the overall good impression it gained of West Germany's experience with using the voting system. See Jackson and McRobie, above n 17, 118-9.

27 RCES, above n 7, 28.

28 The four alternative voting systems considered in detail by the Commission were the Single Transferable Vote (STV) system; the Preferential Vote system used to elect the Australian House of Representatives; the Mixed Member Proportional (MMP) system; and the Supplementary Member (SM) system.

29 RCES, above n 7, 85.

30 A further theme, which cannot be fully recounted here due to space constraints, is that of blind chance. The decision to holda referendum on the future of the electoral process can be partly ascribed to a televised election debate held prior to the 1987 general election, in which the then Labour Prime Minister misread his briefing notes and accidentally committed his party to put the matter to a public vote. This commitment then led the National Party to make a similar promise — one it then felt unable to resile from when it came to power in 1990. See Jackson and McRobie, above n 17, ch 7.

31 RCES, above n 7, 50-1, 63.

32 The Royal Commission actually recommended the threshold be set at 4%, and suggested that this could be waived altogether for parties representing Maori interests if the Maori electoral seats were abolished. See ibid.

33 Comments made by the head of the Electoral Reform Coalition in the public debate over MMP: Colin Clark, 'MMP Seen as the Best Reform Option' The Dominion (Wellington, New Zealand), 9 November 1992, A8.

34 This right was granted in 1975 by the Electoral Amendment Act 1975 (NZ) s 33(1) (introducing a new s 87(2A) into the Electoral Act 1956 (NZ)), only then to be removed by s 31(1) of the Electoral Amendment Act 1980 (NZ). The Electoral Amendment Act 1990 (NZ), s 40(1) reinstated the right to list a candidate's party affiliation on the ballotpaper.

35 At the most, a Returning Officer was entitled to 'require' a candidate to 'produce evidence … of the candidate's eligibility' to claim accreditation with any party. See Electoral Act 1956 (NZ), s 87A (as amended by the Electoral Amendment Act 1990 (NZ), s 40(1)).

36 Electoral Act 1956 (NZ), s 25(1) (inserted by Electoral Amendment Act 1975 (NZ), s 9). On the changing law relating to citizenship qualifications see Caroline Morris, 'On Becoming (and Remaining) a Member of Parliament' [2004] Public Law 11. See also Andrew Geddis, 'Membership of the House' [2004] New Zealand Law Journal 30.

37 Electoral Act 1956 (NZ), ss 80-81.

38 Gerald Hogan, 'Federal Republic of Germany, Ireland, and the United Kingdom: Three European Approaches to Political Campaign Regulation' (1992) 21 Capital University Law Review 501, 523 (citations omitted).

39 Rein Taagepera and Matthew Shugart, Seats and Votes: The Effects and Determinants of Electoral Systems (1989) 38.

40 See Edmund Burke, 'Speech to the Electors of Bristol on Being Elected', in Iain Hampsher-Monk (ed), The Political Philosophy of Edmund Burke (1987) 108-11.

41 Electoral Act 1956 (NZ), s 15(2)(b).

42 See above nn 34-35.

43 Electoral Act 1956 (NZ), ss 127(1)(e); 127(2) (inserted by Electoral Amendment Act 1990 (NZ), s 32).

44 Peters v Collinge [1993] 2 NZLR 554, 575, per Fisher J. See also Margaret Wilson, 'Political Parties andParticipation', in Alan Simpson (ed), The Constitutional Implications of MMP (1998) 169.

45 Peters v Collinge [1993] 2 NZLR 554, 556.

46 See generally Neill Atkinson, Adventures in Democracy: A History of the Vote in New Zealand (2003).

47 Elizabeth McLeay (ed), New Zealand Politics and Social Patterns: Selected Works by Robert Chapman (1999) 324.

48 RCES, above n 7, 6.

49 Ibid 14.

50 With due acknowledgment to Graeme Orr, 'The Law Comes to the Party: The Continuing Juridification of Political Parties inAustralia' (2000) 3 Constitutional Law and Policy Review 41.

51 Political parties which do not wish to contest the Party Vote are not required to register.

52 Electoral Act 1993 (NZ) s 63(2).

53 Ibid s 71B.

54 Ibid s 66(1)(b).

55 Ibid s 71A.

56 Ibid ss 214F-214G. See generally Andrew Geddis, 'Hide behind the Targets, in Front of all the People we Serve: New Zealand Election Law and the Problem of “Faceless” Donations' (2001) 12 Public Law Review 51.

57 Electoral Act 1993 (NZ), s 214B. See generally Andrew Geddis, 'Regulating the funding of election campaigns in New Zealand: A critical overview' (2004) 10 Otago Law Review (forthcoming).

58 Ibid s 214C.

59 Electoral Commission v Tate [1999] 3 NZLR 174.

60 Electoral Act 1993 (NZ) s 127.

61 Ibid s 146B-146L.

62 While such challenges have been threatened on a number of occasions, none have yet reached the courts. However, a number of such cases have taken place in Australia: Baldwin v Everingham [1993] 1 Qd R 10; Clarke v Australian Labor Party (1999) 74 SASR 109.

63 Jeffrey Karp and Susan Banducci, 'Issues and Party Competition Under Alternative Electoral Systems' (2002) 8 Party Politics 123, 141.

64 Not only has there been an increase in the number of political parties represented in Parliament, but the diversity of individuals sitting as MPs has also increased under MMP. There are proportionately more women and Maori MPs sitting in Parliament than was the case with FPTP, and MMP has seen the election of the country's first Asian, Muslim, and transsexual MPs. See generally Jeffrey Karp, 'Members of Parliament and Representation', in Vowles et al (eds), above n 23, 130-145.

65 Standing Orders of the House of Representatives 1999, S.O. 145.

66 Mrs Awatere-Huata was a list MP, meaning that the effect of the move simply was to reduce ACT's overall vote in the Housefrom 9 to 8. A second MP – Maurice Williamson – also was suspended for a period from the National Party's caucus. However, theParty continued to cast his vote in Parliament during his suspension, and he was restored to full party membership in December 2003.

67 For an account of the background to this legislation, as well as its unintended consequences, see Andrew Geddis, 'Gang Aft A'gley: New Zealand's Attempt to Combat 'Party Hopping' by Elected Representatives', (2002) 1 Election Law Journal 557.

68 Electoral (Integrity) Amendment Act 2001 (NZ), s 5 (inserting a new ss 55C-55D into the Electoral Act 1993 (NZ). A party leader also must gain the approval of two-thirds of the party caucus before using this power to oust an MP.

69 The Supreme Court has given these party hopping provisions a very wide reading, holding that any MP who loses his or her political party membership automatically 'distorts proportionality'. See Prebble v Awatere Huata [2004] SC Civ 9/2004. Thisruling has the effect of enabling a political party's hierarchy to first expel an MP from the extra-parliamentary party using its own internal disciplinary rules, and thereafter remove the MP from Parliament using the party hopping law.

70 Graeme Orr, 'Of Electoral Jurisdiction, Senate Ballot Papers and Fraudulent Party Registrations: New Developments in Electoral Case Law' (1999) 2 Constitutional Law and Policy Review 32; Graeme Orr, 'Overseeing the Gatekeepers: Should the Preselection of Political Candidates be Regulated?' (2001) 12 Public Law Review 89, 92-93; Orr, above n 50.

71 Peters v Collinge [1993] 2 NZLR 554. However, see the comments of Elias CJ in Prebble v Awatere Huata [2004] SC Civ 9/2004, [36]-[37], [50].

72 Duverger, above n 20, 239.

73 RCES, above n 7, 57.

74 Ibid.

75 Opinion leaders were defined as, inter alia, political party executives, chief executives of public service ministries and departments, trade union leaders, education leaders, heads of interest groups, and MPs: see Boston et al, above n 3, 28.

76 Kare Strøm, Minority Government and Majority Rule (1990) 90, states, 'countries most influenced bythe Westminster model of democracy seem inclined to turn to minority governments rather than majority coalitions when their two-party systems fragment.'

77 The Constitution Act 1986 (NZ), s 6 does contain some guidance on who is eligible to become a Minister of the Crown; however, the appointment of individual Ministers is still the preserve of the Governor-General upon the advice of the Prime Minister. See Philip Joseph, Constitutional and Administrative Law in New Zealand (2nd ed, 2001) 279-81.

78 Jonathan Boston and Elizabeth McLeay, 'Forming the first MMP Government: Theory, Practice and Prospects' in Jonathan Boston et al (eds), From Campaign to Coalition: New Zealand's First General Election under Proportional Representation (1997) 207, 208-9.

79 Those circumstances are the absence of 'responsible advisers' who hold the confidence of the House. In New Zealand, those responsible advisers comprise the Executive Council, the body which has formal legal executive authority. Where it is not clear which partywill have the confidence of the House and be able to form the Government, the mandate of the Executive Council to tender advice to the Governor-General comes into question.

80 The exception was the 1993 election, which appeared on election night to deliver a hung Parliament. This did not eventuate since one seat changed hands on special votes and the Speaker was appointed from the Labour party, thus securing the National party a two-seat maj ority.

81 Boston, above n 3, 105-10; Mai Chen, 'Remedying New Zealand's Constitution in Crisis: Is MMP Part of the Answer?'[1993] New Zealand Law Journal 22; Caroline Morris, 'The Governor-General, the Reserve Powers, Parliament and MMP: A New Era' (1995) 25(3) Victoria University of Wellington Law Review 345; Andrew Stockley, 'The Governor-General and MMP' [1996] New Zealand Law Journal 213.

82 Dame Catherine Tizard, 'Crown and Anchor: The Present Role of the Governor-General in New Zealand' (Speech delivered at the Founders Lecture for the Friends of the Turnbull Library, Wellington, 26 June 1993); Sir Michael Hardie Boys, 'Governing under MMP: The Constitutional and Policy Challenges' (Speech delivered at the Institute of Policy Studies, Wellington, 3 December 1998); Dame Silvia Cartwright, 'The Role of the Governor-General', New Zealand Centre for Public Law, Occasional Paper No 6 (8 October 2001).

83 The reserve powers of appointment are not justiciable: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 418.

84 For a detailed examination of the coalition negotiations, see Boston and McLeay, above n 78, 207-46.

85 Boston et al, above n 3, 103.

86 Boston and McLeay, above n 78, 218.

87 Hardie Boys, above n 82.

88 These were NewLabour, Mana Motuhake o Aotearoa, the New Zealand Democrats and the Liberals. The Greens had initially formed part of the Alliance, but contested the 1999 election under their own banner.

89 Of course, such lengthy government formation periods are quite common in Europe: Boston, above n 2, 25.

90 Labour-Alliance Coalition Agreement (1999) 1.

91 For a summary of the policy positions in the agreement, see Fiona Barker, 'Negotiating with New Zealand First: A Study of its Coalition Agreements with National and with Labour', in Jonathan Boston et al, above n 78, 254.

92 Barker and McLeay, above n 1, 142, observing that '[t]he governing style was that of a majoritarian administration: therewas minimal consultation with the opposition parties [and] initially there was a high degree of continuity in the political culture.'

93 They kept up a fiction of togetherness in the House to avoid triggering the 'party-hopping' legislation, but effectively fell into two camps for all other purposes. See Geddis, above n 67.

94 PM Announces Election Date (Press Release, 11 June 2002). This ground for calling an early election has beenquestioned, since the Alliance had no incentive to face an early election, and was prepared to maintain the farce of togetherness to secure its parliamentary funding until an election was required. The Prime Minister was largely seen to be wishing to capitalise on the Labour party's relative strength in the polls.

95 This support, however, was conditional on the Government extending the moratorium on the release of genetically-modified organisms. The moratorium expired on 30 November 2003. It has been speculated that this uncompromising approach led voters to seek alternative supporters for a Labour-led government.

96 Wallace, above n 18, 730.

97 Ibid.

98 Ibid 729.

99 See also New Zealand State Services Commission, Negotiations Between Political Parties to Form a Government: Guidelines on Support From the State Sector (2002) for comment on the impact of MMP and coalition government on the conventions relating to caretaker government.

100 Michael Laver and Kenneth Shepsle, Cabinet Ministers and Parliamentary Government (1994) 297.

101 Simon James, British Cabinet Government (2nd ed, 1999) 6-7.

102 For example, Minister Derek Quigley resigned in 1982 when he publicly criticised the government's 'Think Big' policies. The Prime Minister gave him the option of apologising to his Cabinet colleagues or resigning. Although see Philip Joseph, 'The Honourable DF Quigley's Resignation: Strictly Political - Not Constitutional' (1982) 1 Canterbury Law Review 428, questioning the relevance of the convention.

103 Cabinet Office, Cabinet Office Manual (1996) 36, [3.4]-[3.5]

104 National-NZ First coalition agreement, section 7.6.

105 Labour-Alliance coalition agreement, 1.

106 Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law (8th ed, 1998) 198. See also Jonathan Boston, 'Forming the Coalition Between Labour and the Alliance', in Boston et al, above n 4, 239, 258.

107 See Bale and Roberts, above n 18.

108 Under the Act, voters submit potential referendum questions to the Clerk of the House. Upon his approval of the question, they have 12 months to garner the signatures of 10% of all registered electors supporting the holding of a referendum on that question. If these are collected, then the referendum will proceed.

109 Citizens Initiated Referenda Act 1993 (NZ), s 4.

110 Mark, Gobbi, The Quest for Legitimacy: A Comparative Constitutional Study of the Origin and Role of Direct Democracy in Switzerland, California and New Zealand (LLM Thesis, Victoria University of Wellington, 1994) 225-8Google Scholar

111 New Zealand, New Zealand Parliamentary Debates, House of Representatives, 10 March 1992, vol 522, 6713 (Christine Fletcher MP).

112 In 1995, a referendum was held on the appropriate number of firefighters to be employed. In 1999, two questions were asked in conjunction with the general election, one asking whether the number of MPs should be reduced to 99, the other asking wide-ranging questions covering several aspects of criminal justice reform. It is interesting to note that use of the CIR Act by way of petition questions submitted wasat its peak from 1993-94. The number of questions submitted has declined since, to the point where only two or three are submitted in each year(and in some years, none).

113 Some are sourced in the unrestricted, open-ended nature of the Act, which allows multi-faceted, unclear, and ambiguously worded questions to be approved. This in turn makes it difficult for voters to understand what the petition question might actually mean, and for the government, it becomes hard to respond when it cannot clearly interpret the public's verdict on the question. For further detail, see Caroline Morris, 'Improving Our Democracy or a Fraud on the Community? A Closer Look at New Zealand's Citizens Initiated Referenda Act 1993' (2004) 25 Statute Law Review 116.

114 These were the firefighters question, and the MPs question.

115 The government has instituted some reforms in the criminal justice area, mostly to do with sentencing, but has not implemented the specific reforms required by the referendum question.

116 RCES, above n 7, 175.

117 Witness the many petition questions proposing that referendums held under the Act be binding instead of indicative.

118 Thomas, Cronin Direct Democracy (1989) 228, posits that this may result from the adoption of direct democracy measures.Google Scholar

119 Norris, above n 19.

120 Like all general rules, there are some notable exceptions: Switzerland and the US both have low rates of turnout, but are stable democracies.

121 Electoral Act 1993 (NZ) s 82.

122 RCES, above n 7, 15.

123 Ibid, 55.

124 Jeffrey Karp and Susan Banducci, 'The Impact of Proportional Representation on Turnout: Evidence from New Zealand' (1999) 34 Australian Journal of Political Science 363, 367-8.

125 This decline, stemming from voters' unease with the extended coalition negotiations in 1996 and the unexpected party alliances that resulted, were predicted by Karp and Banducci, ibid 375.

126 Electoral Commission, Report on the General Election 2002 (2002), Appendices to the House of Representatives, E.9, Part IX.

127 Arend, Lijphart, 'Turnout' in Richard, Rose (ed), International Encyclopedia of Elections (2000) 314, 319Google Scholar

128 But see the comments of Wallace, above n 18.

129 MMP Review Committee, Inquiry into the Review of MMP (2001), Appendices to the House of Representatives, I.23A, 83.

130 Ibid 7.

131 Ibid 81-80.

132 Ibid 81.

133 As Vowles notes, there is 'little evidence that MMP has so far facilitated a less polarised and adversarial parliamentary culture': Jack Vowles, 'Evaluating Electoral System Change: the Case of New Zealand' (Paper presented at the XVIII World Congress of the International Political Science Association, Quebec City, August 1-5 2000) 15.

134 Ibid 9.

135 Ibid.

136 In 1993, a nation-wide opinion poll conducted by Insight Research revealed that 80% of New Zealanders thought that MMP would create more consensus in government decision-making, and 52% thought that MPs' behaviour would improve under MMP: see Graeme Hunt, Why MMP Must Go (1998) 79.

137 Bale and Roberts, above n 18.

138 Measured by requests to withdraw and apologise and/or evictions from the Chamber.

139 MMP Review Committee, above n 130, 35.

140 'MMP gaining support', New Zealand Herald (Auckland, New Zealand), 5 August 2002.

141 MMP Review Committee, above n 130, 9.

142 James Madison, 'The Federalist No 51' in Alexander Hamilton, James Madison and John Jay, The Federalist Papers (first published 1788, 1961 ed) 320, 322.

143 Electoral (Integrity) Amendment Act (2001) (NZ).

144 Electoral Act 1993 (NZ), s 71.

145 This issue was a central reason for the divergent interpretations of the party hopping law adopted by the majority of the Court of Appeal and the Supreme Court in the Awatere Huata Case. Compare Awatere Huata v Prebble [2004] NZLR 359, [153] (CA) (Hammond J), with Prebble v Awatere Huata [2004] SC Civ 9/2004, [73]-[85] (Keith J).

146 Karl Popper, The Poverty of Historicism (2nd ed, 1961).

147 See Geddis, above nn 56, 57; Morris, above n 113.