Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill

Members, we now come to the debate on clause 2. This is the debate on the commencement of the bill, and the question is that clause 2 stand part.

Members on this side of the House are concerned that we are being made fools of by being the fastest lawmakers in the west. Everybody would be aware that this is a bill that was introduced under urgency. It was a bill that has gone through a sham select committee process of only six days. It is a bill of which New Zealanders only received a single day in which to make submissions—something that I have never seen in my 30 years as a member of Parliament. And my question for the Minister is: why should the bill commence immediately? Why should we make a farce of the process?

Now, myself and the Minister in the chair, the Hon Nanaia Mahuta, have both been members of this House for a long time, and I have heard her give so many very principled speeches about why retrospective legislation is wrong. I’ve heard the Minister in the chair say that if Māori have lodged a claim before the courts and the process is midway through, this Parliament shouldn’t pass law that cuts across it. I had some research done about how many times the Minister in the chair has argued that retrospective law is wrong, that if people are going through a process you shouldn’t have law that cuts across it. Well, the commencement clause means that there are tens of thousands of people who are in the middle of a legal process that this commencement clause cuts right across. That is, we have seven communities across New Zealand representing populations of over a million people that are due to have a poll. They are in the middle of a legal process. They have acquired the numbers of signatures under a law that the Minister in the chair supported and wrote in 2002. So I would argue, based on her very own comments, that the commencement date of this bill should be deferred to the point where it is not retrospective, and the rights of those hundreds of thousands of people are respected.

Now, we raised these issues of retrospectivity at the committee. I would much rather at the select committee have been debating a more appropriate commencement clause for this bill. But the chair of the committee sitting opposite to me said, “There ain’t time. We aren’t having any amendments.”—none.

💬 Chris Bishop: None.

I’m at a loss, Mr Bishop, as to why would you bother sending a bill to the select committee if the Government chair of the select committee says no amendments are allowed to be considered. I’d love a member opposite to argue a simple point: what is the point of a select committee process if the Government says, “We’re not prepared to consider any amendments to the clause, let alone this commencement clause.” So I say to the Labour Minister in the chair: this has been a Government that’s been there for four years; if it was so urgent, well, why was it not done in 2018 or 2019 or 2020? She’s been a Minister and this has been a Government for a long time. Why have they not done it earlier? Why are we in this ridiculous process where we are riding roughshod across people’s legal rights? What does she say to the thousands of people that have signed a petition quite lawfully seeking a poll? What is she saying to those people that have given thousands of voluntary hours to a legal process of which they are midway through? And that is why I ask the Minister to consider our amendments to extend that commencement date and, in this particular area of electoral law, show some respect for process and for the democratic traditions that make New Zealand such a great country. I challenge her to respect the advice of the officials that sit in this House that say that on electoral law, there is an extra duty to consult and to have respect for process, and that’s why I ask the Minister to consider our amendments to extend the commencement date so those legal processes can be respected.

I listened with interest to the contribution of Mr Smith and can remember many a time when he as a Minister introduced legislation into this House, through all stages, without a select committee, under urgency. So it’s a bit rich for that member to be saying, never in his time, when plenty of times that member’s been responsible for putting through numerous bits of legislation through all stages under urgency.

But let’s come back to the particular clause, clause 2, which simply states that the bill will come into force on the day after Royal assent. But let me come back to a few salient points and why we were wanting to ensure that this bill was going to go through in time to give certainty to councils, who were worried because by 22 February, citizens could demand a poll. That’s why at the beginning of February, I went down to New Plymouth to signal that there would be legislation coming into the House to remove the poll provisions in order to give effect to a short-term fix that would be ready for the 2022 elections. That signal was heard loud and clear by many councils, who over a period of time had lobbied for this particular change.

More so, in terms of the commencement date and the concerns of council that were well represented to me—and there were about nine that were well represented to me—it would cost in the vicinity of about $30,000 to $250,000 for them to undertake a poll. So getting this legislation through would send a clear signal in terms of removing the poll provision and not going into an onerous cost, and an unnecessary one. So again, this bill provided greater clarity for that in keeping to the time frame.

I note that last week, when we had intended to get the bill through under urgency, Auckland went into a higher alert level and the business of the House changed. On Thursday, it was clearly indicated by the Business Committee that this bill would go through today under urgency and still give that line of sight and assurance to councils that we intended to proceed with haste. That gave them confidence. That gave them confidence in terms of some of the limitations that might be put on them and unnecessary expense that might be put on them, which they wouldn’t need to carry if this bill was going to go to its final stages.

Again, Mr Smith raises a very valid point, and he’s done it time and time again through this debate. I was a member on the Justice and Electoral Committee—in fact, it could have been the Local Government and Environment Committee—when Sandra Lee was the Minister for Local Government and introduced the bill, and I was just a backbench MP, and there were a number of political sentiments at the time that challenged whether or not her innovation in that Act was going just a bit of a step too far.

I can remember the debate around the Treaty clause in that particular Act. I can remember the debate around introducing Māori wards and STV at the same time. I can remember the reasons why a poll provision applied to Māori wards and constituencies and an STV change in the electoral system. But suffice to say, there were sentiments at the time that thought even the prospect of councils putting a resolution to its elected representatives to have Māori wards was just a step too far, hence the poll provision.

Now, members on that side of the House over the last 20 years had 10 of those years to try and do something about it, but oh no. They’ve signalled they want to stand in Māori wards, but they don’t want to make the changes that are critical to signalling “We want to work with Māori.” Quite simply put, we do have an electoral system in New Zealand that has two electoral rolls—Māori and a general electoral roll—and what this does is pass on the same opportunities to Māori at a local level to be represented around the council table.

Can I come back to a very narrow—

💬 Hon David Bennett: Please.

—part of the bill, which is the commencement clause. Well, the member on that side of the House took liberties—no one was worried about that. So while this is a very narrow part of the bill, the intention is to ensure that as we pass this particular bill, which is the first part of a short-term fix—firstly, to remove the poll. There will be a second stage. It will go through a full policy and select committee process to ensure a more equalising treatment of some of the issues that have been raised by submitters, and an opportunity for us to look for a longer-term fix beyond the 2022 election. I support this clause and no amendment to it.

Thank you, Madam Chair. And I wish simply to ask the Minister how she made the decision that it was worth rushing this legislation through under urgency to achieve the commencement date in clause 2, just to ensure the provisions in the bill would apply for one extra local body election. This legislation was passed in 2002, and, if I recall correctly, there were local body elections in New Zealand in 2004, when Labour were in power; 2007, Labour were in power; 2010, we were in power; 2013, us again; 2016, us again; and then 2019, Labour. So there’s been at least three, if not four, council elections where Labour had the opportunity to pass legislation like this and they didn’t. How is it now so important to use urgency, with all the problems that comes with, just to ensure that the provisions come into effect one election earlier, when so many have been done under the current rules?

To help give the Minister an idea of what sort of answer would be helpful, can she tell us how she feels about parliamentary process? Does she think that it’s important that people are consulted? Does she think the procedures of Parliament are important? And I ask that because her response to Nick Smith was, “Well, he did it so it’s OK.” I think to use Nick Smith as a kind of moral low-water mark is, potentially, inadvisable. Perhaps the Minister—

💬 Hon Member: He has got a point though.

Potentially—I said potentially. I’m just raising the possibility, but there’s a serious point here. The Minister should actually tell the House, in response to the criticism that’s been levelled against her, does she value the processes of this place? It’s not good enough just to say “Other people have abused it, so I can too.” And once she’s told us does she value democratic participation and parliamentary procedure and to what extent, then she could maybe tell us how she made the decision that bringing these provisions forward by one election when we’ve had the provisions for six in a row, at least three of which her party was in power—how did she decide that was more important than parliamentary procedure and respecting it? If she can tell us how she made that decision, I think that would help a lot of people rest a lot easier with the way that this bill’s being passed. And if she gives a good answer, then I might not need to ask her any more questions. We look forward to hearing from the Minister.

Thank you, Madam Chair. I’m just very disappointed in the couple of words that the Minister used in her answer. She mentioned the words “unnecessary expense”. Now, I’d like the Minister to explain what she actually means by “unnecessary expense”, because that implies that the democratic process of a council—or if somebody brought a petition to a council, it would be seen as an unnecessary expense for that council to go through. I find it completely incredulous that the Minister would say that. We have a political system that is based on democracy, and that’s why we have some of the most senior and respected members of our political system—

CHAIRPERSON (Hon Jacqui Dean): Order! The member will resume his seat. This is a clause by clause debate. It is, being a clause by clause debate, very narrow in scope. I am very willing and happy for members across the committee to be fulsome in their contributions because of the truncated nature of this bill, but I would be appreciative if the member would stick to the essence of clause 2, which is the commencement of the bill.

Madam Chair, it is about the commencement, because the Minister talked about the unnecessary expense, and that effectively means that she’s bringing the commencement date forward, so councils don’t have the potential of having to pay all costs of any unnecessary expense, in the Minister’s view, of local democracy. So that’s why the commencement date is so crucial, Madam Chair. It is in the sense that the Minister is basically saying that she wants to circumvent a political process for the potential savings of certain councils. Well, we have a political process for a reason, because councils are not infallible. Every three years, they go to election—just like Governments are not infallible. They go to election every three years. That is the ultimate sanction that the public has.

Now, to take away the democracy in the commencement date does that, because the Minister has made it very clear in this Chamber in the last half an hour that the reason behind this commencement date is to take away unnecessary expense. It takes away local democracy. That’s what this bill is about. The Minister just admitted it. I would like the Minister to explain what she considers to be unnecessary expense. That is the fundamental reason why they’ve got a commencement date—that is the one we are seeing here today. How she defines “unnecessary expense”, how that actually relates to local democracy and decision-making processes, and then, finally, what sanctions do the public have if they don’t have the ability to actually make their voice known? Just say the public have a different point of view from the councillors—shouldn’t they be listened to? Shouldn’t they have the ultimate sanction like they do at election every three years?

Is it now going to be a question of unnecessary expense, of a Minister’s view of what the expenses of the council should be, that’s going to override democracy? Or should it actually be a commencement date that actually looks at what is practical, gives the community the say that they deserve and the say they get every three years?

It’s a serious question for the Minister, to actually explain those words. I’m just using the words that she used in her commencement date debate, in her speech, and she was very clear that the unnecessary expense is something that is a driver for her decision making to have this current commencement date. If that is the case, then I would like the Minister to explain that because that overrides democracy in this country.

I’m quite happy to explain my own wording and the things that I’m presenting to the committee. Firstly, the commencement clause in its intention is to ensure that as soon as the bill passes all stages, it will be given effect. That will give a signal to councils who will have been notified by 26 February about the intention to demand a poll about the intention of Parliament. We are passing this legislation through to give them certainty.

Can I just come back to the particular wording referred to by the member David Bennett and highlight that the nine councils who potentially would be required to hold a poll needed greater certainty because, if it is the intention of Parliament to pass the legislation that we are considering tonight, then holding a poll actually becomes a defunct exercise, and that’s the unnecessary expense that I referred to.

Thank you, Madam Chair. So we’re talking about the commencement of this bill, the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill, and the clause says that the Act should come into force “on the day after the date of Royal assent.” Parliament usually takes a number of months to read through a bill three times and have a select committee process. Then, when it’s passed its third reading, it goes off to the Governor-General, who signs the bill and gives it its Royal assent, and so that’s after Parliament has done its business with it. This bill, of course, has been highly truncated down to about a week, and people have had a very small amount of time to make their comments made.

So my simple question and suggestion to the Minister is that she changes that to “This Act comes into force three years after the date of Royal assent.” I say that because that would give the people of New Zealand the opportunity in a general election to have their say on this issue, because at the most recent general election, the Labour Party manifesto said quite clearly that “Labour will ensure that major decisions about local democracy involve full participation of the local population from the outset.” That was the statement of the Labour Party at the last election. So the moment they’ve been elected, arrogance has taken hold. They’ve got rid of Winston Peters, and they have wanted to bring in this piece of legislation in haste and without proper understanding on the part of the people of New Zealand.

So the question is, I suppose: does this really matter or not? The Minister’s view is that it’s just a short-term fix, no big deal, not consequential, it seems—“A short-term fix and we’ll get it sorted in time so that it happens ahead of the next local body elections.” Now, the obvious response to that would be that if you really wanted to get ahead and send the signal to local government that these referendums wouldn’t amount to anything and the voice of the people wouldn’t amount to anything, then you could have introduced this bill a long time ago.

The fact that the Government didn’t introduce this bill is a reflection of the fact that they knew that the people of New Zealand didn’t like it, and that’s the basic message of this bill, which is to say, “We do not trust New Zealanders to make the right decision on these matters. Whenever it goes to a poll, it loses, primarily.” It loses because New Zealanders don’t like it, and New Zealanders don’t like it primarily because they believe that people should be treated equally before the law. They recognise that in this House, there are Māori seats that were brought in more than a century ago, at a time when the country did face real issues—more than a century ago. Those independent Māori seats, I believe, have had their day, but it’s a very big step to say, “Well, we should extend that further to local government.”

So this is a constitutional issue that we should debate openly as a people and as a House, and what we have here is a Government sneaking it through, deliberately disguising and misleading the people during the election campaign, and then bringing this bill through and not giving people a chance to have a say about it. So it seems to me that the obvious way around the matter, having introduced this bill, is to say that it should come into effect three years after it’s been given the Royal assent. That would give the people of New Zealand the chance at a general election to toss this Government out and for the bill to be amended before it comes into effect, and at least we could have a decent discussion about it.

The other point that I’d want to make, of course, is this—

💬 Hon Simon Bridges: Well, you can make it.

Thank you, the Hon Simon Bridges. The other point I’d like to make is that, indeed, something that we try to avoid in this House is to bring legislation that is retrospective.

💬 Hon Simon Bridges: That’s my point.

Well, it’s a point that a number of us have made, and Nick Smith has made, which is that many good-intentioned, good-natured New Zealanders have signed petitions in the full expectation that they will have their say on an important issue of relevance to them. Not everybody agrees with the concept of having different seats at local government on the basis of ethnicity, and I just want to make the point that these are very difficult issues for New Zealanders to grapple with and we should have proper debate. We should not have it snuck through in this fashion. So I’d like to understand why we couldn’t postpone this for three years.

The first question I have for the Minister is in her contribution, three times I noted she said the bill is a short-term fix.

💬 Hon Paul Goldsmith: Thrice—thrice she said that.

She did indeed. So I’ve got a very simple question. I’ve looked back on a number of statutes of which Ministers have said a bill is a short-term fix, and every one of them has an expiry clause that says, “Hey, look, I’ve got a really urgent problem. I’m going to race a bill through Parliament with a commencement date.”, like what I’ve got here, but they have an expiry clause in them. Now, the reason I’m raising that at this time is the next clause that we debate is that expiry clause. National members would be more relaxed about the commencement date if the Minister was able to give us a signal that she is being honest and upfront with this Parliament and the people of New Zealand when she says it is a short-term fix.

You see, we had a bill last year about the party pills. You may remember? Rushed through. [Interruption] Yes it did, but it had an expiry clause in it. It was a short-term fix. It’s got an expiry clause, and then what happens is that they’re going to bring another bill along and then they’re going to do it again, right? So my question for the Minister is: when she said it was a short-term fix, why is this law permanent? Done lots of short-term fixes. I can remember at least a dozen, and I could bore the Parliament by going through them. Each one of them had an expiry clause. So my question to the Minister, who has a habit on this issue of proposing and making a claim that is true to be false. She said the bill—[Interruption]—well, the member challenges on that. Well, I’ll take her through it. The Minister said that this bill was simply to do one thing. We’re just going to make the law the same for Māori wards and general wards. Well, that’s actually not true—that’s not true at all. The Minister said that this was about getting rid of a racist law. Well, when she found out that she’d wrote the law, she very quickly changed her tune on that. She said—I’ll make another claim that she made—that if a community does not like this law, we have a thing called democracy and you can just vote out the mayor and the council and they can reverse it.

💬 Hon Member: But they can’t.

But they can’t, because in clause 9 of this bill, she deliberately puts in a provision that says that a newly elected mayor and council cannot do it.

CHAIRPERSON (Hon Jacqui Dean): Order! Can the member come back to clause 2?

And so I say again: the Minister, in speaking on this provision, has said that it’s a short-term fix. And I want to test her and to say, well, if she says it’s a short-term fix, let’s put it in the law. Let’s say what you mean. Let’s do as you say. So if it is a short-term fix and the Government, in good faith, is going to have a process further down the track where there is proper public consultation, where there is a robust select committee process, let’s put an expiry clause in this bill to ensure that that indeed happens.

Now, the second question I’ve got is with respect to retrospectivity. Now, this bill cuts across people who have acted in good faith. There are 8,703 people in the Northland Regional Council who have signed a petition for a poll. There’s another 5,133 in Whangārei, 1,376 in Kaipara, 6,042 in Tauranga, 1,764 in Taupō, 903 in South Taranaki, 551 in Ruapehu—I think that’s in my colleague Barbara Kuriger’s, or is it Ian McKelvie?

💬 Barbara Kuriger: Ian McKelvie’s.

Ian McKelvie’s. There are 722 people in Gisborne. There are 2,874 people in New Plymouth. Each of those people have exercised their legal right, and with this commencement clause, those 25,000 people are having their rights taken away from them.

💬 Hon Simon Bridges: It’s a right without any effect—that’s right.

That’s right. Those 25,000 people are being treated with disrespect. Now I know that if this was a Māori legal process and these were 25,000 Māori people, there would be screams. There would be howls of horror. There would be almost a hīkoi on the steps of Parliament if we were to do that against 25,000 people. If you truly believe in equal rights of citizenship, then you need to explain why the 25,000 people who have complied with a Labour law in good faith are having their rights taken away by the provisions in this clause.

Well, thank you, Madam Chair. I rise as a reminder to the Minister in the chair, the Hon Nanaia Mahuta, that embracing the new format of the committee stage put in place by the Standing Orders Committee—where members are invited to ask questions of the Minister and try and seek more information that, you know, people watching the Parliament, members of Parliament, might be interested in hearing—we can actually ask what the Minister’s thinking and what the rationale behind something like the commencement clause is. People sitting at home watching this might like to know that the Chair of the committee just turned to the Minister, as if to ask “Do you want to take a call?”, and the Minister shook her head and said “No.” So I’m probably wasting my time. People watching who want to know what the Minister’s thinking are probably wasting their time.

But hopefully I’m wrong and she’s going to get up and answer a simple question: how much does she respect public participation in the parliamentary process and consultation? Why was it so important that after six or seven council elections under the current rules, it was so critical to retrospectively change the rules for this next one? And how did she go about reconciling the two? Was it a conscience matter for her? Did she have a debate with her colleagues? Did she seek advice about the importance of going fast versus respecting the procedure? I think if the Minister could stand up and answer that question, it would allay a lot of the concerns, because people are sitting there, saying, “How is it so important to bring forward a change by one electoral cycle after seven in a row that were the same, so important that we’re actually going to have almost no meaningful parliamentary process and no opportunity for the vast majority of the public to be consulted?”

I think it’s a question that the Minister should get up and answer. So here’s her opportunity, right? Just to repeat it once more: how much does the Minister respect parliamentary process and public consultation, on the one hand? Why is it so important to bring forth this change by one electoral cycle, when there’s been six just like this already? And how did she weigh the two up?

Firstly, in response to clause 2 of the bill, which is a very narrow clause, and in speaking to the two amendments that have been tabled in the name of the Hon Dr Nick Smith—firstly, one recommending the commencement date of the bill being 1 May 2021, and then the second one, that the commencement date be 9 October 2022. I’ll take them as a combined supplementary set, which is, in effect, changing the day and the dates of the bill coming into effect.

Quite simply, my response as to why I do not support that and recommend that the committee do not support those amendment changes is that it will, in fact, delay the opportunity for those councils who resolve to have Māori wards to be in readiness for the 2022 elections. It will prevent them from doing so, and the whole contention of this bill was to try and ensure that local authorities have the opportunity to make decisions on Māori wards and constituencies in time for the 2022 election.

I do have respect for process, and I actually respect councils who over a period of time have contemplated this issue. They’ve worked in very practical ways to try and give effect to local representation. Over the past 19 or 20 years, 24 councils have tried. Only three have succeeded: one by resolution, the Waikato Regional Council; one through a local bill—

💬 Hon Dr Nick Smith: Are the people wrong?

You either want to hear the answer or you don’t. One through a local bill, which is the Bay of Plenty Regional Council, and most recently the Wairoa District Council. So only three out of 24 who have tried to use this legislation have in fact succeeded. Now, that in itself is indicative of how challenging and onerous this discriminatory provision is to establish Māori wards and constituencies.

Secondly, the other point to note is that throughout this submission process—and I want to acknowledge all the views on all sides of the spectrum who took the time out to present to the select committee and have their voices heard, because the select committee heard all manner of views. But 21 councils submitted to the select committee in favour of the provision. Yes, some concerns about time frame, but by and large the principle and the policy approach, they support it because they know within their local community that time has passed and sentiment and mood has moved on, and the benefits of having Māori voice around the decision-making table at the local level is in fact a positive contribution to the way in which the world is moving—certainly New Zealand communities.

So I think it’s disingenuous for members on that side of the Chamber to make out as if the views that have been around over at least the past six years, wanting significant change in this area, have been ignored. They have not. Two-thirds of those unique submissions that were heard by the select committee—

💬 Hon Dr Nick Smith: ‘Cos you jacked it up! They got forward notice.

—over 2,000 of them—again, if the member wants to hear the answer, he’s quite welcome to stay silent. If he doesn’t want to hear it, I’ll sit down. But two-thirds of the 2,000—

💬 David Seymour: Point of order, Madam Chair. Quite apart from the fact the Minister appears to be filibustering her own bill, this is a narrow debate. The question is over the commencement.

💬 Hon Members: Ha, ha!

💬 David Seymour: Well, I actually have been keeping a narrow debate. If you could stay silent during a point of order, that’d be great. But what the content of the submissions was is simply irrelevant. The questions that have been put—

Oh, thank you—[Interruption] Thank you. The member will resume his seat, thank you. The member made a good point of order and then started to debate. I will note that I did alert the committee to the fact that this is a clause by clause debate. Therefore, the debate should be narrow. However, we are in urgency. This is a truncated debate, and so I am allowing the debate to range a little bit wider—not too wide, members, a little bit wider—in order to keep the committee running smoothly. But thank you for that point of order.

Thank you, Madam Chair. I wanted to speak to a very clear consequence of the commencement clause and the effect of it, and that is the clear retrospective nature of this bill from commencement. We have heard from the Hon Paul Goldsmith and the Hon Nick Smith about this, but I want to give a more significant exegesis in relation to—

💬 Chris Bishop: A what?

An exegesis. In relation to the legal and, if you like, theoretical aspect of retrospectivity, and I don’t do that to take the mickey; it’s very important. It’s important because retrospectivity, when it applies in the criminal sphere, particularly where there are criminal penalties applying backwards, is contumelious—

💬 Hon Member: Whoa!

—I just thought I’d show them I could do it twice in one speech—is entirely wrong. But, look, the serious point is this: regardless of whether it’s criminal or civil, it is always against the rule of law—which should govern how we operate in this Parliament, in our courts to act retrospectively in relation to bills that become Acts in this Parliament. The reason in this case, I suggest, is very, very simple, and it’s the practical point that Nick Smith made. We apply the legal theory about retrospectivity to the practical consequences the Hon Dr Nick Smith talked about. People go out, they work hard to get signatures, they plan on a certain basis—that the law is going to stick with them as they do it, because it was the law when they collected the signatures of this referendum petition, but by the way, what we’re doing here is we’re changing the rules. We’re pulling the rug from out under their feet. That is, quite simply, against the rule of law and it is wrong.

The reality of that legal position here—in relation to the commencement clause, which by its very nature is retrospective as applied here, because we’re passing this law at this current time—is there’s seven communities where, in each of those communities, quite a number of thousand people signed the referendum petitions and, in fact, for a series of rohe, if you want to put it that way, of about a million people, who won’t get the chance to vote on this, notwithstanding the several thousand that signed the petition. I can tell the House about a woman who I’m sure is watching. Some of my colleagues may know her: Margaret in Tauranga, who went out to Grey Street—I’m sure I’m right. She set up the stall, she had the pieces of paper for people to sign this petition, she had the pens, the biros, the refills, and rain, hail, sunshine, she was there collecting the signatures to trigger the 5 percent on the basis of the law that should be in place, and would be in place, and would still be in place if it wasn’t for the fact that the commencement clause here is, in practical effect, retrospective in this bill.

So I’ve three questions for the Minister, and, dare I say it, they are the most important in this party that she should be asked and answered, if I do say so myself. Firstly, did she know—I’m not being a smart alec—did she know that the commencement of this bill will be retrospective in its practical effect? Secondly, was that—and again, I don’t think I’m being a smart alec about this—was that the reason that she did it, to effectively knock out the referendum provisions, or is that simply in her view a highly regrettable side-effect, if you like, from this? And thirdly, did she get the advice—actually while I’m a-roll, I’d add to that—and will she release the advice? I’d like to see what that advice was in relation to the very clear implication of this commencement clause, that this is a retrospective bill that will become retrospective law and, as I say, is offensive to the rule of law in this land.

Thank you, Madam Chair. Many of us are concerned about the commencement order of this legislation. So, to the Minister, we’re told that part two is designed to ensure the process between Māori and general wards are aligned and ensure we’ll be following the best process. So, apart from cost, could the Minister please tell us: why could we not put the cart before the horse, instead of the other way around, and ensure the processes are correct and consulted on before we take the steps that we are taking? And I want to ask the Minister if she’s absolutely certain that there will be no unintended consequences from doing the process back to front. My question, really, that I’d like the Minister to answer is: will there be any “Uh oh!” moments when we do part two of this legislation, given that part one will already likely be enacted? Thank you.

Thank you, Madam Chair. Look, I want to challenge the Minister in the chair, the Hon Nanaia Mahuta’s comments, or one of the reasons she’s given for the commencement date in this debate tonight, where she said that we need to do this all very quickly and rush to have the date come into commencement a day after the Royal assent, because this is a short-term fix that will deal with something that needs to be dealt with very quickly. So the obvious question that flows from that is: what is the long-term fix or goal or solution that she has in mind?

The very short period that we had for public submissions showed that there is a view out there that the idea of the Treaty partnership, a notion sort of introduced by judges in recent times, is interpreted by some to mean that decision making should be 50:50 between Māori and everybody else. There were some arguing that, basically, at local government level, we should have 50:50 seats. So what I want to get a sense of, in relation to this short-term fix, is whether there is a longer-term plan to extend that to 50:50. Fundamentally, I totally oppose that as a notion, as an undemocratic notion that is repugnant, frankly, to what New Zealanders see as the world that they live in, where it’s one person gets one vote and we’re all treated equally before the law.

So that is just one instance of why this is an important debate to be had in this House, and why I’ve put in an amendment suggesting that the commencement date should be three years after it is passed, so that New Zealanders have a chance to have a say on this issue and we don’t have it railroaded through late at night, at a time when New Zealanders are not watching—well, some people may be watching, including Margaret from Tauranga, but not many. So I do want to hear from the Minister as to what the long-term plan is and why she thinks it is absolutely necessary to pass this bill and have it commence so quickly.

Thank you very much, Madam Chair. I rise as the member of Parliament for North Shore for the first time in this House. I wish to speak on the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill, and in particular I wish to speak on clause 2.

This bill comes into force, as it states, on the day after Royal assent, and I want to question the Minister, the Hon Nanaia Mahuta, on one key aspect and a number of elements around that, because I think it is very, very important that she clarifies to this committee the background around why she has stated what she has stated in this committee. The statement by the Minister was as follows: that this change, or the inability to change the commencement date, relates to the fact that this will result in unnecessary expense. I must say that my background is very much involved with dollars and cents, so I am very interested to understand a couple of key elements in regard to the Minister’s comments, because, in effect, I see this as pretty fundamental around the commencement date, which a number of my colleagues here have put some good recommendations around.

So I ask the Minister to clarify, in particular: how did she calculate that additional expense? She quoted quite a significant range in dollars, and I think quoting somewhere around $25,000 through to around $300,000. I’m reasonably good at numbers, but that’s quite a big range. What I want to understand is: how did you calculate that range as an expense? I admit that that is a lot of money if we’re talking about the upper range. The second aspect I wish to clarify is: is this a real cost or is this an estimate? I think that’s important to clarify as well. The last aspect is: what is the cost of following true democracy? What is the cost that our communities, our electorate, the people of this country should pay to be giving up their rights, which I think this bill takes away in terms of that commencement date? So I’m looking forward to the Minister to clarify that point, and that’s all from me.

Point of order, Madam Chair. I do want to acknowledge that that was the new member for North Shore’s very first speech, and I feel he’s been short-changed. Normally, the clock goes for five minutes; when Mr Watts took his seat, it only provided for two, and I wonder whether there was an error in the system, because I thought for a very good first speech we should not be short-changing our new members.

Thank you for that point of order, and, indeed, there was a malfunction on the front desk here, for which I take responsibility.

💬 Hon Dr Nick Smith: He could start again, I suppose.

Thank you—thank you. The member actually has a further three minutes, should he wish to take it.

Thank you very much, Madam Chair, and I appreciate the good observation by my colleague the Hon Nick Smith on the clock there. I must say, I was getting right into the swing of this feedback and didn’t notice the clock, which I now note isn’t moving at all. However, as I say—[Interruption] Three minutes has started—right, so we’re back on.

As I was saying, I wish to clarify around the way in which these costs are calculated, because I think it is a really important point in terms of looking at a decision around a commencement date. I think we’ve heard some really good amendment suggestions around—and I do support my colleague’s proposal around an amendment of three years from now. I think that is a very sensible, a very pragmatic, and a very reasonable time line in order to do that, because this is an important consideration.

But going back to the point around unnecessary expense, which, as the Minister has stated, was pretty much the key reason why this commencement date could not be altered, I want to understand: what is the opportunity cost of incurring that amount of money or taking away the rights of local democracy? Because I think this is right at the heart of this. I don’t think you can put a number on that in terms of supporting our local democracy to be able to do what it needs to do and what it should need to do. And I think when we start putting dollars and cents around electoral law, elements around, you know, where people can have a view, I think we’re starting to move into territory which, to be honest, is not the reason why I joined this House.

So I think what I’m looking for is clarity around the expense from the Minister. I’m really looking forward to a good outline around the calculation of that expense, particularly some of the methodology around that; maybe some assumptions that were used. Ideally, the expense should be substantiated or evidenced, or there should be some background around that context. I mean, I think that’s reasonable. It’s hard to know.

💬 Simeon Brown: They’d have to do some work.

Well, I think it’s reasonable, but I’m sure those numbers are there, and so I’m looking forward to hearing a little bit about that, and, yeah, I appreciate that, and I thank you very much.

I want to respond to the new points that have been raised in this very narrow clause. And just by way of reference, there has been a Supplementary Order Paper (SOP) tabled by the Hon Paul Goldsmith which, effectively, in terms of clause 2, changes the commencement date to 31 December 2023. I use the same argument as I did for the previous SOPs to change the commencement date: that that will, in fact, not enable the purpose of this bill, which is to give effect to the provision for Māori wards and constituencies by the 2022 election.

In relation to the points raised in regards to cost—and I have proactively released the advice that I have received from officials on this bill, as well as the New Zealand Bill of Rights Act test, as well as the Cabinet paper. But members will note, were they drawing reference from the advice that I have received, that the cost of the poll varies due to the size of a council, and I have information here that says that holding a Māori ward poll for the Tauranga City Council is estimated to cost approximately $216,000, while a poll for a smaller council—say, for example, the Kaikōura District Council—would cost approximately $30,000. The members can contest it; it’s in advice that’s been proactively released.

Can I come back to the point, however—the very good point—raised by the member in relation to retrospectivity. And the member well knows that there are legislative guidelines in relation to this matter, but let me, for clarity’s sake, on the record, have it stated that the legislative guidelines that I’m quoting from, in the proactively released Cabinet paper on this issue, state that, “Legislation should have prospective, not retrospective, effect. However, if retrospectivity is intended, this must be stated in the legislation and be capable of justification.”—then it has a reference. And then I refer to my previous Cabinet paper: “The repeal of the poll provisions is justified because the changes avoid community division as well as supports greater opportunities for Māori to engage in local government. The bill is also clear that all councils have until 21 May”—which I’ve referred to in questions in relation to this matter—“to reconsider whether to establish Māori wards for the 2022 elections, knowing that the poll provisions will no longer apply after this stage.” And, in effect, that is the reference that I would draw the member’s attention to in relation to the issue of retrospectivity.

Thank you, Madam Chair. Thank you for the opportunity to take a call on the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill. I just want to pick up on what the Minister was telling us regarding the issue of retrospectivity. I think she really just touched on the issue of retrospectivity and sort of brushed over it to try and excuse the Government for what they are doing here by passing legislation which has retrospective effect in New Zealand.

Retrospective legislation should be used at the very, very, very last resort, not on something—

💬 Hon Member: Not on electoral law.

Exactly—not on electoral law, and something which is to do with democracy. So the justification that we were given by the Minister on why retrospectivity in this case is justified is because it avoids community division. Well, this is the redefinition of democracy—it’s now called “community division”. I find that absolutely astounding—that we’ve had a Minister come down here, on to the floor of this Chamber, and try to redefine democracy as community division. And the reason and the rationale for passing legislation through this Parliament, which retrospectively takes away the rights of New Zealanders to use what the law says—they can put forward a petition and have a referendum, a democratic referendum, and they’ve renamed that as “community division”. I think that New Zealanders watching at home—and I know there are many New Zealanders watching at home—will be very, very shocked that that is how this Government treats them and their democratic rights under the law.

I think that’s absolutely astounding and speaks to the heart of this Government and the shonky process that this bill has had right from day one. It wasn’t even put on the manifesto of the Labour Party when they took to the election. I think that’s absolutely shocking. And that’s another reason why this commencement clause—if this Government is going to be true to the democratic institutions and the processes of Parliament, this clause must be amended so that it has a prospective effect not a retrospective effect.

That’s why I’m very supportive of the amendment by my colleague the Hon Paul Goldsmith, which says that the Act does not come into force until 31 December 2023. I would be happy with anything which says, basically, “This legislation doesn’t come into effect until after the next local government elections.” That’s what the principle should effectively be. Ideally, it should be that this should have been taken to the public and the public should have known what parties were going to be putting forward in the election and what legislation they were going to pass in their Parliament if they were elected.

But the next best is to essentially say, well, this is going to come into effect after the next local body elections so that the local body elections can debate these issues, can have a discussion around, do the candidates—the people going for those roles—support Māori wards, or do they not, and the public can then have their say and vote through that mechanism. But, no. The Government has decided that, actually, that process would cause community division. That would be divisive and that would mean that by taking away people’s democratic rights, we can reduce some of that community division—i.e., democracy—and somehow have a more peaceful and united New Zealand, where everyone gets along.

Well, I’m sorry, but, actually, our democracy—sometimes people have different perspectives in our democracy. Sometimes people disagree. Sometimes people disagree very passionately in our democracy, and that’s part of what it is to live in a free and democratic society—a liberal democracy. I might not agree with you but I can still sit here and we can discuss it and we can debate it, and sometimes it will be quite hot and it will be very excitable and it will be tough, but we should have those discussions. But, no, the Government has decided that we’re going to label those discussions as “community division”, because this Government would rather divide, and divide New Zealanders, rather than actually allow New Zealanders to have their say in a free and democratic society.

So I will be proudly supporting the amendment by my colleague the Hon Paul Goldsmith—excellent amendment—because this legislation must be prospective not retrospective, and that amendment says the Act will come into force on 31 December 2023, which gives effect to that. That’s what this Government should be supporting as well. Thank you, Madam Chair.

I move, That the question be now put.

The question is that the question be now put.

The question is that the Hon Dr Nick Smith’s tabled amendment to clause 2, changing the commencement date to 1 May 2021 be agreed to.

The question is that Dr Nick Smith’s tabled amendment to clause 2, changing the commencement date to 9 October 2022 be agreed to.

The question is that the Hon Paul Goldsmith’s tabled amendment to clause 2, changing the commencement date to 31 December 2023 be agreed to.

The question is that clause 2 stand part.