Entrenching MMP

This is something which has been bugging me for a while, so its time to vent: people keep saying that MMP is entrenched. It's in the government's nitpicking response to the Stavenhagen report, where they say

The Report recommends the entrenchment of the MMP electoral system (paragraph 54). As the Government has advised the Special Rapporteur, the electoral system is entrenched, requiring either a 75% majority in Parliament or a referendum to change it.

It's on the Elections New Zealand website on referendums in New Zealand, where they say

A binding referendum is one way to change entrenched legislation, like the use of MMP...

And it shows up in my comments, as in this recent example (with thanks to Graham):

I'm pretty sure National doesn't oppose the entrenching of MMP - If my memory serves it's already entrenched...

The problem is that none of this is true. MMP is not entrenched, and never has been.

Section 268 of the Electoral Act 1993 famously entrenches certain sections of that Act (and the Constitution Act 1986) against change. The specified sections cannot be repealed or amended except through public referendum or a 75% majority of all MPs. While the entrenchment is also famously weak (the entrenchment clause itself not being entrenched), it effectively puts Parliament on notice that their "sovereignty" only extends so far, and that there are things they are not allowed to meddle with without overwhelming public support (and ideally, consultation).

Six sections are entrenched:

• s17 (1) of the Constitution Act 1986, which sets the term of Parliament as three years;
• s28, which establishes the Representation Commission which sets electorate boundaries;
• s35, which lays out the process by which the country is divided into electorates;
• s36, which states how much the population of those electorates is allowed to vary from the quote defined in s35 (the "fudge factor");
• s74, which states the qualifications of electors (who is allowed to vote); and
• s168, which covers the method of voting.

The latter may sound like enough, but looking at it, it's not. All it says is that once you have your ballot paper, you go to the booth and tick a party vote circle and an electorate vote circle - and in cases where the ballot paper only has a party vote or an electorate vote, you tick it (this being necessary to cover by-elections, though it is clearly more general). Entrenching a section saying "if there's a party vote circle on your ballot paper, you can tick it" is in no way entrenching MMP.

Looking further through the law, the sections specifying the form of the ballot paper - that it shall have circles for both the party and electoral vote - are not entrenched. The sections specifying how the votes shall be counted and that totals of both party and electorate votes shall be reported are not entrenched. The section covering the election of list MPs is not entrenched. Any of this can be changed, by simple majority, without any public consultation. A government could unilaterally return us to FPP, replace MMP with a Supplementary Member or STV system, or even move to a completely proportional system with no electorate MPs (there being entrenched electorates, but no requirement that they actually get MPs) - and there's very little we could do about it except vote them out (assuming they leave us that option - because there's no entrenchment for the clause saying that the people we vote for are those that are elected, or even that there be a poll at all).

This simply isn't good enough. The electoral system is simply too important to allow even the possibility of politicians playing with it wholesale for their own advantage - especially when there are still unreconstructed FPPists out there who want to return to the "good old days" where they could win a majority of seats while getting fewer votes than the main opposition party. Even those who support such a system I think would agree that such changes should not be made without widespread public support, ideally indicated by a referendum. While not everything can or should be entrenched, we should protect the core of the MMP system - the election of list members, the fact that there are party votes - and the sooner we do it, the better.