Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill

Members, the committee is resumed on the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill. When we last were in committee, we were debating clause 5. Therefore, the question is that clause 5 stand part.

Thank you, Mr Chair. Actually, for a moment there, I thought it was lunchtime, but the people who have been around longer than me will just say that’s a very naive assumption.

But look, I would like to return to clause 5, and I’d have to say I am pleased to see the Minister of Local Government returning to the chair as presiding Minister on this, because we have now had quite an extended period of time where a number of my colleagues have put the question directly within 15 seconds and have resumed their seats, and, more extensively, over five- and 10-minute calls and each time the question could not have been clearer of the Minister in the chair: on what possible justification does this legislation suggest that councils can poll in a binding manner their constituents on any issue at all, except for the provision of a Māori ward?

Now, she has stood here previously and talked in her own words around the discriminatory effect of the current legislation. But it appears from our side that there is no defence to the argument that this bill is replacing, in her words, one perception of discrimination with a clear discrimination in what is proposed here. The question is very, very simple: why is it that only the provision of a Māori ward is now taken off the table for a council to do a binding poll?

Now, when we were in select committee, we reflected on this policy question and raised the question as to whether alternative models had been considered, and my colleague the Hon Dr Nick Smith traversed some of those in his earlier contribution. Why is it that perhaps we could not have total consistency and, in fact, perhaps either binding polls allowed or non-binding polls for matters of community feedback and engagement? Why is there just this single discrepancy that is now not allowed? What was the policy position that precluded consistency being applied in all matters of polling with the public, be they binding or not binding? None of the committee could answer, ourselves, why that policy position was, and we have put that question explicitly to the Minister in the chair for the last half an hour and have been met with silence. Well, with respect, when we’re in the committee of the whole House and we have had a process that we have had to endure as a Parliament and a country with respect to this bill, the silence is completely unacceptable.

I do have confidence, though, that now we have the Minister of Local Government in the chair—as she has done consistently when she has sat in the chair—we will get an answer, and I look forward to hearing it. Thank you.

The member might care to check my previous response to this very issue, but to reiterate the point: a non-binding poll can be applied to a number of things, including the provision for Māori wards or constituencies, or general wards or constituencies for that matter. In terms of a binding poll, the very reason why we’re having this conversation is because a citizens initiated poll of 5 percent could overturn a resolution of the council.

💬 Hon Dr Nick Smith: That’s not this clause. That’s not relevant to this clause.

The member would like to hear my answer or not?

💬 Hon Dr Nick Smith: I’d like you to answer the question that we’ve asked repeatedly.

I’m explaining the answer. So, as I said, what we are seeking to do is to remove the provision for a citizens initiated poll.

Now, within that context, yes, a binding poll did exist and could apply to a general ward or constituency, but had never ever been used. For members on that side of the House to get up and say, therefore, councils will all of a sudden use a binding poll to decide whether or not general wards or constituencies could be created, I think, is not substantiated by the lack of utilisation of that clause previously. So I think it’s a bit of an academic presentation of ideas rather than fact. But if I were to, I guess, cast out the consideration in stage two about getting congruence and where this issue might take us to, it is entirely a matter that could be considered in stage two of the longer-term, enduring solution to the creation of Māori wards and constituencies.

I want to respond to the Minister’s point. What she’s saying is “Yeah, look, this is a bit of a dog’s breakfast. I accept that. But it’s just a quick fix, and then further down the track, we’re going to do a proper review and rewrite the law in this regard.”, and can I tell you why that does not stack up: that does not stack up because her very Government voted down National’s amendments that would have provided an expiry clause on these quite arbitrary and unfair provisions that are included in clause 5 of this bill.

If we look at the way in which the Government dealt with the party pills issue, they included an expiry clause, and the Parliament could accept “Hey, look, it’s a bit of a rough fix. But it’s short term, and then we’re going to do a proper job and come in with some decent law.” Now, despite the Minister’s statements repeatedly saying that this is a short-term fix and this is temporary, it’s not. This is permanent law. This is the law of the land for ever, as at such time as it is repealed. So the Minister can’t get away with an explanation that says, “Well, yeah, it might be theoretical, it might be dodgy, and it might not make sense, but it’s just what I’ve got to do—quick fix.” when it is permanent law.

My second point is that the Minister has still not answered the fundamental democratic question, and it’s this: if there are any issues on which there should be referendum, it is where elected bodies have a vested interest. This Parliament has a vested interest in how we’re elected. We don’t get to make the decision and we should not make the decision as to whether we’re elected for three or four years. That should go to referendum. We shouldn’t make the decision as to whether we’re elected by MMP or whether we’re elected by first past the post. We have a vested interest. That should be with voters.

When it comes to councils, I actually have a view that on most of their decisions, we empower them to make a decision as to whether the council offices are painted blue or red, whether they have a sewerage scheme, or whether they have a library, but they have a vested interest when it comes to the decisions about how those very representatives are elected. So, if there’s any argument about where there should be referendum under section 9 of the Local Electoral Act, it is on issues that affect the way in which those members are elected. That is why it’s so odd, and I will say it: it sticks out like dog’s balls that this is a really weird provision.

💬 Hon Nanaia Mahuta: Point of order. I think if you can’t refer to dog’s whistle, you shouldn’t be able to refer to dog’s balls or dog’s laws.

I’m not sure what the point of order is.

CHAIRPERSON (Adrian Rurawhe): No, I’ll rule on the point of order, thank you. It’s whether or not the committee has taken offence to such terminology, and my thinking right now is that whilst the point has been made, I will not rule against the Hon Dr Nick Smith.

Let me make the point about why that phrase is appropriate, because what section 9 of the Act says—and I’ll read it. It says that a council can have a binding referendum on any service that may be provided or not provided by a council. They can have a referendum on any issue of policy or intended policy. They can have a binding referendum on any issue of current or future activities. They can have a binding referendum on any issue that’s relevant to the future wellbeing of a local government area. They can have a poll on whether they have a community board. They can have a poll on whether they have a separate ward in every part of their community. The only thing that we are prohibiting them from having a poll on is the issue of Māori wards and Māori constituencies, and that is really weird. That is really unusual.

I’ve been a lawmaker for 30 years and I’ve never seen where councils can do anything they like, but it’s just this little tiny thing over here that they say they cannot, must not, never do, and that is why members opposite say this is a stitch-up. This is a biased law. This is not doing what the Minister said it was, and that was aligning—the whole case, the whole political rhetoric is “Don’t worry, all we’re doing with this bill is just making it the same for general wards and Māori wards.” It is not. This provision—this section—is specifically making a very narrow, a very obnoxious clause that says we trust councils and we trust communities on all sorts of things, and this is the only thing on which we are going to specifically object.

The Minister in the chair, the Hon Nanaia Mahuta, was a member of the Government that introduced the power of general competence. The whole argument about that is that we should trust councils to be able to make such decisions, including such decisions on where they have referendum.

This new clause 5 that specifically prohibits and says the only thing councils can’t have a referendum on is biased and wrong.

Tēnā koe, Mr Chair. Tēnā koutou katoa. In preparing for this debate, I actually got the library to do some work, and they’ve provided me with a table of the 74 territorial authorities and regional authorities in New Zealand. It’s quite interesting reading because, obviously, only two of them have Māori wards or Māori constituencies, and I will ask for a clarification from the Minister soon.

But the other assessment that I did was based on the survey that the Human Rights Commission did, where they identified that of the 74 territorial and regional authorities, 63, or 85 percent, had actually considered establishing Māori wards or Māori constituencies. Now, of those 63, as we have heard throughout this debate, 24 went to a poll, and of those 24, only Waikato Regional Council and Wairoa District Council were successful—so that’s 3 percent of the councils that had expressed a desire to establish Māori wards and constituencies.

The reason I bring it up is because for those that chose to—the 22 where the poll resulted in a decision not to have a Māori ward—that actually resulted in the discussion about having Māori wards or Māori constituencies being off the table for six years. The clarification I seek from the Minister is that this bill now means that Māori wards and Māori constituencies are never off the table for territorial and regional authorities.

This, essentially, will provide the leaders within our territorial and regional authorities, our mayors, and our councillors with the ability to make a determination about whether they want Māori wards or Māori constituencies. From my reading of the process, they have by 8 September 2021 in the development of their review proposals, which actually is about the total number of councillors they will have; the wards, whether they’re at large or constituencies, or a mix; and, now, or whether they will have Māori wards or constituencies. It also will look at boundaries and constituencies’ names, and that then is given to the Local Government Commission. There’s a period of time for them to receive any appeals, and that will also enable the Local Government Commission—based on what the councils decide to do—to make a determination by 15 January 2022 about whether or not there will be a Māori ward or a Māori constituency in the local authority elections in 2022.

So I really would like the Minister to, I guess, outline what this bill actually does, which, again, I want to emphasise means that Māori wards and Māori constituencies are never off the table. It doesn’t mean that they’re going to be automatic. It doesn’t mean that they may be used. What this does is provide an ability for our local leaders, in consultation with their communities, to decide whether a Māori ward or a Māori constituency is something that they would like to give effect to section 4 of the Local Government Act, which is about the Treaty of Waitangi, and section 81, which is about how they will engage with tangata whenua, with hapū and iwi, in their respective communities. Thank you.

Thank you, Mr Chair. Thank you to the last speaker, Louisa Wall. For me, it actually illustrates at least two points, one of disagreement and one of agreement, as we look at clause 5. On the disagreement first: fundamentally, it’s probably imputing—which I probably shouldn’t on the member’s view—the idea that democracy is good except if we don’t get the result we don’t like, which is possibly what comes out of the library research that referenda are held, polls are held, and the response is not what some want. I think it’s a difficult area for the—well, not difficult. It’s not the right area for any Parliament or otherwise to be in to suggest, “Yeah, we like democracy, but we only want the results that we want.”, and we’ve seen that around some referenda of late, well beyond the Māori seats.

The thing I actually would potentially agree with is—and it may put me at odds with some of my colleagues—I’d actually have no problem of getting rid of the element around the two triennial general elections and to say, look, if councils want to keep going back to the public to ask, that’s actually for me, personally, not really a problem. But the problem that the Government has at this exact moment is it’s removing the right, if you will, of any referendum to be held on this particular matter of Māori seats. So we’ve got a little bit of a conundrum there, and the member, of course, who has resumed her seat might like to engage that, or the Minister herself.

So, again, to illustrate the point, there is no problem for me with replacing section 19Z(3) around the two triennial elections. If a referendum is held and the council doesn’t like the result—yeah sure, let’s go and do it again. I mean, practically speaking, councillors are going to be slammed, I suspect, as we are ourselves, if referenda become incredibly expensive. But I don’t have a problem with actually going back.

If this bill was only saying, “Hey, you can have a poll. You can have a referendum on Māori seats, and you can keep revisiting it as much as you like.”—seriously, I’ve got no problem with that. Where the problem is starting with this clause 5 is that the bill is making an absolute, singular exception that no referendum can be held at all, and so we end up with a consistency problem of: how can you say we have to keep revisiting the question when we won’t even allow the question to be put at all? That’s a fundamental, if I will, philosophical consistency problem here. You cannot argue in clause 5 to remove the effect of two triennial general elections—you cannot remove the ability to keep going back to the question—if you’re never going to put the question in the first place, and that’s a bit of an issue there.

The second point, and I touched on it in my earlier contribution around this clause 5, is that yep, we’re called to represent. We are called to do it every three years or, in some areas, beyond, but if we’re not allowed to go back to our people and ask what they think, are we actually representing? It’d it be like us as members of Parliament: none of us would do this, but getting elected and then disappearing for three years—it makes no sense. It is a non sequitur.

So, again, why is this Government so determined through clause 5 to remove an ability—not the ability; an ability—to engage the public, and I suppose that reflect back to the previous member’s contribution of: if we like democracy, then let’s ask people more questions. That’s where I sit on these things. Let’s have more questions, let’s have more debate, more discussion—yep, it can be untidy. It can be messy. There’s been plenty of referenda results that I don’t like, but you sort of get on with life.

So I wouldn’t mind putting that to the Minister. If she would like to respond to Louisa Wall’s contribution, which was asking around clause 5 and the fact that, I think—if I heard that member right—that we should be able to keep asking the question. But my response to it is, well, you cannot keep going back to ask the question if you remove the right to ask the question in the first place.

In response to my colleague’s question, and reflecting on the contribution of the member who has just spoken, can I make a number of points which will be germane to understanding how this bill is intended to operate. Firstly, the representation review process remains the same. So if by 21 May those councils who resolve to establish Māori wards and constituencies or, for that matter, to revoke their previous decision around Māori wards and constituencies are able to, and then that process will be fed into the representation review process.

But let me come back specifically to the point made by my colleague around: the question can never be off the table. In 2018 the Kaikōura District Council, Manawatū District Council, Palmerston North City Council, Western Bay of Plenty District Council, and the Whakatāne District Council did have a resolution, and there was a poll that overturned that resolution at council and then prevented them from considering the question for six years. This bill will actually ensure that for those councils who are in that category, they can actually re-put the question before 21 May.

Now, if I just take, let’s say, Whakatāne District Council and the community engagement in the debate—and I’ll call it a debate because it was—around the merits, or not, of having Māori representation, I would say that as a result of their experience, they are much more well-informed as to why the council would re-put that resolution in favour of establishing Māori wards and constituencies. In fact, local petitions that came to the Māori Affairs Committee proved that exact point.

So I hope, in earnest, that it does respond to the question that was raised by my colleague and clarifies some of the issues on the other side of the House.

I move, That the question be now put.

Members, the Hon Dr Nick Smith’s tabled amendment to introduce a new clause 5A is out of order as being not consistent with the principles and objects of the bill.

Clause 6 Section 19Z amended (Territorial authority or regional council may resolve to establish Māori wards or Māori constituencies)