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National Business Review
November 21 2008

What John Key must do first
There are people who cast votes on non-economic grounds. This is about what they want from the new PM
by James Allan

JOHN KEY: Chairing his first cabinet meeting this week

James Allan is Garrick Professor of Law at the University of Queensland.
For 11 years, he was in the faculty of law at the University of Otago






We all know that many of new Prime Minister John Key's early decisions will be focused on the economy.

No matter how anyone tries to spin things, in the past nine years of Labour government rule New Zealand has done comparatively badly in terms of per capita gross domestic product, or wealth per person.

During that time New Zealand has slipped down the OECD rankings from 20th, in 1999, to 22nd. So no matter how well people might try to say New Zealand has done, other developed countries have done better. Lots and lots of other places have done better.

Aiming for policies that have at least a hope of producing a growth rate that will lift New Zealand back into the top half of OECD countries - or maybe even just back to where it was in 1999 - will be taking up a lot of Mr Key's time. Or at least one hopes it will.

But man does not live by bread alone. Indeed many voters cast their votes on non-economic grounds. There are things that matter to them more than tax rates, the increasing numbers of people working in the public service side of the economy, or how to improve New Zealand's comparatively mediocre economic growth rate.

The rest of this article is for them. It's my list of what I hope John Key will do in the first half year of his premiership in the non-economic sphere.

First, I'd like to see him pardon Peter Ellis. I don't think Ellis did what he was accused and indeed convicted of doing. I think he's innocent. Worse still, New Zealand has a criminal standard of proof of "beyond reasonable doubt."

It's premised on the general viewpoint that it's better that 10 or 100 guilty go free than that one innocent person go to jail. That means the test is not "do you think he did it" but rather "have you got any reasonable doubts at all." Put more bluntly, lots and lots of acquitted people in our system were in fact guilty. There just wasn't enough evidence to convict them.

On that legal standard it is incredible that Ellis was convicted and that the legal system has continued to stand by that decision. I think Ellis is out and out innocent. On the required legal standard it is near on a travesty that he was convicted.

Mr Key should pardon him now, as is the prerogative of the executive arm of government. Failing that, he should bring in a judge from overseas to consider again the merits of the conviction.

Ellis should have his name cleared while he's still alive.

Second, Prime Minister Key needs to make good on his MMP referendum pledge. There are many vested interests that will try to dissuade him - the minor parties, the list MPs, the Wellington bien pensants. But the fact is that MMP proponents are scared witless of a referendum. Why? Because they know they will lose. They can't say that. So they have to have recourse to sophistries and the trial lawyers' best friend, delay, delay, delay.

Let me be blunt. John Key will be responsible, and be seen to be responsible, if no referendum ends up being held. He needs to move up the timetable for this. There is no reason that one can't be held by the time of the next election.

In fact, I would suggest starting with a referendum to choose between first-past-the-post, STVor AV/preferential voting. All three are better than MMP The second is the Irish version of proportional voting that eliminates the egregious list MPs. The third is Australia's lower house voting system where you have to rank candidates, which in my view is the best option going.

Do this in the next year or two. Then put whichever of those three prevails up against MMP in a binding referendum at the next election.

If Mr Key doesn't ensure this happens at pace, then the forces that have for so long fought off any passing of judgment by voters on MMP may well manage to stall for years to come. If so, it will be the National Party and Prime Minister Key who will be held accountable.

After all, what is being requested here is simply a say for all New Zealanders on their voting system after more than a dozen years. Hard to oppose that without implying the voters don't know what's best for them (which, to be honest, is what plenty of chardonnay-sipping self-styled experts think, but dare not say).

Third, the awful Electoral Finance Act needs to go. To start, it could be repealed lock, stock and two putrid barrels. That would take us back to the old arrangements. No doubt they could be improved on. But there would be far less urgency to do that than to rid us of this statute.

Finally, I think Prime Minister Key needs to reconsider his support for the anti- smacking law. It is widely disliked by New Zealanders. To claim that it won't be enforced, which sotto voce is the widespread assurance made by its supporters, is to advocate a position that simply undermines the rule of law.

"Here is a law," they say, "but don't worry we won't really enforce it against nice middle class parents." Wink, wink, nudge, nudge. "Only those lower down the socio-economic scale who use belts or bats will be prosecuted."

But before this rule of law infringing anti-smacking law came in people could already be prosecuted for hitting their kids with bats. In fact they were. Mr Key needs to reopen this question for New Zealanders.