Ahorangi Professor Andrew Geddis discusses the establishment of dedicated Māori local government representation, and the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021 enacted under urgency in 2021.

Tīmatanga kōrero - Introduction

Through amendments made in 2002 to the Local Electoral Act 2001, territorial authorities and regional councils gained the power to create Māori wards or Māori constituencies for their respective elections.^[1] For simplicity’s sake, this comment will combine discussion of both processes in terms of establishing dedicated Māori local government representation. Such dedicated representation would mirror that existing at the national level, where 7 Māori seats permit those voters of Māori descent who choose to be on the Māori roll to directly elect members of Parliament.^[2] However, attempts since 2002 to actually establish dedicated Māori local government representation regularly were stymied by a “voter-veto” power exercised through a binding referendum process. Of the twenty-four previous proposals to establish dedicated Māori local government representation, twenty-two were rejected by voters.

Nevertheless, by the end of 2020 another 9 local government bodies had resolved to establish dedicated Māori representation for the 2022 local government elections. Increased interest in this representative model reflects both ongoing systemic under-representation of Māori on local government bodies,^[3] and the increasing obligations on such bodies to consider Māori interests when making decisions. Concern arose that these decisions might then suffer the fate of previous attempts, with sufficient signatures being gathered to force referendums in relation to at least 7 of them. As a consequence, the Labour Government (supported by the Green Party and Te Pāti Māori) enacted the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021 under urgency to remove the voter-veto power. This comment examines why it took this step, how it was accomplished, and whether the use of urgency to do so was justified.

Kōrerorero - Discussion

The 2002 amendments and their discontents

A policy adviser involved in the original 2002 legislative amendments’ creation recently outlined their largely benign original intent.^[4] While empowering local governments to establish dedicated Māori representation, the amendments also sought to retain local community oversight  of this “principled” decision via referendum process. A local government body could decide by resolution to establish dedicated Māori representation. However, when a local government body did so, it had to notify its community of this decision and that it could be reversed by referendum. If 5 percent of local electors then signed a petition to demand such a referendum on the decision’s merits, one had to be held. The result of the referendum was then binding on the local government for the next 6 years (i.e. two electoral cycles). Alternatively, a local government body could decide to put the question of establishing dedicated Māori representation direct to voters by way of a binding referendum vote, again being bound by the result for a 6 year period.

In defending this approach, comparison has been drawn with a contemporaneous legislative change that enabled local governments to choose between different voting systems to elect representatives. Local electors also can trigger a binding referendum on this decision.^[5] In hindsight, conflating the two issues seems misbegotten. A local government body’s choice of voting system may be coloured by incumbents’ desire to maintain or improve their position: existing representatives may believe they have a better chance of retaining their seats under the existing voting system; or a majority of councillors may believe they have a better chance of holding on to their majority status in the future by changing the voting system. Having a process whereby voters directly can override that incumbent self-interest and veto change if they believe it to be wrongly motivated (or, enforce change where a local government body will not act) is therefore warranted. However, this is not the case with the creation of dedicated Māori local government representation. In most cases, creating this new form of representation will see some incumbent local government body member(s) actually lose their positions. As such, there is no need for the local electors to be able to directly override incumbent self-interest.

Furthermore, permitting local electors to allow or disallow dedicated Māori local government representation effectively enabled a usually Pākehā majority to decide whether tangata whenua would gain direct representation on local government bodies. As noted above, the consequence of doing so was that referendums functioned to stymie virtually all past attempts to establish dedicated Māori local government representation. Meanwhile, other decisions on local government representation—how, if at all, the electorate should be divided into general wards or constituencies—were not subject to a similar voter-veto process. The creation of a national organisation, Hobson’s Pledge, that actively campaigned to overturn local government decisions to create dedicated Māori representation also called into question how “local” such decisions really are.

Consequentially, calls to remove the voter-veto power became increasingly loud. In 2016 a petition seeking this change was presented to Parliament by the former mayor of New Plymouth, Andrew Judd, who in 2014 had led a voter rejected attempt to establish dedicated Māori representation on his council. This petition was considered by Parliament’s Justice and Electoral Committee, the government members of which “recommend[ed] that the Government consider aligning the process of establishing Māori wards with all wards through representation review”.^[6] Furthermore, Local Government New Zealand submitted in support of this petition’s aims, which it followed in 2018 with a letter to the leaders of the new coalition government that “seeks your support to remove those sections (s.19ZA to 19ZG) of the Local Electoral Act 2001 that allow for polls of electors on whether or not a city, district or region can establish Māori wards and constituencies.” In November of 2020, Local Government Minister Nania Mahuta promised legislation to achieve this end,^[7] which then was introduced into the House on 5 February.

The amending legislation’s passage into law

The Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill was presented as an immediate fix to the problems the voter-veto process posed to the 2022 local government elections, to be followed by a second stage of legislative change to “develop a permanent mechanism for local authorities to consider the establishment of Māori wards and constituencies.”^[8] The Bill achieved this end by:

• repealing the provisions in the Local Electoral Act 2001 that relate to polls on the establishment of dedicated local government Māori representation;^[9] and
• prohibiting binding council-initiated polls on whether to establish dedicated local government Māori representation (while retaining the right of councils to initiate non-binding polls to gauge public sentiment);^[10] and
• establishing a transition period ending on 21 May 2021 in which any local authority may, regardless of any previous decisions or previous poll outcomes, resolve to establish dedicated local government Māori representation for the 2022 local elections.^[11]

Following the Bill’s first reading on 9 February, it was sent to the Māori Affairs Committee for what might charitably be called expedited scrutiny. The public was given less than 48 hours following the first reading debate’s conclusion to make written submissions, with the Committee then hearing oral submissions over a Friday and Saturday in order to meet the requirement that it report back to the House on 15 February. The stated reason for this urgency was that the Government wished to enact the Bill by 22 February in order to prevent any local government bodies from having to announce that a binding referendum would be held on establishing dedicated Māori representation.^[12] The Māori Affairs Committee met its reporting date, with the Labour and Green Party members recommending the Bill’s passage unamended and the National Party members registering their dissent.^[13] However, due to Auckland moving back into a Level 3 lockdown, the Bill only received its second reading on 23 February before passing through all its remaining stages under urgency in that same sitting day. Upon receiving the Royal Assent on 1 March, it became law.

Consequently, the voter-veto process has been removed entirely from the Local Electoral Act 2001. As this repeal was given retrospective effect,^[14] those local bodies that had received petitions with sufficient signatures to trigger a referendum on establishing dedicated Māori representation were required to cancel that process.^[15] Furthermore, local government bodies were given an extended period (until 21 May) in which to decide whether to establish dedicated Māori representation, while those 9 local government bodies that already had decided to do so may revisit their decision. The rationale for this extended decision-making period is that some local government bodies may have been reluctant to establish dedicated Māori representation due to concerns about the likelihood of a voter-veto occurring, while some of those that had done so might believe the removal of a potential voter-veto undermined their decision.

It should be noted that although the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021 was promoted as creating parity between a decision to establish dedicated Māori local government representation and other decisions relating to forms of representation, this actually is not the case. A local government body resolution to establish dedicated Māori representation does not have to be notified to the public, and is not subject to a requirement to enable and consider public submissions, in the same way as are other proposed representational changes.^[16] Furthermore, the Local Government Commission cannot consider objections to a resolution to establish dedicated Māori local government representation.^[17] No doubt this discrepancy will be addressed in the Government’s promised second tranche of legislative reform. However, it does mean that local government body decisions to establish dedicated Māori representation for the 2022 elections — a decision that then will remain in place for at least the next two electoral cycles^[18] — requires less public input and is subject to less oversight than is the case with other decisions on representation.

Was the use of parliamentary urgency justified?

There are strong substantive reasons for abolishing the voter-veto process in relation to dedicated Māori local government representation. Despite its goal of enabling considered local decisions on forms of representation, it has in practice sparked divisive, often acrimonious, and sometimes openly racist conflict. It also divorces the question of Māori representation from other representation decisions, such as whether to have multiple wards within a local government body. And at a fundamental level, it makes the right of Māori to be represented as tangata whenua on local government bodies contingent on the permission of non-Māori living in the area.

Nevertheless, the process used to effect the voter-veto repeal is at least somewhat questionable. The use of urgency to race the legislation onto the statute books meant that while the select committee received 12,508 written submissions and heard 118 oral submissions on the Bill, there still will have been some members of the public left unable to have their say on this matter. The fact that the legislation dealt with a matter of electoral law, on which the legitimacy of local government bodies rests, only heightens the problems associated with enacting it under urgency. Of course, there is precedent for Parliament speedily altering local government representation arrangements. The Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010­ — which replaced the existing members of Environment Canterbury with appointed commissioners and cancelled the election of new members — was passed through the House of Representatives in a single day with no select committee process at all. However, while this action may raise questions regarding the consistency of some of those criticising the present legislation,^[19] earlier potential wrongs do not thereby make a later action right.

The counter argument is primarily pragmatic in nature. Unless and until the voter-veto provisions were repealed, those local government bodies where enough signatures were received to trigger a referendum had to begin the process of enabling one to go ahead. While the legislation’s retrospective effect would put a halt to such actions, and even deem any vote in such a referendum void, it still represents a potential waste of public resources. Furthermore, the issues around the voter-veto process had received quite some airing over a period of time, with the Labour Government having concluded that the original legislative approach had been a mistake. Consequently, judgment on the appropriateness of using urgency to address the issue largely rests on how the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021 is viewed: is this legislation simply a swift “fix-it” response to a proven earlier legislative error; or does it represent a significant change in the way in which local government representation will be decided that the New Zealand people ought to have had a full opportunity to contribute to?

Ngā kupu āpiti - Notes:

* Andrew Geddis is Ahorangi Professor in the Faculty of Law at Te Whare Wānanga o Ōtago (the University of Otago).

[1] Local Electoral Act 2001, ss 19Z-19ZH.

[2] Maria Bargh, “The Māori seats” in Janine Hayward (ed), New Zealand Government and Politics (6^th ed, OUP, 2015) 300.

[3] Jack Vowles, “Local government’s Māori representation gap” (22 February 2021) Newsroom https://www.newsroom.co.nz/ideasroom/local-governments-Māori-representation-gap.

[4] Gavin Beatty, “How the law on Māori wards was drawn up” (17 February 2021) Stuff https://www.stuff.co.nz/national/politics/local-government/124258793/how-the-law-on-mori-wards-was-drawn-up. This claim is strengthened by the fact that the current Minister for Local Government, Nanaia Mahuta, actually spoke in favour of the 2002 amendments in the House before voting for them to become law.

[5] Local Electoral Act 2001, s 29.

[6] Justice and Electoral Committee, “Inquiry into the 2017 General Election and 2016 Local Elections (Including Petition of Kim Robinson for Deaf Action New Zealand and Petition 2014/60 of Andrew Mark Judd)” (December 2017) AJHR 1.7A 40.

[7] Susan Botting “Mahuta vows to clear obstacles to creating Māori council wards” (6 November, 2020) RNZ https://www.rnz.co.nz/news/national/430010/mahuta-vows-to-clear-obstacles-to-creating-maori-council-wards.

[8] Hon Nanaia Mahuta, “Government supports councils to increase Māori representation” (1 February 2021) Press Release https://www.beehive.govt.nz/release/government-supports-councils-increase-māori-representation.

[9] Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill, cl 7.

[10] Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill, cl 5.

[11] Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill, cl 9.

[12] 749 NZPD 608 (9 February 2021).

[13] Māori Affairs Committee, “Report on the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill” (15 February 2021) https://www.parliament.nz/resource/en-NZ/SCR_107983/2c24a3f5cb1067263cc444f8e32210e43304acc5.

[14] Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill, cl 9.

[15] See, e.g., Tauranga City Council, “Māori ward poll formally cancelled” (5 March 2021) press release https://www.tauranga.govt.nz/council/council-news-and-updates/latest-news/artmid/456/articleid/6363.

[16] Compare Local Electoral Act 2001, sched 1, pt 1, cl 2 with Local Electoral Act 2001, s 19M.

[17] Local Electoral Act 2001, ss 19Q-S.

[18] Compare Local Electoral Act 2001, sched 1, pt 1, cl 3(b).

[19] Hon. Nick Smith, who in the House labelled the Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill a “bad bill” being “pushed through under an awful process”, was the Minister responsible for introducing the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010­ into the House.

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