Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill

In seeking the support of the committee for this amendment, I want to draw the attention of the committee to the existing law. The existing law allows a council to resolve a number of questions when it does a representation review. It says that a council can choose to have wards or not, quite explicitly. It actually gives them the option to create a mixed-member representation system similar to our Parliament, where you have some members elected for specific areas and some members at a general level, but the significant part of the wording of the clause is that it may or it may not.

Section 19Z of the principal Act, though, only allows the council to explicitly go in one direction, and that is to create a Māori ward. I’ll read the section very explicitly to the House: “Any territorial authority may resolve that the district be divided into 1 or more Māori wards”, and then further on it goes on and says that any regional council may resolve to create a separate Māori constituency or a parallel provision. So the key point is that when it comes to creating a general ward, a council can resolve to or not. On creating STV or first past the post, it’s an either/or, but the explicit term of the law is that there is only the option for the council to resolve that it be divided.

Now, I’ve spoken to a number of lawyers about this and said, “Well, this is a bit odd—a bit odd for the law to say that councils can create them but can’t dissolve them.” It is true, and I’ve read the advice of the officials, who point out in later clauses, “Well, it implies that you might be able to resolve to reverse and to resolve not to have Māori wards.” Well, we on this side of the House would like the law to say as it means, and if the intention of the law is to say that any council can resolve to establish Māori wards and that, equally, councils can resolve to disestablish Māori wards, then let’s provide that power quite explicitly, and that is as clear and simple as this bill does.

Now, this provision in my name is absolutely consistent with what the Minister has said when she has described the intent of the bill. She says, “This is all about letting communities make the decision.” But it’s a pretty odd power if it says, “Well”—I might even call it the “Henry Ford” clause, and that is you’ve got the choice of a car and you can have the colour black, black, or black. What, effectively, the provision in the law at the moment says is that “Well, you can resolve to do this but you can’t resolve not to do it.” And so my plea with the committee is: let’s do as we say. Let’s ensure that the law is quite explicit.

I can tell you one of the reasons, for the Minister, that it’s important: there might be councils—and I’ve made decisions sometimes as a Minister, and I know this House has sometimes made decisions, and that is, “I’m not sure about this, but I’ll give it a try. Let’s see how it works, and let’s have the option to undo it if it does not work.” Some people may remember, for instance, that when this Parliament made the hugely significant decision to allow a referendum on establishing MMP, we quite specifically—the Key National Government—provided the option for people further down the track to say, “Well, do you want to stick with your decision?” So what I am arguing in the adoption of this new clause 7A is that communities should have the choice. They should have the choice to establish Māori wards and they should have the explicit choice to disestablish Māori wards.

Now, if the Government’s intention opposite was actually—their true position is actually the Māori Party position, and the Māori Party, to give them credit, are nice and upfront. They say, “All councils should have Māori wards, Māori constituencies.” That’s fair. I understand your position. You’re being true to your word. With the Māori Party, they say what they mean and they mean what they say. My worry—

💬 Christopher Luxon: They’re open and transparent.

They’re open and transparent. I remember when this Government came to office, they wanted to be open and transparent. It’s a bit crumbly around the edges these days, but we would ask the Government to live up to that and back this new clause 7A, because it does do as the Minister says is her intent, and that is that, actually, what we’re trying to do with this bill is have the same provisions for general and Māori wards. It’s absolutely clear.

I’d love to read out the very specific provision in the Local Electoral Act that says a council may resolve to create general wards or resolve not to create general wards. Well, why not use the same language when it comes to Māori wards? Let’s say in the law that councils may resolve to create Māori wards or they may resolve not to create Māori wards, because I’ve just got this sneaky suspicion, going by the Government’s record on the other clauses, where they’d said things likes of “You can have appeal rights, but not on the Māori wards. You have to give public notice, but not on the Māori wards. You have to be able to have public submissions, but not on the Māori wards.” That raises me being suspicious as to really whether the Government is true to its word of simply wanting to provide the parallel. So what we’ve seen with this bill is not equivalent provisions, not provisions that truly give councils the option to do (a) or (b), but really, provisions that say, “Actually, you can just do (a).”

So this amendment proposing new clause 7A would make it absolutely explicit for councils that they can resolve. It may well be, I say to the Minister, that councils might be more relaxed about establishing Māori wards if they know that there is quite an explicit provision that if they feel it doesn’t work, if they feel it’s divisive, they can then pull it back and undo it. I’m not necessarily arguing that is the case. What I will argue is we as lawmakers need to play with a straight bat. There is no good reason for a biased position, a biased clause. Section 19Z(1) of the principal Act, saying that a council “may resolve that the district be divided into 1 or more Māori wards for electoral purposes.”, should be covered by a parallel provision that says that they can resolve to disestablish one or more Māori wards.

Then, just to get into the legal argument, I just don’t buy the argument that section 19Z(3)(c), which sort of implies you might be able to do it, is good enough. New subsection (3)(c) of 19Z says that if a further resolution is made, then that needs to be considered. Well, that’s not very strong. That’s not very explicit. I have spoken to lawyers who say there is doubt in this area. Good law is certain law. Let’s make absolutely explicit in the Local Electoral Act that the intent of this Parliament is that councils, both territorial authorities and regional councils, have the choice to do both.

I want to make plain that this amendment in my name is like patching up a bit of a mess. I’m not saying it’s the solution. If it really was a solution, we would have adopted the public notification, we would have adopted the same expiry clause, we would have adopted the appeal process—we would have done all those things. But it makes the bill better, and surely that is our job in Parliament. If Parliament’s intent is that councils are to have genuine choice, just like we’ve got with STV versus first past the post, just as with the decision that councils can make about creating wards or not, and just as councils can make a decision whether they want to have a mixed-member system, councils should have the power to disestablish Māori wards.

I speak on this Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill, new clause 7A, section 19ZGA, “Process For Disestablishing Māori Wards or Māori Constituencies”. I think the simple point—which, certainly, Dr Smith was making—is simply this: yin has yang. The Hon Nanaia Mahuta liked that—see, that was good. She disagrees with everything I’m saying, but at least she smiled, I’ll give her that. If, on the one side, you’re going to allow for the establishment—or the resolving, or whatever the words are in the bill—of Māori wards, you should allow for the disestablishment.

We could complicate this. We could talk about—but that is the simple point. It is not all one way, and nor should it be, in a modern democracy that is vibrant and that is thriving, where Māori are increasingly confident and standing in local government and in central government, and doing incredibly well when they do that. I say, actually, we should have the one and the other. It’s a very simple point.

It’s worth just dwelling for a second on the counterfactual, if you like, which is what we’ve got—the status quo. If—let’s be honest: when—this bill passes, sad to say, without change—because it just seems to be the position of this Government on this. I think where we’ve got to—and we agree; I’ll take Dr Smith’s or the Hon Nanaia Mahuta’s guidance on this—is a position in the law where it’s not quite that you can never disestablish but it’s certainly true that for at least two triennium—I think that’s the word they use in the law—two election cycles from 2022, there can be no change. Even if that’s not never in terms of disestablishing Māori wards, what it certainly is is a sense of a privileging of Māori wards. They really want to imbed these, lock these in, with the vested interests and so on that will mean it is incredibly hard, if not impossible, to change the position from the quasi-compulsion that we’re getting on Māori wards. The simple points are these: if you’ve got one, you should have the other; if you’re going to establish, you should have a disestablishment power—there is none at the current time.

Secondly, look, let’s not screw the scrum. I know the Chair’s got views on that phrase, but, anyway, let’s not screw the scrum in this bill. The reason, if we go into the substance of it, why I believe there should be a power to disestablish Māori wards or constituencies is along the lines of something I heard Christopher Luxon say. That is that in a modern Treaty relationship, it’s entirely misguided, it seems to me—actually, it’s wrong—to say the only way you can do that, the only way to provide for the Treaty, is to ensure that we’re making compulsory, effectively, Māori wards. That’s not the only way to do it. In fact, in all the conversations I’ve ever had with iwi leaders—from iwi from the bottom of the South to the top of the North—that’s never been where their headspace is at, actually. What they have wanted is something that is more akin to partnership and strategic. It is a discussion—not always a meeting of the minds, but at least a face-to-face discussion and understanding on the big issues that affect central government and, presumably, also local government as well.

So just to go for this sort of crass simplistic view of what’s got to be in local government with a screwing of the scrum to Māori wards, that’s wrong. There are plenty of other ways to do it. I also say, as a Māori man, actually, as Māori are increasingly confident, we don’t need that. There will be a time, I believe, when, actually, Māori don’t want that. They don’t want to just have these siloed wards or constituencies as the only way, as where Māori should be. I’ve rejected that for myself, personally. I appreciate everyone’s got their different story. I don’t want that. I don’t want to be over there as “Oh, well, that’s the Māori voice.” No. I’m Simon Bridges and I’ve got my own views on things, and that’s the way it should be. I believe, actually, that will be a confidence that more Māori come to in the years and the decades ahead.

The final point I wanted to make is simply this—and we’ve made it in every other speech, effectively, but it applies to this with equal force: there is an inconsistency here, when the rhetoric has been of consistency.

A whole lot of issues have been conflated in that contribution, but can I acknowledge, firstly, the councils, who have used their existing settings to be able to provide, for example, mana whenua committees, for participation on statutory committees within councils, as well has having very innovative approaches, and I think of Rotorua council and the way in which they work with mana whenua. That is the first point. The second point is Māori wards and constituencies—and I’ve always been clear about this point—are another part of a suite of measures to increase Māori participation and provide for the Māori perspective around the council decision-making. But let me come back to the primary point that was raised by Mr Smith and then reiterated by Mr Bridges, and that is to make clear within the legislation that territorial authorities and regional councils could resolve to establish Māori wards and constituencies or resolve to revoke Māori wards and constituencies.

I would just simply point the members to clause 6 of the bill as it stands, and draw your attention to new section 19Z(3)(c) inserted by clause 6(1), where it talks, “in either case”, in terms of the resolution by territorial authorities and regional councils to resolve to establish Māori wards and constituencies. Within that clause, there is the provision, after two triennial general elections to enable Māori wards and constituencies to bed in, for a further resolution to take place. Now, that could be the resolution to continue or to revoke. So it’s already there within the legislation. I would argue that those councils who are on this journey to providing Māori wards and constituencies, will have a very well-informed debate. In fact, I’d hope they don’t listen to some of the contributions in this committee, because it does not reflect the reality of the conversations they’re having around the council table.

So there really is no need for this provision, in my mind. There is already, within the context of this bill, ample provision for territorial authorities or regional councils to be able to make that decision. But it really comes back to whether or not you’re a glass half full or half empty—[Interruption] They didn’t like that—didn’t like that. The perspective that is set out in this particular amendment implies that they are taking a very dim view of the reality that councils are currently considering to progress Māori wards and constituencies.

I am going to make—

💬 Hon Simon Bridges: Point of order, Madam Chair. Well, I’m sorry—she’s come back. But we didn’t have a Minister in the chair and it’s very important. I’m sorry—we now have one.

Madam Chair, I really do want to make sure that we are clear on this important issue of law, because the Minister in her contribution has said that under the section that allows Māori to resolve to create wards, it only provides a positive power—and I am disappointed there’s a new Minister in the chair, Carmel Sepuloni, not because it is her, but because actually getting this law right is really important, and I really do want the Minister to address the question.

The Minister says, because the law says this, and I’ll read it explicitly, “unless the local authority resolves otherwise”—right? But there is no power for the council to resolve. There’s a power in section 19Z to create a Māori ward, and then we’ve found, and the Minister’s pointed to a provision that says, “But it might be able to revoke them”, because in section 9(7) of the Act it also says “unless the [council] … resolves otherwise”. How could any council or lawyer reasonably argue in saying that, “Yes, these referenda provide, unless the council resolves otherwise.”, when there’s no explicit power for the council to be able to resolve otherwise?

So the Minister, in disagreeing with the amendment that makes quite explicit that councils should be able to resolve to create Māori seats and councils should be able to resolve to disestablish Māori seats, says, “No worries, we don’t need that provision, because elsewhere in the law it says that council can resolve and certain provisions take place.” That is a very unsatisfactory position. I have spoken to a number of lawyers and they have said you could argue the toss one way or the other. It certainly isn’t explicit. You might be able to have an argument that it is in the sort of general powers that councils have, but why would we leave that uncertainty? Or is it, rather, that the Government would prefer there was the uncertainty, because the overall intent of the bill is to create a biased system where the law is stacked in one direction?

I was reminded, when I heard the Minister’s contribution—because it was a little bit like “I’m sorry, the dog ate my homework.” or “The cheque’s in the mail.” Because when the Minister says, “Oh, we don’t want to do this because it’s too complex or it’s not fit for purpose.”, I actually think they are vague, bureaucratic phrases that don’t actually do justice to the seriousness of the issue. So let me make plain again: the law says a council can resolve to create a Māori ward. Nowhere in the bill or the primary Act does it make it explicit that a council can resolve to disestablish Māori wards or Māori constituencies, and all that National members are arguing with this amendment is it should be explicit.

The last point I’d want to argue is this: the Minister never attempted to argue the policy position of this amendment, the policy position being if a council is able to resolve to create Māori seats it should equally be able, just as for general wards and other electoral decisions, to resolve to do the opposite. It is actually very significant that councils be able to do both. I think every member of this House would acknowledge that electoral changes are significant, that the issue of creating Māori wards is controversial, and as a consequence the Parliament needs to make the law both very explicit for councils to be able to create, to resolve to establish them, and quite explicit that they have the power to remove them. I think as legislators we are doing a disservice unless we adopt this amendment and make the law consistent with what the Minister, the Government, has said.

I move, That the question be now put.

Thank you very much, Mr Chair. I rise to speak on this very good proposed amendment from my colleague Nick Smith. Actually, there are quite a few issues that deserve the Minister in the chair, Carmel Sepuloni’s, response, and I very much look forward to her taking a call and actually responding to these very core questions that we’ve put on the table, both Nick Smith and my colleague Simon Bridges in the last few minutes. Also, we want to hear the Minister’s response.

Consistency is important, and if this legislation enables councils to hold a view over the establishment of Māori wards, it seems incongruous that they then don’t have the opportunity in the future to be able to disestablish them. The lack of consistency around that is concerning. It is not clear. Dr Smith has made, I think, a very, very strong point that there is a lack of clarity around that point in the bill, and he is asking for that confidence that the Minister has shared previously that is actually backed up in the specifics here in this legislation.

A couple of feedbacks that I think are useful for consideration around this proposed amendment, from the feedback that we had in select committee: we had comments from Ngāi Tahu, who were broadly supportive of aspects of direction of travel but had made it very clear that they believe that under their Treaty settlement and their relationship with the Crown, they have a direct relationship—direct relationship—with various local governments of the South Island. They had very little interest in the Māori wards as a proposal that is going to impact in any way—in any positive way, in any meaningful way—their ongoing relationship with the Crown.

My question, Minister, is if you have, in a Canterbury context, Ngāi Tahu, already holding that view, in the future deciding that, actually, the council’s decision to perhaps in the future establish a Māori ward is not working for their relationship, on behalf of Ngāi Tahu—direct relationship with the Crown—and they would like the council to reflect on the merits or otherwise, the appropriateness or otherwise, of a Māori ward in Canterbury, what this legislation is saying is that there is no possible way for the council to be able to respond to that request from the very Treaty partner that they have been required under legislation to have a strong and enduring relationship with.

This is poor law, Minister. It is not clear, and it doesn’t actually deliver what any normal, average person would expect, that if you give a power to a council to establish a Māori ward, they also, if circumstances—

💬 Louisa Wall: Consult with mana whenua—you consult with the iwi. Pretty simple. They won’t propose it if the iwi don’t want it.

—and perspectives in that community, including those who have the direct relationship between local rūnanga, iwi, and the Crown, might wish to see change in the future, this actually—

💬 Chris Bishop: Point of order. Thank you, Mr Chair. Look, I don’t like to tell tales, but I did hear a member from the other side use an unparliamentary word in relation to the speech that Mr Muller was just giving. It related to the word “dog whistle”.

CHAIRPERSON (Adrian Rurawhe): I didn’t hear—I certainly heard an interjection, but I didn’t personally hear an unparliamentary term. You need to say who.

💬 Louisa Wall: Making things up.

CHAIRPERSON (Adrian Rurawhe): Did a member use an unparliamentary term? Would you like to tell the committee exactly who you’re talking about?

💬 Chris Bishop: Well, that’s what I heard, but the member’s now accusing me of making things up, which is definitely out of order.

CHAIRPERSON (Adrian Rurawhe): Yeah, you shouldn’t take offence on—you know, you really need to construct the point of order correctly. You need to tell me. I can’t make a ruling if you—I’ve told you and the committee that I did not hear any unparliamentary statement. If there was one, it would be helpful if you told me who—

💬 Chris Bishop: I just did.

CHAIRPERSON (Adrian Rurawhe): I’m sorry, you did not.

💬 Hon Simon Bridges: I believe—point of order—I heard Louisa Wall say, “dog whistle”. I mean, it could be that she said the “pog and thistle”, or—I mean, it’s possible, but I believe she said, “dog whistle”.

CHAIRPERSON (Adrian Rurawhe): Well, I can only appeal to any member that has made an unparliamentary statement to stand, withdraw, and apologise. And if—

💬 Hon Simon Bridges: I mean, if she’s saying she didn’t, that’s fine—we’ll move on—but I reckon she did.

CHAIRPERSON (Adrian Rurawhe): Well—

There was at least quarter of an hour left, I think, the last time I looked up on there!

CHAIRPERSON (Adrian Rurawhe): Sorry, I’m going to re-correct the clock.

It was about a minute. I can carry on, I’m sure.

CHAIRPERSON (Adrian Rurawhe): I think it was just under two minutes, but we’ll put two minutes in there.

That’s fine, Mr Chair. I’m very sure I’m going to have an opportunity to share my dulcet tones and remarkable insight for Willie Jackson to dine out on again in this evening’s session.

One thing the Minister said the last time she spoke was that this bill is part of a significant suite of changes which will be coming in the near future. This is, again, why I return to that fundamental point around fairness and equity with respect to the time that we have had in discussing these issues, because, actually, this particular amendment is one that’s justifiable, does deserve an opportunity to be tested more than just here over a few speeches, and should have actually, Minister, been part of a far longer process. I think it’s a very fair amendment, and I would hope that the committee would see the merits of it when it considers a vote in due course.

I move, That the question be now put.

The question is that the amendment be agreed to.

In line with an earlier ruling, the amendments seeking to direct councils on how to establish Māori wards or constituencies are outside the scope of this bill. Therefore, the Hon Dr Nick Smith’s tabled amendment inserting new clause 7A, requiring councils to consult with a number of named iwi authorities, is out of order.

We now come to the debate on clause 8. This is the debate on the amendments to section 138A of the principal Act relating to special provision for certain polls and extraordinary elections. The question is that clause 8 stand part.

Clause 8 Section 138A amended (Special provision in relation to certain elections to fill extraordinary vacancies and certain polls)