Turning controversy into status quo

The Electoral Finance Act passed amid controversy late last year will not be the law for the 2011 election if National leads the next government. It is likely to need amendment whoever is the government.

So will all that damage the Labour-led government did to itself, leaving a public impression it was attacking free speech, have been for one election?

Not exactly. The National party, itself stung by the counterproductive intervention by the Exclusive Brethren in 2005, backs the law’s controls on anonymous donations to parties’ campaign warchests.

On this there was something approaching cross-party consensus, even if not on the detail.

There is also something approaching cross-party consensus on many policies which once were matters of high controversy. Examples are the ban on nuclear-armed warships, the legalisation of homosexuality, civil unions and prostitution, the law requiring redress of breaches of the Treaty of Waitangi and the open economy.

This is one of the ways our politics resolves contentious matters. A party or grouping writes new legislation and over time opposing parties came to accept as status quo. It becomes a centrist position with voters and the two big parties don’t dare challenge it.

The National party opposed the welfare state Labour introduced between 1935 and 1949 but then in office after 1949 it essentially took it over, along with most of the economic controls Labour had also introduced. The 1975-84 National Prime Minister, Sir Robert Muldoon, said he could impose almost any controls under the 1948 Economic Stabilisation Act.

The reverse happened in 1999. Helen Clark and many of her ministers had opposed most of the 1984-90 Labour government’s liberalisation economic reforms and National ministers’ continuation of them after 1990. But once in office they left most of them in place.

One major exception was workplace relations law. Labour (and, initially, Alliance) ministers’ legislation restored many of the rights to organise and bargain that National’s Employment Contracts Act had stripped away.

This was ideology in action. The workplace is the great divider of National from Labour. Labour people see wages as sustenance. National people see wages as a cost.

A year ago John Howard said to me that if his Liberal-National Coalition got another term in 2007, his Work Choices labour deregulation would be secure. He was defeated so his expectation cannot be put to the test. Moreover, his successor as Liberal leader, Brendan Nelson, disavowed the policy on December 19, less than a month after the election. His reason: the landslide defeat.

Here National has not been so dramatic. But over the three terms of the Clark government it has decided to accept much of the Clark workplace legislation. Union advantage in wage negotiations might go, the holiday provisions would be reworked and some other smaller changes, such as the right to seek flexible working arrangements, softened.

Contrast that with National’s late third-term privatisation of accident compensation. Had it done that in 1991, Labour would have found it hard to undo because it would have become embedded in business practice, though it might have made some changes. Because it was newly introduced, the Labour-Alliance government could reverse it completely.

The National party now views “privatisation” as a “third rail” issue — touch it and you are dead. So it has backed away from 20 per cent selldowns of state-owned enterprises even though they would be popular with mum-and-dad investors. And it quickly leapt back from a stray comment that private companies could own schools, even though Labor in Australia is comfortable with that.

But if, in office, National does both and if it stays in office three terms, a subsequent Labour-led government would be most unlikely to reverse them. The current in the “third rail” would likely have reversed. Dividends would have flowed. There would be public demand for bigger shares of the SOEs.

The tides of public acceptance of new policy (other than big lollies like interest-free student loans) are slow-moving. Sudden, controversial policy jars and initially can be readily reversed. So with the Electoral Finance Act.

There is another option for sensitive policy such as, especially, electoral law. It is to build public participation into law-making by way of citizens assemblies or broad-based interest group forums charged with actually developing the policy.

Had the Clark government done that in its determination to avert a repeat of the 2005 Brethren episode, it might have been enacting well supported legislation last year. Instead, it made a fiasco and guaranteed its reversal.