Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill

Members, we now come to the debate on clause 7, this is the debate on the repeal of sections 19ZA to 19ZG of the principal Act. The question is that clause 7 stand part.

This provision is the guts of the bill. This is where the Government is wanting to remove 19ZA, which is the public right to ask for a poll; 19ZB where the electors are able to collect the specified number as elected, of 5 percent; 19ZC, which is the requirements for that to be verified by the relevant chief executive of the territorial or regional council; 19ZD is where we are repealing the opportunity for the council to be able to resolve to have a poll; 19ZE which sets out the limitations on how a Māori ward can be divided; 19ZF, repealing the way in which the electoral official would conduct the poll; 19ZG, that actually talks about the detail and the way in which that poll would be conducted.

So let’s be in no question that what we are doing with these provisions is removing the democratic rights of New Zealanders. And if we cut to the chase, these provisions were introduced by Labour into the law—quite clearly identified in 2002, in fact, by the Minister responsible for this—and that what the Government is now doing is saying we support the right for people to vote, but if they vote a way in which they do not like, we’re going to take it off them. That is, in heart, what is occurring here. Labour introduced a right for people to vote on Māori wards, and Labour members—one after the other—have said, “Well, we’re going to take that right to vote away from you because we don’t like the decisions that you have made”. Now, that’s immoral. That’s anti-democratic. It almost sounds like Donald Trump’s reaction to the election result in the United States, where he doesn’t particularly appreciate—it is Trump-like, it’s Trump-like because I have heard Labour member after Labour member, including Rachel Boyack, say, “Well, I just disagree when Nelson voted 80 percent having separate Māori wards, and I think they are wrong. And so I’m going to take away the right of the people of Nelson, or anyone else, to have a vote”.

And, Mr Chairman, can I be clear about why it matters? Because electoral law doesn’t belong to people like that, us that are elected, it belongs to the electors, it belongs to the people and the bit that the arrogant members of the Government, and some in Local Government New Zealand say we can’t allow those plebs—the people—to make a decision. We want to override them. We can’t let them make these sorts of decisions.

I finally want to point out the real numbers: I have now heard 13 Labour members say that the reason for this bill is because Māori are underrepresented. See it over and over again, in the last Supplementary Order Paper. I’ll read exactly what the explanatory notes said: “These amendments are required because of low Māori representation in local government”. Let me give the House the numbers: Māori make up 14 percent of the population. And guess what? Local Government New Zealand has reported they make up 14 percent of the people that sit round council tables. It is factually untrue. The very basis for ripping away these democratic rights is based on a flawed provision.

So my question for the Minister, does she disagree with Local Government New Zealand’s official figures that 14 percent of our representatives elected at local government are from Māori? I do note—and actually, I’m not into magic numbers—that this Parliament has more Māori than their proportion of the population. And I say they are here on merit, not because they’re Māori or anything else. But I do go back and to say the very repeal of these provisions is based on a false premise by the Government stated in the explanatory note, and that is that Māori have low Māori representation. That is just one of many claims that are relevant. That is just one of many claims that the Government has made that are false with this bill, and I would like to go through further of those to expose why the repeal of these 13 provisions is wrong.

I’ve pointed out that the Government’s claim that Māori are underrepresented on our councils is not correct. The second claim the Government makes is: “We’re doing this bill to make the provisions the same for creating a general ward as a Māori ward”. We’ve been able to show that that’s not true, that, actually, if you want to create a general ward, you have to give public notice. There’s nothing in this bill that requires public notice. If a council wants to create a general ward, they have to call for public submissions. So if my local councillor in Nelson wants to create a new ward in Atawhai it puts a public notice in the paper, the public get the opportunity to comment—and, furthermore, they get an appeal, right? If somebody doesn’t like it and doesn’t want to have a ward in the suburb of Atawhai, they are able to appeal it to the Local Government Commission.

Now, in repealing these provisions, there’s no mention of public notice. There’s no mention of consultation. There is no mention of appeal rights. It is false and untrue. For the Government to premise the repeal of these provisions on the basis that it is simply making Māori wards the same for general wards: that’s not true. Then the third point, the Government justifies where we are in the urgency, where we gave people a day to make submissions. I had an unusual text from a friend, an old parliamentary friend, and he said to me, “I think this is the first time in history where the committee stage on a bill has been longer than the submission period”. Reflect on that, reflect on that: the period of the committee stage on the bill is longer—when the Government called for submissions on the Wednesday and closed them on the Thursday. But here was the extra dodgy bit: the Government told its mates that supported the bill six days prior, “Hey, make sure you get your submissions in because the Government’s going to run an extraordinarily short process”.

I reflected, in a discussion with the new MP for Southland who comes from a law practice, and I asked them the question: if the court ran a process that said that if you were on one side of the legal argument you’d be given one day for submissions, but six days on the other side, would that be viewed as “just” within the court process? My colleague said that would be unheard—

CHAIRPERSON (Adrian Rurawhe): I’m sure that’s interesting, Dr Smith, however that doesn’t actually form part of the bill.

The part that we are debating is the repeal of the 14 clauses that provide for polls. And what I am saying is that the premise for the repeal of those positions is false. Now, I come to the provision, quite specifically, in respect of the repeal of 19ZG that deals with electoral officers. And here’s my point: How many in this Parliament believe that electoral officers should be independent? I felt it was wrong and it was bullying when the President of the United States of America attempted to direct or tell electoral officials how they should interpret whether votes were valid or not. I think most of us here—I would hope that members on the Labour benches would say electoral officials must be absolutely independent and any Government or person who tries to screw the scrum is actually acting in an undemocratic way.

Well, let’s be clear—what this bill says is that where an electoral officer is required to do a lawful activity, give notice of a poll, they are to ignore that lawful direction. It overrides. This is Parliament saying to electoral officials, “Don’t do what the law is required to do, we are just going to veto and overrule it”, and that is wrong. That offends that basic principle that those conducting our elections should be independent. The clauses in this bill are fundamentally undemocratic. The fact that it is being pushed through under urgency just adds to the offence.

In brief response to the member Nick Smith’s questions and queries and statements, first I want to address the measure that the member raised. He disagreed with Local Government New Zealand’s statement—the question was: does the Minister disagree with Local Government New Zealand’s statement that 14 percent of elected representatives are Māori, and doesn’t this reflect the current Māori population? In 2018, the census results were that the Māori population was at 16.5 percent, therefore, no, that does not reflect the current Māori population. The 2020 estimates from Statistics New Zealand reflect that the population will be at 16.7 percent, so, no, that doesn’t reflect the Māori population. But also, these are national figures. If I can turn to a particular electorate, a particular local council, for example Tauranga. Tauranga has a Māori population of around about 18 percent, but there has not been a Māori councillor on that local council for in excess of 28 years.

Turning to the member’s articulation of what clause 7 does, he’s correct. It does remove the particular provisions at 7—where are we. It repeals the sections 19A to 19ZG. I might work backwards in terms of some of his commentary. The member invited the committee to engage in a values-based discussion about the ethics of the former United States President and whether it was wrong and bullying to direct officials to interpret polling in either which way. I want to walk through the provisions, because I am fearful my friend who has raised these comments may not be completely au fait with where this particular provision that he had concerns about lies within the scheme of the Act. He is concerned that electoral officers will lose their objectivity and be subject to discretion or be directed in a particular way. On the best attempt at reading sections 19ZA to 19ZG, I cannot see the tangential link as to how the member gets there. This whole provision sets out the guts, the mechanisms by which under the current law, which this entire bill seeks to amend—this sets out the entire process by which those Māori wards can be established and the poll mechanisms for them. The particular provision that the member was referring to talks about how the electoral officers will interpret those polling results. They won’t have that function because there won’t be a poll.

Just turning finally to the question—is this still relevant? [Seeks advice from officials] OK, I’ll walk through it. The decision under section 19Z is, effectively, a decision on whether the council will have any Māori wards. How those wards are implemented is a decision for the council through its representation review. If a council has sufficient Māori electoral population to have two or more positions, it must decide and publicly notify how those positions will be elected, e.g., at large or through multiple wards. This is the same as is applicable to general wards. I want to take the emotion and the tone that my friend brought to the House out of this debate and assess what it is that we are doing in its objectivity. This is removing a provision that only applies to Māori. We are removing that and thereby bringing about equity within the law.

If I turn to sections 19T and 19V, there is where I think—I was trying to follow the member’s journey as he took us through the various provisions. What I think he was referencing at some point in time, where I think he was inviting this committee to engage in a discussion, was about effective representation of communities and how that operates within the current scope of the law. There are two provisions that enable, for example, the establishment of, where a council deems it appropriate, a rural ward. A council can turn its mind to section 19T, where there’s a requirement for effective representation, and there’s a process that sets that out there. It may be that there needs to be effective representation of a rural constituency. If you go to section 19V, there is the process for determining what is required for fair representation within that community. It gives a mechanism by which to assess how a ward might be established.

But I want turn the member’s mind particularly to section 19V(3)(a)(i). That there creates, effectively, an out clause for non-compliance. Where there is ineffective representation at a local council level, it is on that council. If they still determine that it would bring about fair representation, a council can do so. We see that time and time again in regions like mine and, I’m sure, many of our regional, large, rural communities where we have the establishment of particular wards to give particular views for a constituency where it is deemed to be fair to ensure effective representation. So I trust that that assists with some of the issues and queries that the member has raised.

Mr Chairman, I’m going to keep this intervention very short. It’s a very crisp question, and I would hope that the Minister will provide an answer. She has given some detail about section 19Z—that is amended by this clause. My question is very simply this: can a territorial authority or regional council resolve to disestablish Māori wards or constituencies after they’ve been created?

The reason I ask that question is that when the local government electoral Act sets out the provisions for the choice about the STV or not, or the decision to have general wards or not, it very clearly states in the statute an “either/or”—it can do this or it can do this—but the language in 19Z, that we are amending, says a territorial authority may resolve to create one or more Māori wards. So my question is: if a council has resolved, where is the provision, quite explicitly in the law—there is quite explicit provision in the law for them to repeal a general ward; there is quite explicit provision in the law to be able to reverse a decision from first past the post or STV, for which there are poll provisions. There is not explicit provision in the law for a territorial authority in 19Z(1) or, in respect of a regional council, where it’s dealing with—the term “constituencies” is used for regional councils; “wards” is used for territorial authorities. In those parallel provisions, it says they may resolve for it, but there is no provision for them to resolve, at some time in the future, to remove them.

I think there’s a fault in the law. It gets exacerbated by the amendments that the Minister is proposing we make in this clause, to sections 19ZA to 19ZG. So I would love a response from the Minister. Is there explicit provision that a territorial authority or regional council can resolve to disestablish Māori wards and Māori constituencies; and if so, where?

I thank the member for his question. And, while not expressly directly related to clause 7 of the bill that we’re currently debating, I will draw the member’s attention to section 19Z(3)(c)(i) and (ii). So the simple answer is yes. After two triennial elections, a council can make the resolution. The process is set out in those provisions.

Mr Chairman, and I’ll be very short. That was exactly why I asked the question. Because the member will note that the clause that we are debating says that we are going to repeal sections 19ZA to 19ZG. So if we’re going to repeal all those provisions from 19ZA to 19ZG, that says to me that 19ZC is “gone-burger”; it’s not there. So my question is—no, I’m sorry, that does not satisfy my question. That cannot be correct.

I’ll assist the member again: section 19Z. That precedes ZA.

I want to run through this, I think. I won’t run through every particular section or subsection from 19ZA to 19ZG that’s been repealed; suffice it to say, there’s 14. I have to agree with one thing the Minister in the chair has said, and that is that they set up a process to do away with the referendum that was in place and set up through the law under the Clark administration. And they are, as that Minister in the chair said, the guts of this bill.

I do, though, want to make some general comments that apply with specificity to all of those 14 provisions and how they operate as a whole in doing away with the set-up from the old law of the referendum or the poll. The first one is this: those provisions operate together retrospectively, and that is an incredibly important principle—or, rather, lack of it—in these parts, the guts of the bill, in terms of what by their effect and their nature they are doing.

You know, there’s two things to say here about the retrospectivity of 19ZA to 19ZG. Firstly, in theory, that offends the rule of law. It offends against the principles this House should work under. Ministers and Governments should bring legislation to this House, and the reason for that, to cut to the chase, is very simple: people plan their lives and the way they do things—in this case, the way they go about their democratic rights—on the basis of what the law is, and therefore will continue to be for some time until it is changed prospectively. These provisions, by their very nature, in setting up the process for getting rid of the referenda or poll retrospectively, offend against that.

Then, of course, there’s the points around that particular practice as it is practically worked out, and the reason why it’s such a problem. I said just before that the reason it is a problem is because of what it means as people can’t go out planning their life and their ordering of their democratic rights. What it means quite practically here, is, I think, Dr Smith, the answer is seven areas that have gone forward—collected signatures, and the like—and gone out; they’ve set up their stall in good faith, because that was a law, and still is, actually—we’re in the process of passing this bill. You know, they did it rain, sunshine, or hail—they did all of that, and then the rug has been pulled out from underneath them. Actually, that affects about 1 million ratepayers—these very provisions and their retrospective application—

💬 Barbara Kuriger: How many?

About a million—about a million ratepayers across those seven council rohe, if you like.

So that’s a real point that I want to raise about these 14 provisions. The second point that I wanted to make, though, is that they are, by their nature, again in general, across the 14 provisions that get rid of the referenda, a gerrymandering—I would argue an illegitimate, quite secretive, really, gerrymandering of local government laws. And why do I say that? Well, I say that because we have a position where every other referendum that can be held in local government on any subject area that you like to—not the Chair, but that anyone would like to mention, whether it’s dog control, whether it’s recycling, whether it’s climate change policy, or a ward—you name it, they can be subject to a binding referendum, but here, in these clauses, we are doing away with the mechanics of that, and the point could be made we can have a non-binding referendum. The problem with that is—the second point around this gerrymandering as I would call it is the point that Dr Smith was teasing out with the Minister, and I think in the end we got an answer—well, you can have a process for doing away with a Māori ward, but, by the way, it’s going to be in a minimum of six years from the next election.

And talk about—well, I come back to it—gerrymandering. I mean, that is very cynical, it seems to me.

Mr Chair, thank you. And I thank the member the Hon Simon Bridges for his contributions. Just briefly, I want to turn to a couple of issues. I note that the member was raising, just now, provisions for a debate that related to the previous clause, clause 6, but I’m happy to assist with his understanding there.

The view—let me just—what was that last point he just made?—sorry my papers are all over the show; that’s all right. Look, with respect to the retrospectivity and the prospectivity that the member was engaging with, the substantive discussion about this has already been had during the committee of the whole House. It was particularly with regard to clause 3 of Schedule 1. So I think that there is a fundamental disagreement with the member’s analysis there, the councils do have their transitionary clauses which enable those—I think the member referenced seven areas that have gone forward right now that are subject to current provisions. There is no retrospectivity or prospectivity; there are transitionary provisions to enable that process to go smoothly. Those councils have until 21 May. But, look, that debate has already been had. So I don’t think I can assist the member any further on that point.

A very simple question for the Minister: does she agree or not that the legislation that is proposed, and being debated in the House right now, removes the ability for people who have signed a referendum to have their voice considered?

I’m just trying to bring that back to clause 7. So with respect to clause 7—

💬 Hon Dr Nick Smith: Well the question is: is section 7—is clause 7 retrospective?

Is clause 7 retrospective? Clause 7 is removing a process that is not fit for purpose. Clause 7 is assisted with transitionary provisions that have been the subject of debate in this House at Schedule 1.

I move, That the question be now put.

Thank you, Mr Chair. This clause is the nub of the issue really. It removes the ability for the public to, for example, demand a poll. The Minister, the Hon Nanaia Mahuta, has said that this is essential to ensuring equity and representation and to provide a Māori voice in local decision-making. What I would like to ask the Minister is why section 4 of the Local Government Act 2002 is not fit for purpose in ensuring that Māori have a voice in local decision-making. Section 4 specifically refers to the Treaty of Waitangi, and it says that “In order to recognise and respect the Crown’s responsibility to take appropriate account of the principles of the Treaty of Waitangi and to maintain and improve opportunities for Māori to contribute to local government decision-making processes, Parts 2 and 6 provide principles and requirements for local authorities that are intended to facilitate participation by Māori in local authority decision-making processes.”

Section 82(2) of the Local Government Act 2002 says “A local authority must ensure that it has in place processes for consulting with Māori in accordance with subsection (1).” I note the word “must.”

💬 Hon Kiritapu Allan: 82?

82(2). I note “A local authority must ensure that it has in place processes for consulting with Māori in accordance with subsection (1).”

I know from speaking with a number of councillors and councils in my region that both district councils—and I have five in my electorate—and the regional councils—I have two—take that very seriously. I know they consult with local Māori on decisions that affect Māori in their rohe, so to speak, in the Southland region. I note, further to this, that the Christchurch City Council will not establish a Māori ward for the next elections. The idea was floated with iwi in October, but the local authority was comfortable with the current relationship. So my question for the Minister is why these provisions, which are already in place in the Local Government Act, are not fit for purpose in ensuring Māori representation and having a voice in local decision-making.

I know that I’ve spoken to contrary voices in my community who feel that Māori have an incredibly powerful voice in local decision-making in the local region. I accept that there’s a balance that needs to be struck between those voices, but I would suggest that there’s already a very good provision in place in the Local Government Act to ensure Māori have a voice in decisions that affect them and their region. I will invite the Minister to explain why that’s not adequate.

I thank the member for the question, whilst noting that it’s likely out of scope of clause 7 within this particular amendment bill. The Act that the member refers to, of course, isn’t the one before us; it’s the Local Government Act, which does address those issues around equity. There are multiple means by which Māori are engaged across local government functions, if you will. But the bill before us right now is focused on Māori representation at a council level. So the Local Government Act goes towards the operations, the duties, the functions, the Treaty settlements that might deal with co-management arrangements, governance over particular decisions, and frameworks—and those will differ across the country depending on the nature of the environment. But what we’re discussing here is representation at those local council levels, which is a point that’s a little different to the one, I think, that we’re discussing today. I thank the member for his question.

I move, That the question be now put.

Look, I just want to say thank you to the Minister for answering the questions as we’ve been having them, bringing them forward, I think, in good intent and good spirit. It’s also great to see Louisa Wall back in the House again, because she’s been the only member on the other side actually taking a call and engaging with us as we’ve been wrestling with these questions.

But I guess, you know, as we reflect on what is really the guts of this bill, as we look to repeal these 14 provisions under clause 7, I guess what is sad is that we’ve never really, kind of, had the first-principles conversation as to why Māori wards are here in the first place, and we’ve never really had a chance to discuss and debate how local government should actually build their relationship with iwi, hapū, and why we think local wards are the best way to do that.

The Minister, just in her remarks before, talked about representation, but really the focus is, under legislation, under the Treaty, realising that local government and iwi, hapū, have obligations with and to each other. I guess the question that I’d really appreciate the Minister’s perspective on, given her own lived experience and her own experience of where she’s come from, is—fundamentally the outcome here is a deepening of relationship and partnership between iwi, hapū, and local government. That’s got to be the goal. That’s got to be what the result has to be. That’s what the end game is about. That’s actually the outcome we’re interested in here: each and every year, that we see an improving and deepening relationship between the Crown at a central government level, local government, with iwi, hapū, in their area.

The question I have for the Minister is, sort of—we’re presuming that the answer is, in fact, a Māori ward; that the Māori ward is the best mechanism by which we can deliver that outcome, which is our obligations under the Treaty, and I guess we’re sort of dictating the means rather than the outcome as a consequence. I can understand it, because if you go back to 2002, when the legislation was created and when this 5 percent trigger was actually put in, it was really probably designed so that Māori in an area could actually trigger a petition to be able to put a proposition together to get the Māori ward. There’s been a whole bunch of other conversation. But here, fast-forward 20 years on, and I think we’re actually in quite a different and better place. Many of the submitters that we spoke to in the Māori Affairs Committee, for the short time that we had them there, they all raised this issue around proportional representation—that, essentially, Māori were now present in local government in proportion to the total population. I think that’s really fantastic, because that means that fundamentally that has changed a lot from when this legislation was first written in 2002. Māori were typically 4 percent of the total population of the 1,600 elected local government members that we have, and today that’s very different. It’s proportionally aligned.

So the question I have is that we never really got to hear the viewpoints in any of the submissions from iwi and hapū around how Māori wards are actually fundamentally addressing this issue of building and deepening the relationship that each side has under the Treaty. I think what we’re saying is Māori wards may be about addressing matters of representation; albeit if it’s just about representation, then that’s already being achieved, as we’re seeing in this House and we’re seeing in local government, where people are getting there because of the content of their character, not because of the colour of their skin. They’re getting there fundamentally because they are equal, and that’s a fantastic thing. That’s a positive thing that’s happening. So representation is actually being achieved.

But now we’re saying—and then when you go talk to some iwi and hapū, and we’ve had some examples here on the West Coast, we’ve had some examples in Christchurch, the relationship with Ngāi Tahu in particular, they are saying that we can deliver the strategic goals of a deepening and better partnering with Māori through our Treaty obligations by having strategic relationships as iwi, hapū, with councils, rather than actually setting up Māori wards that deliver it.

When you look at article 2 of the Treaty, it actually says—it’s really about making sure that Māori have decisions over resources and taonga, and article 3 is really about how obligations owed to New Zealand citizens are owed equally to Māori. None of those articles talk about Māori wards as the means by which you achieve that, and we just presume that that mechanic—which might have been relevant in 2002; I don’t think is relevant in 2021. I think that’s the question that we fundamentally need to ask. None of these articles actually put Māori wards and state that Māori wards is the means by which you deliver those obligations.

I’m just interested in the Minister’s view around—surely a strategic relationship with iwi and hapū that deepens each and every year, that really delivers on articles 2 and 3 of the Treaty obligations that we have with each other, is a much better thing than trying to force forward a tactical mechanic of a Māori ward to deliver that end or that outcome. That’s the bit that fundamentally, I don’t know. As we think about seriously repealing 14 provisions under clause 7, the question I have is—that’s the big strategic question here, right? This is what we want to see in this country. We talked about reconciling binary views. That’s the important thing.

I move, That the question be now put.