Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill

Thank you for the opportunity to talk about this amendment in Supplementary Order Paper (SOP) 8, because I really think it’s important. You know, we said in the very beginning, in the explanatory note of this bill, that one of the policy intentions of the bill is to align the treatment of Māori wards and Māori constituencies with the treatment of general wards and general constituencies. That is one of the stated three objectives of what we’re trying to do, and yet it doesn’t actually do that, as we’ve been discussing over the course of the last day. It’s really just about removing the right to past and future referendums, as we’ve been talking about.

I think this amendment is, fundamentally, what you see a lot from the National Party: a very practical, very sensible, good-faith SOP to make this bill better. I’m only a new parliamentarian, but I was told that we may disagree with a bill but we should work together to try and make a bad bill better, and that’s what we’ve got to do. We hoped to do that in the select committee stage, but we didn’t get the opportunity to do that because none of our amendments were considered, namely to take more time to actually have a proper debate and discussion about it. So we’re in the spirit here of just trying to make a bad bill better.

All it’s doing here is, fundamentally, providing an opportunity for any person or any organisation to appeal a resolution to establish Māori wards. What is the normal process in a general ward, as is proposed here, is that in order to get that alignment with general wards, someone who wants to appeal puts their appeal through to the Local Government Commission in the same way as general awards are done. I don’t think that’s an unreasonable request, that, fundamentally, if the principle is that we want alignment between both general and Māori wards, we should have very much alignment in the processes.

The SOP does several things under new section 19ZGB. The first thing is it really is about making sure that “Any person or organisation may lodge a written appeal against the decision of the territorial authority or … council” at that place of the council. The second thing it does is it then says it’ll take that appeal and then it’ll be forwarded on to the commission, who will then resolve whether to—forward that appeal about resolving to create a Māori ward on to them. Then the commission is then left, having received the appeal and the written appeal, having had it forwarded on to them, to consider the resolutions, any submissions received, any information that might be forwarded, and then they can actually make a determination as to whether that Māori ward can and should be established, based off the grounds that have been put forward—same process for a general ward, exactly the same process as what we’re proposing here.

Then the fourth thing it does is it goes on and it says there must be notice in writing of every determination made by the Local Government Commission, setting out the reasons for the determination, and then that must be publicly published as a public notice and then a copy of that public notice sent through to the Surveyor-General, the Government Statistician, the Remuneration Authority, and the Secretary for Local Government. Then the determination of the commission, under subsection (3)(b) is in fact then final.

So, really, what this SOP’s fundamentally about is just providing that opportunity for any person or any organisation to appeal the resolution to establish Māori wards or Māori constituencies; take it to the Local Government Commission, as is the current standard with general wards; do it in exactly the similar way; make sure that things are properly publicised, notified, submissions are heard, consultation’s taken place; and then a determination is made. I think, as we’ve talked about before, that is fundamentally something that I think we can do to get that alignment that we talked about at the very beginning of this bill. But, importantly, it’s also something that we can do because it’s actually a practical, common-sense, fair thing to do. It innately builds that same logic that these wards are treated in exactly the same way.

I just want to encourage all the members on the other side to think deeply about that, because that is a common-sense, helpful SOP that we are putting forward in good faith in order to make this legislation much better, much stronger. I really would ask them that they consider it. I’m reminded of their leader, who said, “Let’s do this.”, and I’d just like us to do this one. This would be good—just do this one. We’ve done nothing else. This bill has gone through a sham process. We’ve done nothing else; we’ve changed nothing about it. But if you’re serious about aligning it with general wards, why don’t we do that? So let’s do this one—would be incredibly helpful. Thank you.

Supplementary Order Paper 8 (SOP) from my colleague Chris Luxon is what I call the good-faith test on the Parliament. It’s a good-faith test because if this Parliament’s really serious about doing its job as effective legislators, there isn’t a member of this committee that would not vote for this Supplementary Order Paper, and let me tell you very explicitly what it does. In the previous clause, we removed all the poll provisions. We said, “Councils, you’re not going to be able to let the public have a vote.” What this clause says is, “Well, at the very least the council should have to publicly notify it. At the very least the council should have to listen to submissions.” So if you are in Ngāi Tahu and you have a view that actually Māori wards are not the best way to meet your Treaty obligations, it should apply appeal rights.

My colleague Christopher Luxon has taken the Minister at her word when she said she wanted the provisions to be the same as for general wards. So if a council wants to create a general ward, it’s required to publicly notify it. If a council wants to create a general ward, it’s required to take public submissions. If a council wants to take a general ward, then it provides an appeal to the Local Government Commission. So can any member of this committee give me good reason why you would not support the bill, or am I to conclude that this whole process is just a sham?

We wish to put this amendment forward at the select committee. Now, of course, we had a select committee process. Normally we allow for submissions for 20 days—the Government gave one day. Normally the select committee has six months—we got six days. And the chair of the select committee said, “No, no, no, you guys from the Opposition—don’t bother with any of your amendments. We don’t have time.” Well, we do have time today. We’ve got time to make a very practical, thoughtful, consistent amendment, and I just urge the Parliament to do the right, thing.

I had advice from one of our very bright Opposition staffers. They said that “If you don’t include this provision, frankly, it’s a breach of the Treaty.” Let me explain that, and I’ll give the Waitangi Tribunal rulings. The Waitangi Tribunal has ruled that if councils are making decisions that impact on Māori, they must be consulted. So if a council is going to make a decision to create two Māori wards and set the boundaries, there are actually very real issues about how they will be set. And so the provision requiring consultation and notification actually enhances this bill’s obligations under the Treaty. Without this amendment, a council can establish Māori wards and the boundaries between them quite lawfully without talking to anybody, without taking any public submissions, and without being required to publicly notify its intention.

I say that without this SOP, this is bad law. For every other significant decision that a local authority is required to take, it is required to go through such a process. Without this Supplementary Order Paper, this bill is not doing what the Minister said—aligning the provisions of Māori wards with general wards. And without this SOP, this bill is actually inconsistent with the Treaty obligation for councils to consult with iwi in their area over issues that affect Māori. Nobody could seriously stand up in this Chamber and say that determining the boundaries of Māori wards where you’ve got issues over different rohe boundaries and doing that without even talking with Māori and iwi is appropriate.

This is a very sound amendment. I hope it’s one that the Minister will choose to support, because it meets all of the tests of those parliamentarians that came to this Parliament to make better law. If this amendment is not adopted, we can only conclude that this process is a cynical sham.

Madam Chair, this is a curious Supplementary Order Paper (SOP), in that in fact what’s been proposed here is sort of an additional layer of complexity. I’m advised that if you were to apply the intent of this particular SOP, the timing of the proposed changes do not fit with the current provisions in the Local Electoral Act, which sets out the representation review process. But in addition to that, when you go through to—let me quote—the proposed new section 19ZGA(2)(a)(ii), what is being proposed there is that the council would be required to publish the Māori ward boundary details at the beginning of the process rather than at the end. And in fact, it’s really going to be really difficult to provide the information to be able to do that until all of the representation arrangements have been determined. So that’s across both the general and the Māori wards.

So I would invite the member to reconsider, in terms of its practical application, how the intent of this provision is meant to work alongside the current representation review process. Because you will recall, I made it really clear throughout all stages of the debate, that we would not be changing the representation review process. In fact, we can lean into that to be able to achieve the outcome that we want to.

But I have been listening very carefully to the debate, and I actually have a question to the member. At implementation, had he considered the intent of the proposed new clause and what that would mean in terms of the current representation review process? And if he has considered that, how does he intend this particular clause to work in relation to the process? In addition, can I say that in terms of the appeal option, the current legislation through the Local Government Commission does provide for appeals to take place, and nothing about the appeal provisions will change in relation to the bill that I’m introducing into the House today.

Thank you, Madam Chair; I appreciate it. There’s many things I want to say, but I do want to just respond, and I would be very happy to get the feedback on my response to what the Minister’s just been saying. She says it’s curious, this amendment—she says that it will add complexity. And that’s the basic argument, right? It’s much more complicated—it’s going to be a bit complicated, so we sort of don’t want to do it. Well, to explain away procedural fairness—frankly, justice—because of a little bit of, in her words, complication, I think is insulting. I think that’s exactly what it is. I mean, when you read into what she’s saying—what she’s sort of really saying as well—it’s “If we do this, there’ll be a few other inconvenient flow-on effects in terms of dates we’ll need to change, so we can’t be bothered.”

That’s actually the subtext of what she’s saying when she says it’s curious and it’s going to add complexity. I’d say to the Minister: does the guy on death row care about justice and fairness, or a bit of complexity? We all take the justice any day of the week, actually, because it really matters. And it matters not just in those serious criminal matters; it also matters in this instance as well, where we’re talking about local democracy and what price democracy—what we want for democracy, and we want substantive serious justice.

I want to say just another three or four things. Firstly, I just want to commend Christopher Luxon for this, I think, reasonable, fair, very good amendment that he’s put forward. We know what it does; it adds an appeal process to the Local Government Commission. I want to say that, look, this is not, in any regard, as good as democratic fairness, OK? The Government is doing away with the referenda, and that is actually the first best response, and in that regard, this is a poor person’s answer when I’d much rather have a better response, which is democratic fairness through a referendum. But if they’re not going to do that, actually, and not give that democratic fairness, procedural fairness, which is what Chris Luxon’s amendment does—as he says, he was taught, coming in here, you know, we at least should be trying to improve the bill, even if we don’t agree with it substantively. Well, that’s what this amendment does: it provides a natural justice, a check and balance; you can put it in all sorts of ways, but that’s what this does. It’s second best, but it’s worth doing.

The other thing I’d of say, secondly, is consistency. We’ve had this debate now a number of times in the House. I haven’t heard the Minister speak on it. She was very eloquent about it in the first and second reading speeches, from memory, but she hasn’t gone on too much about consistency here. But this bill, which is meant to be all about consistency, without this provision is entirely inconsistent. It treats Māori wards differently to the regular wards for constituencies. And in that regard, I think Nick Smith makes a very good point that it’s a breach of the Treaty of Waitangi, because it is a lower level of procedural fairness in one than the other; it’s not treating Paul the same as Peter, or Paora the same as Stanley, or anyone else, for that matter. That is not right. Bills should be—call me old-fashioned—consistent, especially when the stated purpose is to make them consistent, and there should be an alignment between this law and the general wards dealt with in other local government legislation.

The final point I want to make is, really—it’s rhetoric, but I’d invite the Minister to get up and address it, if she would. Is this bill, and the process we’re going through right now, a sham or is there just some small little miniature degree of good faith to it? If there is any good faith, as Nick Smith has said, then this provision should be supported by the Government. Is it a sham, or is it real? If it’s real, you know what? Do the right thing. If you can’t bring yourself to provide substantive democratic fairness to a referendum, at least provide some procedural fairness with an appeals process for all concerned.

Thank you very much, Madam Chair. I want to talk a little bit around Supplementary Order Paper (SOP) 8 that has been raised by my colleague Christopher Luxon. I think, as colleagues have said before, that this is a very sound amendment, and I want to go through a number of aspects around it just to provide some clarity. In particular, I’m keen to hear the Minister’s response on a number of these aspects.

As we’ve talked about before, we’ve currently got a degree of inconsistency. What we’re trying to do by this amendment is in terms of alignment between the Māori and general wards aspects by introducing an appeals process, and I think it is only fair that you would have an appeals process. I mean, look, I’m obviously the member of Parliament for North Shore, and I have received a large number of constituent emails around this issue, not only from the North Shore but also from places such as—you may not have ever heard of it—Roto-o-Rangi, which is in the Waikato, and Te Karaka. Maybe the previous Minister might be aware of that.

💬 Hon Louise Upston: The wonderful electorate of Taupō.

Yeah, absolutely. There is significant concern from a number of people around this country on this, and I liken it to the many, many people—I think we said 25,000 people—that have been part of those seven areas that have already, I guess, in good faith, been part of a process to be able to put their opinions down, and, in effect, that has been taken away from them.

So the right of an appeal process is really important, because it’s really important that we have a process, and it makes this—in effect, a bad piece of legislation—a little bit better. I think that in terms of having that appeal process in place, it will be fundamental. It will give those people that are so impacted, that have been part of this process already and , I guess, feel like the rug has been pulled out from underneath them, a least a little bit of gratitude back from that.

So the provisions that I think my good colleague Christopher Luxon has noted in his SOP around notification make this process stronger. I think the element that this notification of appeal needs to be made publicly is also a really important aspect, because I think that without that level of transparency—and I think that’s what we’re really trying to focus on here: a level of transparency around our democracy. You know, I read this legislation and I genuinely cannot believe that we’re actually going along with what is being proposed here. I think it’s absurd.

In terms of the amendment—and I’ll go back to that—I really hope Minister Mahuta, who I’m glad to see back in the chair, really considers this amendment. I think that it is a suggestion, and it is genuinely in good faith that we make this, to try and make this legislation better, so I do ask, and I hope that the Minister considers it.

I want to go to the point raised by the Hon Simon Bridges, and I think it’s a good point. That was that he talked around procedural fairness. I think that aspect is important to re-emphasise: that it is very, very important that we have legislation in this House that is fair. You know, I don’t think that’s unjust. I don’t think that’s unreasonable. Actually, I think that is a minimum expectation of this country, a country which is exceptional, and I hope that the Minister will consider that strongly.

I also wanted to note a couple of aspects around the reasons why not. They did sound to me like “This is just a little bit too hard.” And I think of those 25,000 people. I think my colleague mentioned a million ratepayers. Well, that is a huge number of Kiwis, and the reasons given on why we shouldn’t consider this supplementary addition was additional complexities and impact on time line. Now, with respect, that seems to be very much “This is too hard.”, and I don’t think that that provides a valid reason why we should not do the right thing.

I think the right thing here is to take on board the feedback of my good colleague Christopher Luxon in terms of his position around the appeal process, consider it in good faith, and look to include that as part of the revised bill that we’ve got here. I really look forward to the Minister’s comments, and thank you very much for that.

I am mindful that there’s a certain amount of repetition that’s taken place in the contributions that have been made. At risk, yet again, of repeating an answer that they may not like, but it is a fact: the Māori Affairs Committee received advice right at the beginning of this process, to outline the representation review process. Within that clarification—and they were given a very detailed chart to be able to explain the time line and the sequencing of the process that must be undertaken by a council that determines to establish Māori wards and constituencies and go through the process—there is an appeal process that is provided for through the Local Government Commission. And, in fact, if members care to go back to that early bit of information, that appeal process, in the event that this bill passes, will be over a duration of, at least, by my calculations, three or so months.

I’m happy to provide and re-table information that was given to the select committee, but I would have thought that those members who were acutely aware of the way in which these provisions are intended to apply in practice—that that had been mapped out very carefully. Hence my question back to the member who put forward Supplementary Order Paper 8, Christopher Luxon: at implementation, had he considered the way in which the new provision would operate in relation to the existing representation review process? Had he considered the way in which an appeals process is already provided for by the Local Government Commission?

So I’m not going to take up too much time, because the questions are repetitive. Again, I’m at risk of repeating the same answer.

Thank you, Madam Chair, and thank you for the opportunity to take a call on this clause which is being proposed by my colleague Christopher Luxon. I do find it fascinating that we’re sitting here being asked questions from the Minister in the chair, because the committee of the whole House chance is our opportunity to ask questions of the Minister and to seek answers. But, instead of getting any answers, what we’re getting is questions back, and it does pose the question whether the Minister actually considered appeal rights for this scenario for Māori wards. Did the Minister consider that?

The Minister has got plenty of feedback and questions about whether this Supplementary Order Paper (SOP) considered the issue of appeal rights, but did the Minister actually consider appeal rights in the situation of Māori wards or not? Because what we end up with is a piece of legislation which is not consistent, which does not flow, and which does not have the parity which we were apparently promised—that this legislation was going to put Māori wards and general wards in local government on the same playing field. So now we’ve got a situation where there are appeal rights very clearly in the legislation for general wards, but this SOP is trying to fix now the anomaly where the council, essentially, has the ability to go ahead and do whatever it likes.

So I’d like to ask the Minister and have her answer the question of whether she considered a need for this type of SOP or whether the only issue she’s actually got with this SOP is the fact that it doesn’t quite fit the timing that she’s trying to ram this piece of legislation through Parliament with. And if that’s the answer to the question, then the point is that the timing should be changed in order for this to be properly considered. If she didn’t consider it, well, I’d hope the Minister would be able to take a call and actually acknowledge to the committee, “Actually, no, I didn’t consider that issue. I didn’t consider it, and now we’ve got an SOP on the Table, can we work to actually find a solution through this?” And we’ve got time. We’ve got plenty of time here during this debate to find a solution.

If it’s only section 19ZGA(2)(a)(ii), which is what the Minister is saying is the only part, apparently, that she has pointed to as being of issue, well, what’s the wording which needs to be changed? What’s the couple of words? I mean, there’s only—one, two, three, four, five, six—seven words in that part. Only seven words.

💬 Hon Simon Bridges: Can’t be that hard.

Can’t be that hard. So tell us: what would you like us to change that to? Because I’m pretty sure—I’m happy to work with Christopher Luxon, and I could rephrase those seven words in the next seven minutes and we could table a new amendment which would fit the intent of this legislation, which is to ensure that there is parity and that the same processes are in place for general wards and for Māori wards.

So I’d ask the Minister to please take a call. Only a few simple questions: did she consider the issue of appeal rights in this situation? Did she or didn’t she? I think the committee would like to know whether that was actually considered. Did she receive any advice on that matter from officials? Was that something that Ministers gave guidance or advice to the Minister on? Did she seek guidance or advice from officials on that particular issue? Because this is a very important issue. If we’re going to have an intent of making sure that this legislation for Māori wards is the same as general wards, then I’d hope that the Minister actually asked those simple questions of officials and received some advice. If she didn’t, well, does she agree with the intent of this Supplementary Order Paper? You know, she’s picked a hole that she thinks is in here due to timing, but does she agree with the intent? And I’d like the Minister to take a call and say. Do you agree with the intent that these appeal rights should be in place for Māori wards as well as for general wards?

Then, if she does agree with that intent, what are the specific words that she would like changed? I’m happy to work with Christopher Luxon, happy to work with him to find a suitable wording which she can then accept, and then the committee of the whole House will be able to work together—that’s what it’s about, working together—to improve the legislation so that the law which comes through here and is put into legislation is actually the best for New Zealanders. I think that’s what the public want us to be doing; they want us to be working together to find the right solution. So a few questions there. I look forward to the response from the Minister.

Once again, there is a level of repetitiveness, albeit asked in a different way, in terms of the angle of the question, but can I repeat that right from the beginning I had indicated that we would not be changing the representation review process or the appeal process, which people have access to through the Local Government Commission. So, in short, yes, the potential for an appeal process through the Local Government Commission was always a consideration. That’s why we’re not changing that aspect of how Māori wards and constituencies would be created. And, again, I make the point—the question might be asked in the same way but it’s going in the same direction—they may not like the answer, but the answer’s been very clear. It was explained to the Māori Affairs Committee in terms of how the representation review process works and where the appeal component of that process starts to kick in, which is at the end of the representation review process.

I move, That the question be now put.

The question is that Christopher Luxon’s amendment inserting new clause 7A set out on Supplementary Order Paper 8 be agreed to.

Amendments that seek to direct councils on how to establish Māori wards or constituencies are out of the scope of this bill, which is very narrow and focused. Therefore, the following amendments are out of order: Christopher Luxon’s amendment, set out on Supplementary Order Paper 9, requiring public notice of, and submission on, proposals to establish Māori wards or constituencies; the tabled amendment in the name of Christopher Luxon which would designate the establishment of a Māori ward or constituency a matter of significance under section 83 of the Local Government Act 2002; the tabled amendment in the name of the Hon Dr Nick Smith inserting new clause 7A requiring Māori to be under-represented before a Māori ward or constituency can be created; the tabled amendment in the name of Christopher Luxon inserting new clause 7A requiring authorities to consider Treaty settlements when determining boundaries between Māori wards or constituencies; the tabled amendment in the name of Christopher Luxon inserting new clause 7A requiring a supermajority to establish a Māori ward or constituency; the tabled amendment in the name of the Hon Dr Nick Smith inserting new clause 7A requiring councils to consult with local iwi before establishing a Māori ward or constituency; the tabled amendment in the name of the Hon Dr Nick Smith inserting new clause 7A requiring councils to hire polling companies before establishing Māori wards or constituencies.

These further amendments are also out of order: the tabled amendment in the name of the Hon Dr Nick Smith inserting new clause 7A requiring the Local Government Commission to provide certain information to Māori electors is out of order as being out of scope of the bill. The tabled amendment in the name of the Hon Dr Nick Smith inserting new clause 7A requiring the Electoral Commission to provide certain information to Māori electors is out of order as being out of scope of the bill. The tabled amendment in the name of the Hon Dr Nick Smith inserting new clause 7A delaying the application of resolutions made under this Act until the second local election is out of order is inconsistent with a previous decision of the committee made after the debate on clause 4 and the Schedule. The tabled amendment in the name of the Hon Dr Nick Smith inserting new clause 7A relating to the establishment of Māori wards or constituencies by Auckland Council is out of order as outside the scope of this bill.

Members, we now come to the debate on the tabled amendment inserting new clause 7A, in the name of the Hon Dr Nick Smith, establishing a process to disestablish Māori wards or constituencies. The question is that the amendment be agreed to.

New clause 7A 19ZGA Process for Disestablishing Māori Wards or Māori constituencies