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NZ Legislative Council Reform

Uhura's Mazda

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Tamaki Makaurau
I'm going to do a series of posts discussing every attempt that was made to reform New Zealand's upper house, which was established in 1854 and eventually petered out in 1950, having contributed little to the nation. Although an elected chamber was discussed at the outset, it was put in the Too Hard pile and reform was only pursued desultorily.

For the sake of my sanity, I'm leaving out all the bills which sought only to, for instance, change the term of office of Legislative Councillors, or allow Ministers to attend and speak in the Legislative Council debates in a non-voting capacity. I will only cover those that dealt with making the Council elective.

First off:

The Grey Bill: Elective Council Bill, 1879

George Grey was an Aucklander and a liberal, who lied in order to incite a race war when he was Governor in the 1860s, and supported a Land Value Tax when he was Premier in the 1870s. It is therefore impossible to say whether he was good or bad. Grey tussled with the problem of the Legislative Council when he came to power in 1877 and immediately faced a confidence vote - he sought to bolster his numbers in the upper house by nominating a new Councillor, but this was rejected by the Governor as he hadn't yet demonstrated that he had the confidence of the lower house. This set the tone for the rest of his two-year occupation of the role of Premier, which was a failure in all respects.

Just after he lost office in 1879, Grey finally got round to putting forward his LC reform bill. This sought to set up a 27-member Council, with 12 members being elected by each island, served by one constituency apiece. Two Councillors would be elected by North Island Maori under the same system, and one by the South Island Maori under First Past the Post. The equality of membership between the two islands points toward a quasi-federal idea of the role of the Council, which might have given it some sort of Point as a body. However, the choice of bloc voting would be pretty unwieldy in constituencies of that magnitude, and would have produced hilariously one-sided results once the party system developed - in much the same way as the Australian Senate did. The term was set at three years, and appears to have been intended to be simultaneous with lower house elections. Casual vacancies were to be filled by by-elections, which is possibly the worst idea I have ever heard. Nonetheless, Grey considered his proposals to be so strong that a Legislative Council reformed in this manner would obviate the need for the lower house!

The Grey Bill failed at the first reading.

Uhura's Mazda

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Tamaki Makaurau
The Whitaker Bills

Sir Frederick Whitaker, a conservative Premier, was one of the only talented Legislative Councillors, and was steadfast in supporting reform. During the 1880s, just after he stopped being Premier for the last time, he introduced a spate of reform bills which - unlike Grey's - came from the upper house as opposed to the lower. He also put much more thought into his proposals, being relatively consistent in his ideas, whereas Grey just jumped on any idea that was trendy at the time.

Legislative Council Bill, 1883

This was a much longer and more intricate bill than Grey's of four years prior, involving all sorts of provisions regarding things like the salaries of returning officers. It also had a complicated transition system, whereby the existing Council would elect 22 of its number to continue in office until 1890, with the rest being expelled from the chamber in 1885 to make way for the same number of new elected Councillors, with another 22 elected in 1890. Councillors would have a ten year term and be elected in halves. As these five-yearly elections would only occasionally coincide with elections for the lower house, I'd predict some woeful turnouts.

The constituencies were drawn up as corresponding to the two main islands, each with the same number of seats as in the Grey proposals, although Whitaker has 22 seats per island (11 up in each election). Another change from the Grey Bill is that the seats would be elected by STV, although voters would only be able to cast 11 preferences, which is a bit weird. Another problem is that voters would have to write their eleven names with the pencil provided (the Bill is very clear on this, as the original experiment with the secret ballot in Australia had used pen and ink and loads of votes had been ruined with ink blots). So basically, you had to be literate and capable of remembering the proper spellings of your favoured candidates' names if you wanted to cast a valid vote. This would, I suppose, create a sufficiently limited franchise that the Council would be noticeably more Elite than the lower house and thereby fulfill one of the functions of a Westminster upper house.

Casual vacancies would be filled by a poll of the existing members of both houses, voting day after day until one candidate had a majority, which would inevitably lead to Fun And Games. The Governor could nominate on his own initiative if this process failed to elect a new member, but there's nothing in the bill to say what 'failing' means - there's no maximum number of ballots after which the problem is referred to the Governor.

The Governor would also have the power to nominate up to three Maori members (unelected this time) and anyone else who the Premier wanted to make a Minister - which, again, could lead to Fun And Games if a Government decided that it wanted, say, 50 Cabinet Ministers and none of their lower house members were suitable.

Once more, however, this bill did not reach a second reading. But Whitaker wasn't finished yet.

Legislative Council Bill, 1885

Much shorter and simpler than Whitaker's first effort, this bill was coterminous with the operation of a Select Committee which Whitaker managed to get established. It is a much tamer beast than the 1883 version: essentially, the current membership is to stay on until their terms expire (they were life members, so, er...), until membership is exactly 50% of that of the lower house (i.e. 47), after which point new members are elected in exactly the same way as the casual vacancies were to be filled in the 1883 Bill - that is, exhaustive ballot of existing members of both houses. The new members would have a ten-year term. Thus, Whitaker is now backing indirect election.

The Governor can still nominate Councillors if the election 'fails' (again, no specifics), and when a Minister needs to enter Parliament, but there is no provision whatsoever for Maori members, except for if they happen to win a ballot of 150 white guys.

There was deemed to be no likelihood of this one actually passing through the House of Representatives, so the Legislative Council passed it and it promptly died.

Legislative Council Bill, 1889

Virtually the same as Whitaker's previous attempt, with two differences. This time, there would be two Maori members elected in the same way (presumably there would be an All Maori Shortlist when a Maori Councillor's term expired, but there's nothing set out). Also, the term was reduced from ten to seven years.

All of these Whitaker Bills contained provision for a Joint Sitting of both Houses to resolve a deadlock, as exists in the Australian Constitution.

As there was a bit of a mood for reform floating in the air at the time, and Whitaker was the Government's Leader of the Council at the time, the Legislative Council decided not to run the risk of letting the lower house get their hands on it. They rejected the same Bill they'd voted for a few years before, leaving Whitaker to die soon afterwards with nothing to show for a decade of hard work.

Uhura's Mazda

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Tamaki Makaurau
Minor Liberal Bills

As the 1890s dawned, the Liberal Party formed in opposition to the conservative Government of which Whitaker formed part, and then took power in a nailbiting election - it wasn't clear exactly how many of the elected members would actually support the Liberals, so there was a constitutional crisis about Councillors being appointed by the outgoing ministry in its lame-duck period, and an attempt by the incoming Government to swamp the Council with their own people. The Liberals promised reform, but all this amounted to was a reduction in term length from Life to 7 years - which wouldn't apply to the existing life members.

Over time, radicals on the Left of the Liberal Party became alienated with the Party's incremental-to-nonexistent attitude towards Progress - on pretty much every policy area. As such, disgruntled Liberals occasionally put forward Bills to reform the upper house.

Elective Legislative Council Bill, 1899

Frederick Pirani was a radical Liberal with Knights of Labour endorsement, who made a habit of voting against the Seddon Government and generally making a nuisance of himself. He was part of an attempt to create a new Radical Party in the mid-90s, but merely became an Independent Liberal. In 1899, he introduced this Bill, which was two pages long and largely drawn from earlier efforts.

Pirani proposed 17 members for each island, plus 3 Maori elected by the Maori roll population of each island (two for the North, one for the South, as in Grey's Bill). He returns to Grey's use of Bloc Voting (which was used for city electorates in the lower house at the time, so isn't as retrograde a step as it sounds), but now the term is five years all-up. The same issues of unwieldy constituencies and off-year elections present themselves. Vacancies are to be filled by FPTP by-elections.

It's basically the same as the Grey Bill, which figures as Grey was by now a totemistic figure for the Liberal left. Pirani's Bill did equally badly as his forebear's.

Elective Legislative Council Bill, 1902

Now spearheaded by Harry Ell, an Independent Liberal MP, Knight of Labour and wowser from Christchurch, Legislative Council reform is in safer hands than Pirani's. Ell and Pirani being Prohibitionists is important, as the Prohibition lobby was the only organised body with a vested interest against the Council - it had thrown out their Alcoholic Liquors Sale Control Bill in 1896 and they responded by attempting to bypass the Council's oversight of lower house legislation by getting the question put to a referendum. The licensing referendum became a permanent feature on the NZ electoral landscape until 1999.

Ell finally abandons the fixation on island-wide electorates. Instead, the lower house constituencies are to be put in contiguous pairs to elect one Council member between them. The four Maori electorates thus return two Maori Councillors, while the Europeans are up to 38. One difficulty Ell foresaw was the fact that the city electorates for the House were three-member seats elected by bloc vote - for these, he proposed combining each city electorate with one adjoining suburban seat to make a two-member Council constituency. Election was to be by FPTP for the single-member seats and bloc vote for the two-member seats. By-elections were to be held for vacant seats.

The other fix Ell presented was to have the Legislative Council elections occur at the same time as general elections (returning to Grey's idea). Now, the problem with this is that if the upper house is just the lower house but with a slightly less democratic voting system (larger constituencies favouring conservatives), then there's no real legitimacy for the upper house in a deadlock situation. To combat this, Ell makes the upper house term six years, so the Council would be elected at every second general election. This is somehow an even worse idea, because now every other Government has to deal with a Council that is not only less democratic, but was democratically elected at the previous election. Elections in halves don't cross Ell's mind, but this is a stronger Bill than most, despite just being two pages long, and didn't deserve to be rejected at first reading.

Elective Legislative Council Bill, 1903

Ell re-submitted his Bill the next year, this time with some minor reformatting. Again, it was rejected on the first reading.

In the same session, some other random MP put forward a 'Legislative Council Direct Election Bill', but it was literally just the title of the bill on a piece of paper with no actual text. However, by now, the conservative Opposition was sensing an opportunity to embarrass the Liberals over their division on Prohibition, and William Massey (the leader of the opposition) moved during another debate that the Government should introduce legislation in the next session to make the Council elective. Seddon was trapped...

Uhura's Mazda

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Tamaki Makaurau
The Steward Bills

Sir William Steward, the former Speaker and then-current MP for Waitaki, introduced a series of private members' bills in the late stages of the Liberal Government, and came the closest to victory of any previous reformist.

Legislative Council Reform Bill, 1904

Although Seddon had been forced by the Opposition to pledge the introduction of a Government-sponsored reform bill, he did not keep this promise and instead pointed to Steward's bill as the opportunity that was on offer - even though it was considered stupid to amend the constitution through a private members' bill, and even though it originated in the lower house as opposed to the upper. Only Whitaker's bill had fulfilled that latter criterion.

This Steward Bill was similar to Whitaker's later attempts. The existing members would stay in office and die off until the membership fell to 40 (by this point 50% of the lower house, again as in Whitaker), which was to be made up of 38 Europeans and 2 Maori. The method of election was also similar to Whitaker's, except that in this case the members would be elected by straight FPTP, without having to win a majority vote of the legislature after several ballots. Steward also made progress on the question of what was to be done if there was more than one vacancy - Whitaker provided for two simultaneous elections, which would obviously have got messy as candidates gamed out who would contest which election; Steward just proposed bloc vote. In terms of the filling of vacant Maori seats, Steward says that the Speaker would have to notify Parliament that the vacancy was of a Maori seat, but doesn't set out any rules saying that only Maori can contest such a vacancy.

The new Councillors would serve for seven years or - interestingly - until their 77th birthday. This was probably a response to the increasing average age of the existing Councillors, but I'm not sure such a high retirement age would have any impact on public opinion or the uselessness of the legislators.

As the Opposition was seeking to embarrass the Government, and as Government backbenchers were ideologically favourable towards reform, this was the first reform bill to reach the third reading, the entire Government payroll vote turned against it and it was defeated. This is the first of these that might plausibly have passed in an ATL.

Legislative Council Reform Bill, 1905

The next year, Steward reintroduced his Bill, with a few minor changes. This time, if the number of candidates did not exceed the number of vacancies, they would be elected unopposed. Steward also gives up on FPTP (which could just go horribly wrong if, say, a faction of dissident Liberal MPs nominated a spoiler candidate) and returns to Whitaker's exhaustive ballot idea. There is now a rule that only Maori can contest Maori vacancies, and we return to the idea of Ministers outside of Parliament being given Council seats for as long as they serve as such.

This one failed on first reading.

Legislative Council Reform Bill, 1906

Exactly the same as the previous one, but I will just add that in all of Steward's bills, he provides for a second and third ballot on the following days in order to resolve a tie. If there is still a tie, the Speaker gets a casting vote, which would be interesting - there's no way for the Speaker to stick by Speaker Denison's Rule, is there? Opportunities for Drama abound. At least Steward actually set out the conditions for the ballots 'failing'.

Legislative Council Reform Bill, 1907

It is the same Bill.

At the second reading, the only substantive amendment was the extension of the voting period from 12-2 to 12-2:30. The previous hours had been set out in every previous version of the indirect election bills.

The 1907 Bill was so close to being passed. Seddon, whose use of patronage had wedded him to keeping the Council in its present form, had died in 1906, and this was the first reform bill faced by his successor, Joseph Ward. The Opposition and most of the Liberals were in favour, as were the press - although everyone had different ideas on how the reformed Council would look. Steward's Bill was just the option that was on the table at the time. And as such, it passed it's third reading in the lower house, 35:28.

And was then rejected out of hand by the Legislative Council, bolstered by 15 new patronage appointments made by Ward.

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Uhura's Mazda

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Tamaki Makaurau
The Russell Bills

George Warren Russell was another left-wing Liberal who - moreover - had trained as a Methodist Minister but quailed at the requirement to move around. As such, he went on to operate newspapers in four different towns and cities. Unusually for someone of his political and religious persuasion, he was an opponent of Prohibition. He probably thought that this would make him a neutral figure when he introduced his Bill for the reform of the Legislative Council, after Steward had given up on the endeavour.

Legislative Council Reform Bill, 1910

This was a spiritual descendent of the Bills put forward by Harry Ell, in that it sought to end the terms of the existing Councillors forthwith and replace them with 40 directly elected replacements, coming from constituencies made up by combining lower house electorates (as opposed to Grey's island-wide electorates). Unlike Ell, though, Russell favoured combining four constituencies into a single upper house seat, which would elect two members. Thus, for instance, the four Maori seats would be combined to elect two Councillors in one big electorate. At the first general election following the passage of the Bill, both members would be elected. The lower-polling one would serve a three-year term until the subsequent election, while the higher-polling Councillor would serve six years, thus creating a Council that would be elected in halves, just like the Australian Senate. This was certainly a step forward from Ell's idea of just electing the whole Council at every second GE.

To save on by-election costs, vacancies would be filled by the Council making a resolution. There wouldn't actually be a poll, which makes this different from the Bills proposing indirect election, but the putative replacement would obviously have to gain the support of a majority of the voting Councillors.

The other interesting point in Russell's Bill was that the Councillors would be elected by a preferential voting system - sort of. Voters would be allowed two preferences, which would essentially turn the voting system into Supplementary Vote (used to elect Mayors in the UK) in a single-member election. But the initial two-member election would be by a very limited form of STV, I guess.

Russell never expected this effort to pass, and it was just used as a talking-shop exercise to keep the issue alive.

Legislative Council Reform Bill, 1914

The only substantive difference in Russell's second attempt was that the Councillors kicked out by the reform would be able to draw their salary until the time when their term would have ended. By this point, Russell had been a Cabinet Minister and a leadership contender - but his reform drew even less enthusiasm than the one of 1910, as the Liberals were in Opposition and the new Reform Government was making serious strides towards a reform of their own.


Trans-Mercia Pedestrian
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The equality of membership between the two islands points toward a quasi-federal idea of the role of the Council, which might have given it some sort of Point as a body.
I don't have my references to hand, but in terms of (white) population, wasn't the South Island still the larger at the start of this period, with parity and then cross-over coming some time later?

As with the various other provisions of the schemes, this too might have led to Fun and Games.

Tsar of New Zealand

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I don't have my references to hand, but in terms of (white) population, wasn't the South Island still the larger at the start of this period, with parity and then cross-over coming some time later?

As with the various other provisions of the schemes, this too might have led to Fun and Games.
Indeed. The South Island currently has one-quarter the population of the North.

If you thought Bill Massey, Rob Muldoon, and Sid Holland had big pork barrels, you ain't seen nothin' yet.

Uhura's Mazda

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Tamaki Makaurau
The Bell Bills

Sir Francis Henry Dillon Bell, NZ's second-shortest-serving Prime Minister, was a patrician political dynast who was compared to Asquith by his friends. His father was an inaugural member of the Legislative Council and Leader of Government business there; his son was the last member to be appointed to the Council as part of the Suicide Squad sent to abolish it. Francis Bell, in the middle of the two, was the Reform Government's point-man in the upper house and was obsessed with reform. If anyone could manage it, Bell could.

Legislative Council Elections Bill, 1912

In the same session as Reform's coming to power, and Bell's entry into the Legislative Council, he introduced his Government Bill to make the Council elective. Existing members would serve out their terms, but at the next election, each island (the island-wide electorates again) would elect ten new members for a six-year term, and do the same at the next election. Thus, the seven-year-term Liberal Councillors would pass out of the Council and be replaced by 40 new members, elected by halves. There were at this point 7 remaining life members.

If a poll were needed, the elections would be carried out by STV, with voters ranking as many candidates as they liked, as long as they expressed at least 4 preferences. By-elections would not be held; instead, the Council would select an acceptable replacement out of the unsuccessful candidates at the last Council election - which seems like an obvious opportunity for malcontents to complain that the Council was a chamber of losers.

There was no proposal to make Maori seats elective, and these would continue to be nominated by the Governor - and no minimum or maximum number of such appointments was explicitly set.

This is the best voting system put forward by far, but it still falls down on the island-wide electorates thing. Even at the time, there was criticism on the grounds that only those with independent means could fight for votes across a whole island.

Bell introduced his Bill in the upper house, as was constitutionally proper. He had been the only Reform nominee there so far, to avoid the allegation that they were swamping the Council, so he faced a tough crowd and struggled to find a seconder. One wag proposed in the debate that the Bill be retitled 'An Act to provide an Experimental Election by Ballot in a Weird and Cumbersome Method not Relished or even Understood by Members of Parliament, and therefore applied to Members of the Council'. In point of fact, Massey was keen on expanding STV to the lower house as well, but changed his mind based on this debate and on a negative investigation into how the system worked in Tasmania. In any case - Bell used all his political capital (then relatively small, as he hadn't yet made a name for himself) in persuading the Council to approve it in the first reading, but it was then wrecked and delayed in committee, so it had to be reintroduced in the next year.

Legislative Council Bill, 1913

Instead of reintroducing the same Bill, Bell made significant changes during the recess. The method of transferring votes was slightly improved; the requirement for the Council to fill vacancies from the defeated candidates of the previous election was removed; and a maximum of 3 Maori members was introduced, such members being appointed by the Governor for a six-year term.

Most importantly, the island-wide constituencies and the elections in halves were changed, Bell having been hammered on the former issue. The country would instead be divided into four constituencies, two for each island. The constituencies within each island were to be cobbled together out of existing lower house electorates to form two constituencies of equal size, to elect an odd number of Councillors. Under normal circumstances, the North Island electorates were to elect 11 each, and those of the South Island 9, to make a total of 40. However, these would be reduced to 7 and 5 until the existing seven-year terms expired. The ratio of seats between the North and South Islands would float, so nowadays the North Island seats would probably be larger and vice versa.

The smaller constituencies were thought to make elections in halves unfair, so the whole Council was to be elected at every second election (well, technically, the next election held after five years since the previous Council election had elapsed, but come on - it's basically a six-year term, barring snap election unusualness or wartime election delays). This was quite stupid, though, as electing 4-5 members at a time is pretty much the optimum way of using STV, and you run into the same problems as Ell did in the lame-duck period of the upper house term.

This Bill fared little better than the last, with Bell becoming quite exasperated - he had come in as a lawyer arguing a case rather than as a diplomat seeking to win people over, and was paying the price. Tetchily, he challenged the Council to come up with a better model for reform. They couldn't.

Legislative Council Bill, 1914

This was Bell's last chance to get the measure passed in advance of the general election, which Reform weren't confident of winning. This fact forced the one substantive change in this Bill versus that of 1913. It was felt by the Liberal Opposition that it was unfair for them - if they won the election - to be bound by a reform which hadn't been approved by the voters (they wanted the PR system to involve over-representation of rural areas), or to have to live with the fact that they couldn't nominate any more Councillors to secure its repeal. As such, Reform compromised. They delayed the coming into effect of the Bill until the next election, and allowed further nominations until 1916.

It was this Bill, amended slightly and unimportantly on its way through both houses, which passed and became law. Proposals to allow the election of women and to replace the nomination of Maori with election were rejected. Reform won the 1914 election after all, making the compromise pointless - but even so, the changes killed the Act as soon as it was passed. The reforming fire had gone out of the Reform Government, and Massey decided that he didn't like STV after all and that he liked having the power to name Legislative Councillors. Furthermore, part of the deal whereby the Liberals agreed to come in to form a National wartime Government was that the Act wouldn't come into effect until after the coalition was dissolved. So a further Amendment was passed, delaying the implementation. And then, when the war turned out to be longer than expected, another delaying Amendment was passed.

At the end of the War, Council reform was just so much water under the bridge, so a final Amendment was passed, under which the Act would come into effect whenever the Governor ordered it to. This had two results: firstly, nobody bothered to submit any more reform bills, as there was already an Act that could be taken off the shelf at any point; secondly, the Council just complied with everything the Government of the day desired, for fear that even the slightest glimmer of independence would bring the guillotine down. For the next thirty years, then, the Council atrophied and became utterly pointless, to the point where it was simpler for Sid Holland to abolish it than to waste time thinking of ways to reform it.

And that was the end of Legislative Council reform in NZ.

Uhura's Mazda

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Tamaki Makaurau
Indeed. The South Island currently has one-quarter the population of the North.

If you thought Bill Massey, Rob Muldoon, and Sid Holland had big pork barrels, you ain't seen nothin' yet.
I'm not particularly down on the over-representation of the South Island in these schemes - upper houses are there to challenge the lower house to cater for particular groups of people, be that The Rich (in the House of Lords), people outside the political mainstream (in the Australian Senate), or less influential areas (in the US and Australian Senates). The quasi-federal option is one of the few things in these proposals which would have given the Council an actual purpose - the other being the introduction of STV, but even then, that only starts to make sense in the 20th century when multiple political parties started winning seats.

Ironically, it might become particularly useful after the Country Quota was abolished in 1946.

But yes, there's so much fun stuff that would come about with this source of pressure on Governments to serve the South Island - both good and, er, bad.


The Most Kiwi Aussie of them all
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I once went for a drink with one of Bill English's speechwriters (this was way back in the mid 2000s, long before the return to government.)
His personal idea was that when MMP was brought in, the upper house should have returned as well.
The House of Representatives remains full of constituency MPs- the List elects the upper house.