Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill

Members, we now come to debate on clause 5. This is the debate on amendments to section 9 of the principal Act, relating to non-binding referenda. The question is that clause 5 stand part.

Point of order, Madam Chairperson. In your introduction, you said that section 9 was about non-binding referenda. I wish to make it plain that that is not correct. Section 9 of the Local Electoral Act is for both binding and non-binding referenda, and I think it’s important that that is made plain before we get into the debate on clause 5.

The Hon Dr Nick Smith, the councils can resolve to make it binding.

Correct. So for the comment to be made that this is about non-binding referenda is incorrect. This provision is generally used for binding referenda; it is for both.

We now come to debate on clause 5. This is the debate on amendments to section 9 of the principal Act, relating to referenda.

If you want a clause to illustrate what a biased dog of a bill this is, I ask members to look at what is being done in section 9. Section 9 of our local government electoral law says that a council can have a referendum on any issues it chooses. Let’s look at what section 9 says. It says it can have a referendum on whether it provides a service or does not provide a service. It can have a referendum on any policy—any policy whatsoever—or any intended policy. It can have a referendum on any future activity. It can have a referendum on any issue affecting the wellbeing of a community. It can have a referendum on whether it has wards or does not have wards. It can have a referendum on whether it wants to have a community board.

But what this clause says is the only thing you cannot have a poll on—you are going to be specifically prohibited—the only thing you are prohibited from having a poll on is whether you have a Māori ward. Now, my colleague Simon Bridges said, “But all the way through, the Minister’s been saying ‘All I’m doing—don’t worry, New Zealanders—I’m just making the law the same.’” Well, this clause is definitely doing the opposite. It says the only thing we cannot trust councils to decide to have a binding referendum on is the issue of Māori wards, and how odd—how weird—is such a provision?

Imagine if I in the general Electoral Act brought a bill in and said, “The Parliament can decide to have a referendum on anything it likes, but you can’t have a referendum on, say, cannabis liberalisation.” People would say that’s pretty weird law: why would you specify just one little thing that the Parliament is not allowed to have a referendum on? This is bizarre law that shows how much this Government is determined to screw the scrum in favour of Māori wards, and rather than the Government giving this dishonest dribble that “All we are doing is making the law the same for everybody.”, this provision, in section 9 of the Electoral Act, shows how much they are screwing the scrum.

I don’t agree with the Māori Party, but I do respect the Māori Party for this. The Māori Party has said to New Zealanders, “We want Māori wards on all councils”, and that’s a fair enough position. They’ve advocated that, they’ve moved amendments on that. But the sneaky Government are saying, “Oh no, no, no; we’re just neutral. We just want communities to be able to decide, but we’re going to write the law to screw the scrum”—so that they can only decide to have Māori wards; they can’t decide to undo them once they’ve done them—“and we’re going to pass this bizarre clause in section 9.” And I’ll read it, for the point: a council can have a referendum on any issue they like, except the only provision that they are explicitly prohibited by law on having a referendum on is Māori wards.

Let’s be frank and honest about what the Government is doing here. What the Government did, and Nanaia Mahuta was part of a Government that did this, was put the referendum provisions in around Māori wards. And Labour principles are as shallow as this: “We agree that communities should be allowed to vote, as long as they vote the right way. And if they vote the wrong way, well, we’ll fix it, we’ll just take the vote off them.” Not only are they taking the vote off them, they’re saying “Even if your democratically elected council decides it wants to have a referendum on this issue, we’re going to stitch up the law.” And specifically, the only area where they are specifically prohibited from being able to have a poll is with respect to the issue of Māori wards. That is not neutral law; that is biased law, that is a dog law, and that is a law that is an offence to anybody that is trying to write fair electoral law.

Isn’t it a nonsense if we’re saying to a council that if you want to have a decision over whether you keep a single tree in your area, you’re allowed to do that, but on a really important constitutional question as to whether your council is elected on the grounds of ethnicity, then you are specifically prohibited from doing that? That is bad law, and I urge the committee to oppose this clause.

At the risk of repeating myself on this particular issue, I think it is important to clarify that the provision in relation to non-binding referenda applies to anything. So, for example, if a council wanted to hold a non-binding referendum to gauge the sentiment on any issue, such as those named by the member, including Māori wards, as long as it’s non-binding it can still continue. What this provision does is remove the discriminatory binding poll which has already been shown to be an onerous threshold to the creation of Māori wards. It prevents that from occurring.

Now, the member rightly points out, however, that a council could hold a binding poll, in theory, in relation to general wards, but as I’ve raised in previous parts of the debate, never in the living history of several councils and Local Government New Zealand has that binding referendum ever been applied to general wards or constituencies.

The member also raises the point about public consultation. Well, in the creation of general wards and constituencies, rural/urban wards and constituencies, that matter goes through a representation review process. As signalled in the previous debate on this bill, stage two of this process will look for an enduring solution in relation to the creation of Māori wards and constituencies that is more in line with provisions that apply to other wards and constituencies, and that will apply to elections beyond 2022.

Now, the member doth protest too much, because time and time again he claims that this bill is creating an anomaly. It isn’t. There have been several articles that have been written by lawyers to say that the legislative fix to remove a discriminatory poll provision is quite simple. But what that member would have this House, and whoever is listening to this debate, believe is that by perpetuating a discriminatory provision in law somehow that creates greater equality for Māori in terms of getting representation around the council table. That is wrong; I disagree. That’s why we’re progressing with this particular change. I do value the importance of councils engaging with their community, and I also know that every three years, when citizens and ratepayers go to the voting booth to vote for those representatives that they believe will represent them and their communities, they are also voting for people who will represent the wider interests.

That standard will apply to every elected member, whether they are a part of the Māori ward or constituency, a general ward or constituency, and urban or rural ward or constituency, because that is New Zealand. That is the New Zealand who has advocated in support of this bill. That member might choose to make up the fact that this has been promoted solely by myself, but I point, time and time again—

💬 Hon Dr Nick Smith: I’m not claiming that!

Oh yes you are. There’s dog whistles going on everywhere.

💬 Hon Dr Nick Smith: Point of order, Madam Chair. The Speaker of the House specifically pulled up the Minister last week and said that was an unparliamentary phrase—

I withdraw. That member would have this House, and whoever’s listening to this debate, believe that a standard is being set in relation to removing a discriminatory poll that somehow creates an imbalance. Actually, it does not. I value local participation in decision making, and I value the way in which councils have advocated for this particular change. Twenty-one of them submitted—21 of those councils submitted. Now, 21 of those councils represent the majority view around their decision-making table that says “We have walked this path. We know how challenging it is, but we want to continue to walk forward into this space to ensure Māori participation can be gained around the table.” I do not agree with the member, with all of his contentions—and I just remind the committee, non-binding polls can be held in relation to any matter around the council decision table, including Māori wards and constituencies—binding polls—and the threshold that has already been proven to be discriminatory will be removed as a result of this particular bill, and that even though binding polls can be held in relation to general wards and constituencies it’s never been used—never, ever been used.

Thank you, Madam Chair. I’m very disappointed in the language used by the Minister there, saying that is a discriminatory poll. The fact is it gives everybody the vote, and if people in a community decide to vote one way, that is not discriminatory; that is the exercise of democracy. The Treaty of Waitangi, the whole purpose, is to give everybody a vote; everybody is treated equal. That is the purpose of this whole institution that we are in. That is the fundamental part of what was signed between the two parties to the Treaty. It was to make sure that every vote counted, that we had democracy, and that nobody could tell somebody else what to do—that the country, the elected people, as a group, actually decide the laws of this land, that they are not decided by some King or Queen in England; they’re decided by the people of New Zealand.

Now, how can that be discriminatory? That’s the fundamental rationale of this country. That is what we are based on, and the Minister says that having an open vote, where everybody has a chance to make their decision, and everybody has the ability to tick a box “yes” or “no”, is discriminatory! How can that be discriminatory? It is what we fundamentally believe in. The only discrimination is actually in this clause now, because it stops the ability of a council having, actually, a binding referendum on this issue. It can have a binding referendum on any issue it wants to, it can have an unbinding referendum on any issue, but it cannot have a binding referendum on Māori seats now. So that is the discriminatory provision—the actual provision we are seeing in front of us here today. There is nothing discriminatory in every individual, in every council having an individual vote and expressing their view. That is not discriminatory. That is called freedom. That is called the essence of this Parliament and this country. That is called the essence of the Treaty of Waitangi. So to take away that by putting a discriminatory bill into our political system now actually is the opposite of what this country stands for.

We may think that’s fine now, and we may think, “Oh, who cares in 50 years, 100 years’ time?” but the reality is New Zealand will change. If you think New Zealand hasn’t changed in the last hundred years, you’re dreaming, and it will change in the next hundred years, and the people in a hundred years’ time need to know that they have exactly the same rights as everybody else. To take that away from them, to make them a second-class citizen because their vote doesn’t count, they can have a referendum but it doesn’t count—the elected representatives are actually the ones whose vote counts. Under this rule, the elected 12 councillors in Hamilton, for example, are the only ones that count, because they’re the ones that decide if they’re going to have a referendum, and they decide if it’s binding or not. And they don’t even have to follow the results. So those are the only 12 people that actually decide if everybody in the community that I live in has a say, and that’s not what I’m here for. I’m not in this Parliament to do that. I’m here to represent every voice in that community, whether they’re National, Labour, Green, or whatever. And I want to make sure they’ve all got a chance to have their say.

We can fight around the politics of what we do in this room, and we can make different choices around what we believe is right or wrong to get to the end goals for New Zealand, but we never ever fundamentally take away the innocence and the love that comes from having your own vote. And we are doing that in this bill here today. We’re taking away the real heart of what it means to be a New Zealander and the real heart of what it actually means to have a vote. I say, I don’t know if I trust those 12 councillors and that mayor to get it right all the time—and I’m quite happy to say that to them, because that’s why we have elections. But I wish that every one of those voters in Hamilton is treated equally, and if they decide they want to have a referendum, and if they decide within that referendum that they want to vote against Māori seats, then that could have the potential of being binding, and I don’t see a problem with that at all.

Oh, Madam Chair, thank you very much. This is a very important clause, and the reason for that is, it seems to me, listening to the Hon Dr Nick Smith, it goes to the heart of what this bill is about, but more than that the heart of the double-speak from the Government on this bill.

I’ve been shocked, actually, when you go through the detail of this bill, to hear that double-talk. We’ve got Nanaia Mahuta in the contribution she made that I thought was fascinating. You know, her conversation the whole way through has been very soothing to the New Zealand public. It’s: “This is about consistency. Look we are just making this law consistent across the provisions. There’s nothing special here. We’re not really trying to do anything much on the Māori wards. It’s all about consistency.” That’s what she’s been saying, when in fact the opposite is true. The precise opposite of what she is saying is true.

There is the ability for a binding referendum on literally anything, the most trivial things that happen in local government, and not all of these things I’ll mention are trivial. I was just thinking there—you know, dog collar laws—dog collar laws. They can have a binding referendum on that. The Tauranga City Council, the Napier City Council, the Wairoa District Council, they could decide tomorrow to have a binding referendum of the people of their district on dog collars, on plastic bottles, rubbish, on the colour of the cycle lanes that they’re putting in place all around Tauranga, on all of those things, but there is one thing that is privileged. There is one thing that is privileged and that is Māori wards. There is now no ability, despite everything else being able to be by a binding referendum, to have a binding referendum on Māori wards.

I thought what Nanaia Mahuta said was quite sinister, actually, because what she got up and said was: “Well, yeah, but come on, Nick. You’re just”—I was going to say what she said, but let’s say “you’re whistling in the wind” is, I think, paraphrasing what she said—you’re whistling in the wind, because actually what the councils can do is they can have non-binding polls on this issue. Well, that’s either a very silly statement by the Minister or it’s an incredibly cynical one—an incredibly cynical one—because here’s what happens.

If Auckland City has a poll on this and 93 percent of ratepayers say they do not want Māori wards, there is nothing lawfully that that council can do about it. Because this law again, in another clause that’s relevant to this, stitches it up, screws the scrum—a phrase I think a former Chair said we weren’t allowed to put in a heading to this bill, despite the fact that that’s exactly what it does—so that you can only go one way. You can go in with a Māori ward but you can never get out. What were the “Hotel California” words? “You can check in any time you like, but you can never leave.” That’s what this bill does. It allows for binding for everything else. It privileges only one thing, Māori wards, and it also does the other thing, as I say, which is that you can go in but you can’t get out. There is no legal basis to move away from Māori wards.

So, as I say, Nanaia Mahuta is either being very silly or she’s being very cynical when she speaks of this clause and she says that the answer to it is that “Well, you can have a non-binding poll.” It will make no difference to anything. You’ll have no legal ability to do anything about it. That’s what you do.

You know, I think it was Rob Muldoon, who said: “A cock-up or conspiracy? Go with cock-up nine times out of 10.” I hate to say it—I heard the Hon Dr Nick Smith say it before; he thought it was the latter. I think, unfortunately, conspiracy’s not the word for it, but there’s a cynical game being played here by the New Zealand Labour Party, when it comes to this. This isn’t about choice, this isn’t about consistency. Actually, what they are doing through this bill—I was going to say “soft”, but it’s actually a relatively firm presumption for Māori wards, where what happens is there’s more and more pressure for Māori wards. Actually I would go so far as to say it’s a near quasi compulsory, because I tell you what. That’s what’s going to happen—that’s what’s going to happen. We saw it with the Mental Health Foundation the other day. Nanaia Mahuta is going to go around and if Tauranga City Council wants the funding, the mayor has to play nicely.

We know what “play nicely” means. It means Māori wards. So there’s a Nineteen Eighty-Four aspect to this, I think, a double-speak from Nanaia Mahuta, soothing words on one side, when the reality of the bill does precisely the opposite to what she’s saying. It’s a bit like Henry Ford. You can have any colour as long as it’s black. What this bill does and what this clause means in practice on the ground, if it is passed, is a situation where you can only have Māori wards. There is no ability through a binding referenda or any other legal mechanism to do otherwise. That’s the not so secret agenda here.

So I ask the Minister in the chair, and I appreciate Minister Mahuta has had a good innings in the chair—I ask the Minister in the chair: is that the real game here? Can she confirm that the only thing we’ve got here is a non-binding referendum? That’s the only situation where it will be non-binding in local government. Everything else, it can be binding. And more than that, actually, it’s a situation where through a combination of clauses, including this one, the practical ramification is you can only go one way. You can check in any time you want, but you can never leave. Is that what they are intending to do? Because it certainly seems—in fact, it’s certainly clear to me that that is actually what the bill does through this combination of provisions.

You know, it’s either silly or cynical to say otherwise from Nanaia Mahuta. I say with some reluctance that I don’t think she’s silly. I think actually what she said in this House on this bill, her assurances just before in the chair on this bill have a touch of Nineteen Eighty-Four to them, their double-speak. She’s trying to say one thing in code to parts of our Māori community and another thing to general New Zealanders, when the real effect of this provision on referendums, when it’s combined with other clauses in this bill, is a not so secret agenda which, effectively, gets us to compulsory Māori wards all over New Zealand.

Thank you very much, Madam Chair—just wanting to continue the discussion under clause 5, the section 9 amendment, “Holding of [a] referendum”. I think it’s worth just taking a moment to reflect on the wording of that. We’re talking about “The result of a referendum conducted as a consequence of a direction under this section”—meaning this section of the law as it stands at the moment. It’s worth just stopping to reflect: we’re talking about the result of a referendum. The result of a referendum is not a mere coin flip or some sort of game of chance; it is, of course, the reflection of the will of the people as expressed at that time in accordance with the law as it stands today. So that’s the significance and the background and the context when we then go to say, well, what’s the effect of that provision? And the answer, of course, is that a binding referendum—a referendum that would otherwise have been binding—is not to be binding.

So when my colleague the Hon Simon Bridges talks about an Orwellian element to this in terms of saying one thing and another being intended entirely, this is the Nineteen Eighty-Four aspect that we need to consider. There is literally a piece of law that is proposed for our statute book that says a binding referendum—a referendum that would otherwise be binding—cannot be. That goes to the point around the fact that you can have binding referenda on other subjects, but not this. The Minister in the chair, the Hon Priyanca Radhakrishnan, may have a comment on this; I hope she does. Are we saying that you can have a referendum on any subject other than in relation to Māori wards, or are we saying you can have a referendum on any subject whatsoever and it will be binding, except that according to new section 9(7), it won’t be binding? So I don’t understand, and it’s not clear to me, and I think, it’s, frankly, the legislative design as well as the Minister’s intent. Does the carve-out exist even before having a referendum that’s binding, or are we talking about a binding referendum that won’t be regarded as binding because of this new provision?

I do want to just also pick out, in terms of the language of this provision, the word “division”. The word “division” in this is, at face value, that the “matter or proposal relating to the division of any district or region into 1 or more Māori wards or Māori constituencies”—now, on the face value, “division”, of course, means that it’s divided. It’s almost physically cut up: obviously, not necessarily lines on a map, because we’re talking about people who are able to claim a particular ethnic origin. But I think what’s unfortunate in this is that actually another kind of division is implied and will be a consequence of this, which is, as others have spoken to on this side of the House, a division in that other sense of the phrase whereby New Zealanders will be divided by having different priorities. There will be, not only in relation to elections under the Māori wards or constituencies being contemplated here, but then in relation to competing priorities.

So it’s not just what happens on the polling day, or the two weeks of postal voting, as the case may be. What we’ll have is for the following three years a situation where there are specific, distinct interests that are not negotiated, necessarily, around the same table but instead a division—literally a division in that sense, as well. That’s really unfortunate, and I just hope that the Minister of Local Government knows what she is doing—or rather, in a way, I’d actually rather it not have been something that the Minister’s contemplated, and I’d rather, actually, hear quite honestly and frankly from her or her current representative that they hadn’t sort of thought about that aspect, and actually maybe they would reconsider it, because fearing the division—again, I emphasise that other meaning of the word from that used in the legislation—is very real, and I think potentially very sad for our country.

The other aspect that I wanted to raise about the particular wording of clause 5 is the phrase “local authority”. Of course, a “local authority” means an authority that operates not only in a local area, but over the people in that area. That’s significant, and it might seem obvious, but just to emphasise: it’s the people within that local jurisdiction who are governed by the territorial authority or the local authority. It’s the people, and so there must be a connection between the will of the people, as a whole, within that area—as distinct from merely saying, “Well, these are lines on a map; it’s an arbitrary matter. It’s merely conceptual, and there need not be a connection between the will of the people within that area.” Because somehow we’re divorcing the reality, or proposing to, as a House, over all, if we’re saying that there need not be a connection between what the people in a local authority’s jurisdiction get to have their say on at an election and what its representatives have determined. This is another aspect—[Time expired]

I have a very simple question for the Minister in the chair, the Hon Priyanca Radhakrishnan, on this clause. Why is Parliament prohibiting a council deciding to have a binding poll on a Māori ward when this clause allows a binding poll on any other issue in their community?

Thank you, Madam Chair. That was a brief call, and it was quick off the mark. The fundamental point of this bill that we’re debating here is that the Government does not like the answers given by the public in referendums so far, which has been in the majority to say, “No, we don’t want separate Māori wards.”, and the answer—which is, on the face of it, something that’s quite difficult to explain—the Minister’s answer has been “Oh, well, yes, but they can still have referendums; they won’t be binding.”, and that, of course, reassures nobody.

The second answer seems to be “But, of course, ultimately, it’s the decisions of the elected councillors and mayor.”, and the implication being that if the people don’t like the decisions that they’ve made, well, they can vote them out the next time round. The problem with that is that, well, yes, they could vote them out the next time round, but they can’t do anything about this decision which is made, which is to have Māori wards in that council. The point is that once they’re there, there’s no way to remove them, and so for the next hundred years—for example, if Auckland Council was to have Māori wards, they would have Māori wards for many, many decades to come. So it is a very long-term decision being made, and that is why most people, I think, most Kiwis, would say, given the long-term effects of this decision in the way that we arrange our constitutional matters, it is appropriate for the people living here right now to have a say, not just councillors who come and go and they’re elected on whether they favour cycle lanes or low rates or high rates and a whole range of issues, but for the broader community to make a judgment on that. That is why we firmly believe that this clause is wrong in removing the ability for the people of New Zealand to have a say on how they want to have these things organised.

The previous time I spoke, we had another member, Chlöe Swarbrick, accusing me of race-baiting by raising this issue and pointing out that there are people in New Zealand who don’t agree with the idea of having separate seats based on ethnicity. Now, she might disagree with that proposition, and a whole lot of people might disagree with that proposition, but in a free and open society, we should respect the different views of different people and not try and bully them, I suppose, with accusations of racism when they express those views. I find it highly ironic that she would be in the bullying category on this matter.

I mean, one of the issues that people rightly ask is if you have separate wards based on a particular group, all councillors—I was a city councillor in Auckland, and when you’re elected as a city councillor, you are there to represent all the people—all the people—particularly in your ward, if it’s a geographical area, whether they’re Māori, Pacific, Asian, European, everybody. You are there to represent everybody.

💬 Hon Aupito William Sio: But do you?

We do our best, and we’re not all perfect, Minister Sio. We all sometimes fall and don’t reach our hopes and aspirations in life, but we do our best, and we do our best to represent all New Zealanders. The concern that many people will have is that if you are elected only by one ethnic group in a particular ward, your focus will naturally be on that particular ethnic group, not on everybody else, and that’s the fundamental anxiety or concern that people have around these separate seats.

The Government might not like that and they might not agree with it, but we believe on this side of the House that it is a fair question for people to have the opportunity to express their opinion on, and the best way they can do that is with a referendum. So this bill, which removes that ability and says, from the Government to New Zealanders, “We don’t trust your judgment on this matter. We don’t agree with the decisions you’re making, and therefore we’re going to take away your ability to have those decisions and that judgment.”, is wrong, and on that basis we oppose it.

I want to again challenge the Minister, Priyanca Radhakrishnan, to address a serious issue that goes to the heart of our democracy, because a democracy is about electing representatives, as to this Parliament and to this council, and it also involves the use of referenda, and that’s what the heart of this section 9 in our Local Electoral Act covers.

And here’s the principle: where we are making decisions about how we are elected, actually, they should be the decisions that we must have referenda on. That is widely accepted in the international literature about good democracies. So, for instance, I strongly believe that if we want to change the electoral system of this Parliament, it should go to referenda. If we want to change to STV, if we want to move to a four-year term, that should not be for us in here to decide. That should be a decision for the electors, not the elected.

Now, when it comes to councils, I have actually the view that if the council’s going to make a decision about whether it has a library, or the council’s going to make a decision about whether it paints the office building red, or if the council’s going to make a decision about whether it does this big sewage upgrade or not, I’m of a view that that’s what you elect people to make decisions for. But when you’re making a decision to change the way in which you are elected, they are the decisions which should go back to referenda and to electors. And what makes this section so bizarre is it does exactly the opposite of what the literature says about how a good democracy works. What is says is you can have a referendum, and a binding one, over whether you paint the office red or not. You can have a referendum—a binding one—on whether you have a tree or not. You can have a binding referendum on whether you build the sewage scheme or not. The only thing that we are specifically excluding a council to be able to decide to have a binding referendum under this section is on the issue of whether you are going to divide your constituencies up on the ethnic lines of creating Māori wards.

And so I again ask the Minister to answer the simple question: why in section 9 do we empower every one of our 85 councils to be able to have a referendum on anything they wish—

💬 Christopher Luxon: Including general wards.

General wards—that’s right. I want to point out that my colleague—our spokesperson on local government, Chris Luxon—says that if a council wants to have a binding referendum on creating a general ward, it is perfectly entitled to do so. And that just further exposes the anomaly of this provision, which the Minister needs to address, and that is, why, in this clause, is the only thing—the only thing in the whole wide world that the council is specifically banned, prohibited, from having a poll on is the issue of whether they have a Māori ward? It is contrary to all the literature about what things are appropriate for referenda. The literature academically says, actually, it’s on the issues of how you are elected in which parliamentarians and councillors have a conflict of interest—they are the issues that you most should have a referendum on in a good democracy. So why does this clause do the opposite?

So, again, I challenge the Minister: please answer the question. It goes to the core of clause 5 in this bill. Why are we saying to councils that you can have a binding referendum on anything you like in your community? The only thing that we in the law are going to make illegal is a binding referendum on a Māori ward. I have never struck such a biased, unusual—almost sticks out like dogs’ legs—provision—

💬 Hon Members: Dogs’ legs?

No, I don’t think I’ll go there. I think, on the good advice of the Māori Party, I’m getting into terrible territory. But what I do say is this provision sticks out as incredibly odd. It is very unusual to say: councils, you can have a binding referendum on absolutely anything you like, except a question of a Māori ward. That is bad law, and that is why I simply challenge the Minister to please explain.

Thank you, Madam Chair. A couple of questions have been raised directly to the Minister in the chair, and I thought I would take the opportunity to respond to them. I understand, though, that the Hon Dr Nick Smith—the point that you raised at the end of your contribution has been addressed by the Minister in charge—

💬 Hon Dr Nick Smith: No, it hasn’t.

I understand it has, and I understand that there is actually room for better alignment between the Māori ward and general ward establishment processes and that it will be considered as part of the stage two work on the Māori wards and constituencies.

However, I’ll go back very quickly to the point that has been made by members on that side of the Chamber around questions about why this mechanism is in the bill for the removal of mechanisms for binding polls to be held and for whether Māori wards or Māori constituencies will be established. The whole point is made quite clearly in the explanatory note of the bill. I’ll point members to the fact that it’s “an almost insurmountable barrier to improving Māori representation in local government”, and that is my first point in that regard.

The second, though, is incredibly telling, which is that there is no equivalent provision for elector-demanded polls in the process for creating general wards and general constituencies. That’s why the Minister in the chair specifically said—

💬 Hon Dr Nick Smith: Point of order, Madam Chairperson. You’ve been quite strict with Opposition members that we need to talk to the specific clause. Now, the specific clause that we’re debating is an amendment to section 9. Section 9 allows councils to have very broad referenda—

CHAIRPERSON (Hon Jacqui Dean): Thank you—thank you.

💬 Hon Dr Nick Smith: —and the comment that the Minister—

CHAIRPERSON (Hon Jacqui Dean): Thank you. The member will resume his seat. Thank you very much. I’ll ask the Minister in the chair, if she wishes to resume her contribution, to confine her comments to the clause in question.

Yep, I’ve been and done, thanks.

Thank you.

Thank you, Madam Chair. Interesting that the Minister didn’t answer my colleague’s question at all. When we come to this bill here today, there’s another part of it we need to look at, as well, and that is, effectively, the councils have full discretion over the number of Māori seats or having Māori seats in a council. But we don’t have any indication of how many seats may be appropriate. We don’t have any indication of how many voters in each of those seats may be appropriate. And that raises some really big natural justice issues around the value of every vote, because the fundamental premise that we base our democracy on is that every vote is equal.

The fact that there could be a council that determines it wants to have four Māori wards—because it may have a very big geographical distribution—and find that it only needs 5,000 voters in each of those four Māori wards, where it has eight general wards with 20,000 voters in each of those general wards, would then create a situation of immense power for those 5,000 voters because they then become a third of that council for 20,000 voters, which is only the equivalent of one of the other eight wards that would be on the general scale. So we have no indication of how far this can go. It’s not premised on the idea that there will be one vote, one person, and each seat will have the same number of votes in it. There’s nowhere in the legislation that says that. There’s nowhere in the councils that they’re required to do that. So we’re taking away the theory of each having an equal vote.

Now, I was very interested that we’ve got members of this Parliament here that represent a whole lot of ethnicities, and my good friend over there from Hamilton West is an example, and congratulations to him on being the first Indian elected as an electorate MP in New Zealand—just before Priya, of course. But the nature of that is the changing face of New Zealand. In 100 years’ time when we come back to this place, it’ll be completely different. Someone like my good friend will just be a leader from many years back. He will be represented by 20 or 30 or 40 electorate MPs in this House of Indian ethnicity. And that’s the future of New Zealand. But we’re saying that there’s only going to be one part of our community that potentially has a special voting right.

💬 Debbie Ngarewa-Packer: Tangata whenua.

And the Māori Party will say tangata whenua, that’s their answer, and fair enough, that’s their answer. But that’s not what New Zealand is based on. New Zealand is based on the Treaty of Waitangi, and the Treaty of Waitangi gives every person a vote, because it takes away—

💬 Kieran McAnulty: They’re laughing at you. The gallery is laughing at you.

No, they’re not laughing. The public are laughing at you, because they understand that they all have one vote, and each vote counts. And to take that away through this legislation and put that power in the councillors is effectively what we are doing here.

💬 Louisa Wall: That they voted for.

No, but if the councillors actually went out there and promoted this as part of their campaigns, that would be great, but they don’t. I can go to Hamilton and I can show you now, none of those councillors—well, some of the councillors may have, but the mayors certainly don’t go out there and promote that. And then they become mayors and it becomes a very important part of their process of what they want to see happen to their city. It is something that we do not see coming forward in the early parts of the voting process. We see it when people are in that position, and whatever reason it is that those mayors and councillors then determine that it’s such an important thing that they have to then promote is for them to explain.

But the fundamental basis of this legislation is that we do not have any understanding of its ramifications and practicality. We don’t understand how many seats could actually be involved and what the number of voters in each seat was, and that will deride on the total democracy that we see in this country at the moment.

Thank you, Madam Chair.

💬 Hon Aupito William Sio: This is the real Opposition now!

Ha, ha! Why, thank you very much! I would like to actually speak on this bill in regard to the referendum on clause 5 and how it’s being removed—the ability for the councils to hold a referendum but then not take any notice of those results. And I think that that in itself is wrong. Regardless of whether we’re talking about Māori wards, or anything else, to actually say we’re going to have a referendum and then remove the ability to actually take notice of those results is removing a part of our democratic process. And I don’t agree with that.

I do believe that in our local authorities, our local constituencies, they should be able to have a say, have a view, and be heard. I stand here as an elected representative from the ACT Party, and a Māori at that. I did not need to have special treatment in order to get here, by denying others the ability to have a vote on whether or not I got here. That is what my issue is with the referendums in clause 5.

I implore this Government to answer the reason why we have had to rush this and not allow the democratic process to go through—to not allow people the time to submit and to be heard and to go through the select committee process, because by denying this time to the people of New Zealand, we’re denying them their voice.

And I don’t agree with the process. I think that this issue needed to be heard, but I don’t think it needed to go through under urgency. I think this issue should be heard, but I don’t think that we have to push it through so quickly that we deny others the chance to be heard as well.

So on the basis of what we’re doing with the referendum, I think we deny a lot of New Zealanders the right to actually have a say in the way our democratic process works, and for that, I have a real issue with clause 5. Thank you.

Madam Chair, thank you.

💬 Hon Member: Watch out, David Seymour.

All kinds of warnings for people to watch out all over the Chamber. I’m just—[Interruption] I’m just very safety conscious, that’s right. If this were health and safety legislation, those contributions would be highly relevant.

Moving on, though, all that I’m looking out for is the detail within clause 5, where we’re talking about a referendum to be disregarded, not to be binding after all. I just want to place that again in context, because, again, it’s really important to understand what’s in the bill currently and would effectively be displaced, in terms of what the Government is putting forward. And the proposal that we’ve got here is that the will of one council can actually be greater than the will of another. In this place we often talk about Parliament being sovereign and that’s a very important concept in the sense that a democracy must respond to the needs to the people, and so one Parliament cannot bind another. We cannot say, for example, in this House, in this term, that not only a thing shall be but also that a subsequent Parliament cannot undo it, because it might be at the following election that the will of the people is to elect other MPs, more National MPs, perhaps for a start, as a friendly pointer for anyone watching. But the will of the people, however it’s applied and whatever the result might be, should be respected.

At the last election colleagues on the other side of the House returned in greater numbers, and we are fewer. So be it—it is the will of the people, of course. It would have been absurd if the Parliament that had its term between 2017 and 2020 were able to bind the hands of this Parliament so that the duly elected people as at the 2020 election couldn’t execute their will representing the people—and the previous term, and so on, and so forth. So in the context of this particular provision, what we’re looking at is saying that the councillors who happen to have been elected at the last local government election should be able to say that certain things will be in relation to Māori wards and not be displaced in a subsequent referendum.

So, in other words, the people who expressed their will at one moment in time cannot have that overturned or updated or amended by another group of people, another set of voters, who might have been younger and therefore not eligible to have voted in the last council elections. They might be newly moved into the area from another region of New Zealand. They might have come to this place from overseas. There won’t be so much of that, of course, at the moment because of the ravages of COVID on our immigration system, but there are all kinds of reasons that a different population in a different area forms a different electorate, and so it is from time to time that if democracy is to be real not only between people in a moment in time but relevant across time, across three-year terms, then it has to be that there is a mechanism for changing the will, or rather, changing the mechanics of our voting system according to the will of the people changing as we go forward. That’s the point that the Hon Simon Bridges was making regarding “Hotel California” in terms of checking out but never leaving—I think it’s checking in but never leaving; I actually meant to look that up. My knowledge of the Eagles’ lyrics is not as strong as my very close examination of this legislation, so please forgive me. Perhaps the Minister might be able to answer that if nothing else.

That was my first point. The other point was in relation a referendum being a mechanism by which the will of the people can be determined. Well, I’ve got mixed feelings on referenda, as I know others in the House do. Sometimes I like the result, sometimes I don’t, but I think that as an elected representative of the people, I along with my 119 colleagues in this place, also duly elected, we must honour the result of a referendum that is or should be binding. And the point about a referendum—of course, the problematic bit—is that sometimes they’re not appropriate mechanisms. As the Hon Dr Nick Smith has said, however, they are appropriate when it is about determining the rules of the game by which the participants, the representatives, must play. Otherwise there’s a conflict of interest. Otherwise we’re our own judge in our own matter. So it’s not appropriate for councillors to be deciding over and above, or on top of—riding roughshod over, if I were to adopt a phrase that the Hon Dr Nick Smith has either used or is probably about to use—the will of the people, and that’s a very serious matter for us, as a constitutional matter, as a democratic matter, and so the mandate for this is very low—indeed, non-existent.

I will try to respond to some of the questions that have been asked in the House. Firstly, I’m unsure, with regards to Chris Penk’s comments, whether he was speaking in favour or against the bill! I was a little bit confused with regards to where you were going, although I do have a lot of respect for your general ability in the committee stages.

Just in regard to the ACT MP’s comments about special provisions to ensure representation, I think that we need to remind ourselves that, actually, our MMP system is set up around that. Prior to having MMP, we had a system whereby you had to be elected to a geographical seat, and it did impinge on our ability to get the diverse representation in this House that we needed. When we introduced MMP, that provided the opportunity to actually be able to have the diversity of representation that we need to be a truly democratic Parliament. So that is an example of where special provisions were put in place.

There were issues raised by the honourable member David Bennett. He asked about the number of Māori councillor positions, and it is determined in proportion to the total number of councillor positions and the proportion of electors on the Māori electoral roll. That is set out in Schedule 1A of the principal Act and is not amended by the bill.

I feel that the rest of the comments really just traverse bases that we have already been through. The last other question was whether the Eagles song “Hotel California” is “check out but never leave” or “check in but never leave”—it is “check out but never leave.”

Madam Chair, listen, thank you so much for letting me take this call. I just want to reinforce the things that my colleagues have talked about over the last hour and a half, I think it has been. Really, what we’re wrestling with here is, again, a consequence of this poor process, because, fundamentally, we’re discussing clause 5, this amendment to section 9. And, really, this has been a problem with this bill in general, that because we’ve had insufficient time, there hasn’t been any serious entertainment of any amendments whatsoever to this bill, we fundamentally haven’t thought through how it interacts with other bits of legislation that exist—and that can be the Local Government Act, it could be the Local Electoral Act, it can even be the Auckland Council super-council Act that was created, as well. There are a whole bunch of implications where this legislation is clunky in terms of how it fits with everything else. So I think there is a very poor process that’s being used, and, as a result, we’re really struggling with the detail of how this thing actually gets implemented and how it interacts with other bits of legislation.

If I can go back, the real thing we’re trying to discuss here is that we’re arguing that we want alignment with general wards. It’s really clearly stated on page 1 of the bill, under the explanatory note, where it says, “The policy intention of the Bill is to align the treatment of Māori wards and Māori constituencies with the treatment of general wards and general constituencies”. Now, we’ve been arguing that it hasn’t actually done that in this legislation, but that’s the intention that the Minister has put in here.

By the time you get to page 2 of this bill—and we’re discussing clause 5 and thinking about section 9 and amending section 9—there really are fundamentally three challenges with it. The first is this notion that a council or a regional council can have a binding referendum on absolutely anything that it chooses to have it on. We may not like that, but things like the colour of the town hall; whether you’re going to build a library or not; whether you build a swimming pool or not; whether you form a community board, for example; whether you actually have a unitary plan or a new town plan that you want to get the voice of your residents around—Simon Bridges talked about dog collars. But the reality is that there is a whole bunch of things—on anything—a council can have a binding referendum, and including a general ward. That is a preclusion here in this legislation that we are saying the one thing that a council can’t have a binding referendum around is a Māori ward. The principle of that is very simple. It is the fact that the elector, not the elected, is actually getting to make these decisions. So that’s the first point: that, fundamentally, a binding referendum is possible on everything except a Māori ward, and that’s because we haven’t had the time to think through how all those interactions actually come together.

The second point I’d say is that the Minister then went on to say, “Well, don’t worry about that, that’s OK because we’ve actually got a non-binding referendum that can take place.” And you have to sort of say, “What’s the point?” What’s the point of a council running a non-binding referendum around Māori wards and actually having all those people agitated for or against and actually nothing happens at the end of it? It undermines the power and the influence and the trust in the council.

If you just think about it, on Māori wards, imagine if Māori wards had been a non-binding referendum from when the first votes on Māori wards started happening back in May 2003. So you would have had 66 percent of people in Ōpōtiki vote against it; Papakura, we had 83 percent vote in 2004; Taranaki, 88 percent against; Whakatāne, 70 percent against; Waikato,80 percent against; Nelson City, 79 percent of the residents there voted in 2012 against this; Hauraki, it was 80 percent; Far North District Council, 68 percent; New Plymouth District, 83 percent voted against it—these are local residents voting against the bill—Western Bay of Plenty District, 78 percent; Whakatāne, 55 percent; Kaikōura, 80 percent; Palmerston North, 69; and Manawatū, 77. So imagine if all of those referendum from 2003 to 2018 had been non-binding. What’s the consequence of that? We talked about wanting to take people with us, to have the courage to use our political capital to win arguments, to take people with us on electoral law reform of constitutional matters. What happens with all that angst, anger, and anxiety that sits there with that sort of division being created?

The third thing is that once you’ve actually created the Māori poll, the answer from the Minister has been: “Well, if you don’t like your mayor or your councillors, just vote them out.” But once the ward has been created, there is no way to revoke the ward, and as a consequence that doesn’t exist. You can revoke a general ward if you wish, but you can’t revoke a Māori ward once it’s been created.

So I think there are major issues with this clause. The major issues are that we can get binding referendum on everything else except the creation of Māori wards. You can have a non-binding referendum, but what’s the point? And the third thing is, really, why can’t you revoke a Māori ward like you can for a general ward to get that alignment that we’ve been talking about and we want to see in this bill? Thank you.

We’ve heard a number of comments from Ministers, but they are yet to address the repetitive question that is required in the committee stages. My hope, Madam Chair, with the change in the Standing Orders of less standard five-minute speeches and more questions is that the Minister would provide an answer. And I’ll just repeat it, because it is fundamental to this clause: why is the Government saying that councils can have a binding referendum on any issue they like, except the establishment of Māori wards?

Now, as my colleague Chris Luxon has said, the explanatory note of the bill says that we are aligning general wards with Māori wards. So if that’s the case, why doesn’t clause 5 say you can’t have a binding poll on general wards? If alignment was it—and I don’t necessarily think that’s a valid policy, but let’s take the Government at their words that that’s their intent—why does clause 5 not prohibit a binding poll on general wards? Is there anyone of the Labour members in the Chamber that might answer that question? Can the Minister in the chair answer the question as to if you’re going to specifically prohibit our 84 councils being able to have a poll on a Māori ward, why would you not prohibit them having a poll on a general ward?

Would the chair of the select committee care to provide an answer to that question. Can any member in the Parliament, before we pass this bill under urgency—significant law, electoral law, with constitutional implications, rammed through Parliament under urgency, one day for public submission, six days for the select committee process when it’s normally six months—please give me a rationale for this clause, that says you’re allowed to have polls on anything except Māori wards? The silence is deafening. Can the Minister in the chair even give me a little hint as to the public policy rationale for this?

Let’s be clear: the Government’s saying a council can have a poll on whether your office is red or blue, you can have a poll on whether you’re going to keep a historic tree, you can have a poll as to whether you’re going to put orange lines down main street, you can have a poll on whether you’re going to change the name of your council, you can have a poll on whether you have a community board, you can have a poll on any policy, any activity, absolutely anything, but you must not—it’s a breach of the law, you’ll be put in jail—have a poll on whether you have a Māori ward.

Now, I’ve never seen law that’s so odd. It is really bizarre. And it’s even more bizarre when the Government says, “Oh, this is just about aligning the law between general wards and Māori wards.” Well, let’s be absolutely clear. If a council wants to create a ward—let’s say here in Wellington; let’s say it wants to create a ward for the people of Karori—it can do so; it can have a binding poll.

💬 Louisa Wall: It doesn’t need to.

Well, the member opposite says they don’t need to, but that’s not what this clause is about, and I would love that member to answer—can the member please answer me this very simple question; take a call, because nobody from the Government can answer this simple question: why is the only issue that a council is specifically prohibited from having a binding poll on the issue of whether they had a Māori ward? Why are they being allowed to have a poll on absolutely anything they like, but they must not, cannot, will not, have a poll on whether they have a Māori ward? Can somebody, before we make this change to our electoral law, give some rationale as to why we would only specifically prohibit a poll on that issue?

I think this is devious, I think the Government is being less than upfront with its agenda. It is screwing the scrum in favour of Māori polls. That is so transparent in this clause, and they should be upfront about doing that, and particularly upfront when it is a matter of constitutional and electoral law.

Thank you very much, Mr Chair—a good choice, if I may say.

💬 Simon O’Connor: Point of order!

My colleagues don’t agree. The clause that we’re talking about, clause 6, which, of course, will amend section 19Z—for Zulu—within the Act, has a couple of interesting points behind it, and one has been touched upon in relation to a different provision, but I just want to flesh out the idea of a mandate. So the idea that a “Territorial authority or regional council may resolve to establish Māori wards or Māori constituencies”, on the face of it, does at least provide an element of choice for councils, which might also be known as territorial authorities in the legislation. Now, that might indicate a level of choice for those elected representatives that we might say is positive, but the implication, of course, that they may do it is of course that they may also not do it. They may choose not to. So the voters at an election do not have certainty about whether this will be an issue that comes up for debate, discussion, and, indeed, decision at the council in the following three years, and that’s problematic in relation to the concept of a democratic mandate.

I’ll just take a step back, if I may, and comment on that point that we’ve made before, which is that councillors who currently sit around the council chambers across this fair and pleasant land, including those in Auckland Council representing the wonderful Kaipara ki Mahurangi district—

💬 Simon O’Connor: Great MP.

That’s right—the councillors are not bad; the local MP is even better. But we’ve got this problematic concept that those who are currently there are making decisions on the basis of a mandate that was not gained because they did not necessarily speak to these matters at the election that was held in 2019. But it’s also true that if a decision were made in the following term, that which commences, presumably, in 2022, if my maths is correct—and I’m only adding three years at a time; I hope that is the case. For those in the subsequent term too, it might be that they are called upon to make a decision, but it may or may not be the case that they are, and therefore they may or may not be asked by constituents what their position may or may not be on the matter. So we may or may not have a situation where those who are standing for elected office to make a decision on a particular point have or have not, in fact, expressed a view on how they will vote in relation to it.

It may also be the case, but it may also not be the case, that the mandate is gained accordingly whether to vote for or against Māori wards or constituencies within the council, and if that mandate is not followed, then the usual recourse that an elector has, of course—and it applies to this place too—is that at the following election, they can turf them out. That’s the sword of Damocles that, rightly, hangs over all of us in this House and, indeed, in relation to councils as well.

Of course, democracy is not a perfect thing, because human beings are not perfect. The system is not foolproof, and of course, among other things, it might be that circumstances arise during a three-year term that cannot be contemplated. But matters that can be contemplated—for example, and specifically in relation to Māori wards and constituencies, we’ve got a situation where Parliament is anticipating that something may arise, but it’s not saying that it must arise, and so it would be open for any candidate for council, in relation to Auckland Council or, indeed, across the country, to respond in her or his campaign that they do not have an opinion on the question of whether a Māori ward or constituency should be created, because the issue may not come up. They might further say that they would not advocate for such a position to come up, or that they would actively advocate against such a discussion coming up, because, of course, the agenda as set by the council is itself a political matter, and that’s as it should be.

But we’ve got this uncertainty by the fact that a regional council or territorial authority may make such resolution. At least if we were to seek to resolve the matter once and for all, albeit in a way that’s problematic for reasons I’ve already described, then at least the Government now could be straightforward and say that this question is to be determined in the next term of local government in respect of all councils, and then electors at the next election would know that this is something that if it’s important to them, they can ask their candidates seeking their vote, know their position, and at least gain some sort of democratic mandate in that manner.

Thank you, Mr Chair. I’m pleased to take a call as we look at clause 6, and I’m going to particularly focus on clause 6(2), which is talking about the replacing of—as my colleague Chris Penk had mentioned, with the great NATO alphabetic code there—“19 Zulu (4)”. There’s a couple of points I want to make to the Minister. It is fundamentally—

CHAIRPERSON (Adrian Rurawhe): I’m sorry to interrupt the member. Which—

Are we on clause 5?

CHAIRPERSON (Adrian Rurawhe): We’re on clause 5, so—

I was erroneously—but that’s easy enough. I can switch to clause 5 just like that. The whole point of holding a referendum, or, in fact, referenda, is ultimately to try to understand what the people think, and one of the most fundamental policies, I would have thought, and I’ll put it to the Minister, is that any elected official—it doesn’t matter if it’s a board of trustees, on a council, or in Parliament, but perhaps I should do the hierarchy the other way around—is to be responsible to the people. I think there’s a disingenuousness in the debates that have been had, or discussions, and lack thereof in that actually simply allowing someone to be elected and then to continue as they want is not sufficient in these cases, and why it’s not sufficient is we’re removing a polling option that has become established within New Zealand’s democracy.

So I suppose, as other colleagues are doing, I am encouraging the Minister to explain to this committee why a particular polling option—in this case, a referendum around the establishment of seats—is being withdrawn. I can understand to a point the logic of saying a person has been elected, or persons have been elected. They’re able to do what they need to do or are willing to do over three, four, or five years, or whatever their term is. But when one thinks about this logically, I would suggest that that, ultimately, can become an undemocratic approach when the removal of a chance to go back to the electorate or the constituency or the ward to discuss a matter is being deliberately withdrawn. So I suppose the crux of my argument at the moment is that the process of referendum, or referenda—if I use the right declension—has been established, and now it is being removed.

I suppose another part of what I’m trying to put across to the Minister and would like to have her address is this sort of—well, already the resentments are being built up. There are those that want this and those that don’t. Are we actually, through the removal of referenda here in clause 5, creating a rod for New Zealand’s democratic structures and the harmony of our people, because no matter what happens whenever this bill is passed or otherwise, there are going to be resentments. The funny thing about resentments, if we’ve learnt anything about this history of this country, is (a) they don’t go away and (b) they become costly. So I do wonder if she has any thoughts there.

Actually, I might just leave it there for now. I would like the Minister to try and respond to those, but the fundamental points are: does she understand—again, it’s only an opinion on my part—that the provision of referenda has become established, and we are now looking to remove an element of a democratic process; and why? Does she also understand, potentially, the resentment which this will build? As I say, there will be those that celebrate this, and that’s fine—we remain a democracy. But there will be those who are upset.

Then, I suppose, the third point—which is where I started with the first point, just to confuse things—is: are we really saying that once a person is elected, they can basically do whatever they want with the hope that they’ll only simply be held to account at the end? I think the answer has to be no. Those of us who, particularly, represent seats but all of us as members of Parliament know that we are elected, but we are constantly going out to the people and engaging to understand where they sit. Is there ultimately a difference between that—if you will—informal conversation, through to the formal, which is the referenda?

So here in clause 5 the removal of a referendum is for me very concerning. I’ll return to a couple of the other points later, if the Minister would like to address those questions.

on behalf of the Minister of Local Government: I move, That the committee report progress to seek leave for oral questions and to sit again presently.

Motion agreed to.

House resumed.

Mr Speaker, the committee has considered the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill. The committee has resolved to report progress and to continue presently.

The question is, That the report be agreed to.

Motion agreed to.

Report adopted.