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Dr Muriel Newman

Constitutional Compromise

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HouseDividedPromo“The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment.” – Robert Maynard Hutchins

A country’s constitution belongs to the people. It’s the charter that sets out the basic rules by which a nation is governed: the rights and safeguards of citizens; how state power is exercised; the type of voting system; the number of Members of Parliament; whether representatives are elected freely or through some form of quota system.

In a well-functioning democracy, constitutional change is careful – guided by politicians who are acting in a principled, non-partisan manner, with citizens fully engaged in the reform process.

In the lead up to the 2008 general election, constitutional matters loomed large. National was promising to hold a referendum on the electoral system to give New Zealanders a say on whether they wanted to retain MMP or change to an alternative system of voting. The Maori Party was promising to establish a constitutional review, aimed at “giving effect to the Treaty of Waitangi”.

These two parties also campaigned strongly on the Maori seats. The National Party wanted to abolish them: “At the conclusion of the settlement of historic Treaty claims, National will begin a constitutional process to abolish the Maori seats. National wishes to see all New Zealanders on the same electoral roll.”[1]

The Maori Party wanted to retain and entrench them: “We will introduce a Private Members Bill to entrench section 45 of the Electoral Act [which defines the Maori seats]”.  And, “The Maori seats will stay until such time Maori freely choose, via a mana-whenua referendum or constitutional review, to get rid of them.”[2]

These polar opposite positions on the Maori seats did not, however, impede a confidence and supply deal between National and the Maori Party after the 2008 election – even though National had established coalition agreements with ACT and United Future to secure sufficient votes to govern.

Their impasse over the Maori seats was resolved in this way:

Both parties agree to the establishment (including its composition and terms of reference) by no later than early 2010 of a group to consider constitutional issues including Maori representation. The Maori Party will be consulted on membership and the choice of Chairperson, and will be represented on the group.

The National Party agrees it will not seek to remove the Maori seats without the consent of the Maori people. Accordingly, the Maori Party and the National Party will not be pursuing the entrenchment of the Maori seats in the current parliamentary term.

Both parties agree that there will not be a question about the future of the Maori seats in the referendum on MMP planned by the National Party.[3]

This deal had serious constitutional repercussions. Through it, National effectively agreed to support the Maori Party’s attempt to gerrymander the constitution and impose its race-based agenda onto the country. National also compromised the integrity of the MMP referendum by excluding consideration of the two issues that were of greatest concern to citizens when MMP was first introduced – the Maori seats and the size of Parliament. Under MMP, the number of Members of Parliament increased from 99 to 120 MPs, against the wishes of the public. And in spite of the 1986 Royal Commission on the Electoral System recommending the abolition of the Maori seats if MMP was introduced – in order to avoid an over-representation of Maori in Parliament – they were not only retained, but increased. As warned, Maori are now over-represented in Parliament.

The National Party rationalised their decision to exclude these important issues from the MMP review on the basis that they would be covered in the upcoming review of the constitution. Indeed, when the terms of reference of the government’s constitutional review were released, they included both matters – the Constitutional Advisory Panel was to consider the “Size of Parliament” and Maori representation, including the “Maori seats in Parliament”.

While many of us argued that the exclusion of these two important issues compromised the consideration of MMP and should have been included, National’s position nevertheless sounded legitimate – that is, until, the government convened the Constitutional Advisory Panel using the 50:50 Maori partnership model. At that stage it became obvious that a politically biased process was underway. To make matters worse, instead of holding open public meetings to engage as many New Zealanders as possible in the consultation process, the advisory panel’s events were by invitation-only. The whole partisan process was clearly designed to fly under the radar of media and public awareness.

In response to what had become an abuse of the constitutional reform process, the NZCPR convened the Independent Constitutional Review Panel to hold an independent review of New Zealand’s constitutional arrangements – their report can be read HERE. However, since submissions to the government’s review were clearly going to be used to try to influence the future, thanks to the generous support of readers of this newsletter, the NZCPR was able to launch a high profile public information advertising campaign in leading newspapers around the country, calling on people to send in submissions. The response to the advertisements was overwhelming. The Panel was swamped with submissions and had to extend their closing date for another month. Altogether they received 5,259 submissions.

While those submissions to the Constitutional Advisory Panel are publicly available on the government’s website, trying to assess the level of public support for specific issues such as the future of the Maori seats and the size of Parliament, by trawling through thousands of documents on a website, is not easy. Having said that, one of our NZCPR Working Groups is presently doing a sterling job of reviewing them – their report will be available soon.

However, I am pleased to advise that as a result of an Official Information Act request, we have now received the official summary of the submissions from the Ministry of Justice – we have made it available on our website HERE.

The OIA confirms the substantial bias that underpinned the government’s review.

Their response to the controversial issue of the Maori seats is a case in point. The OIA informs us that 79 percent of submitters were opposed to Maori seats, wanting no separate Maori representation in Parliament. This was the biggest response to any issue canvassed by the Constitutional Advisory Panel. In comparison, only 8 percent of submitters wanted to retain the Maori seats, and just 3 percent wanted them entrenched.

So, as a result of this overwhelming call to abolish the Maori seats, what did the Constitutional Advisory Panel recommend to the government in their final report? Did they suggest that the widely held view, that the country wants to put race-based division behind us and move forward as equals, should be further investigated – with a view to formulating a process to end separate representation?

No – this is what they said: “Although the Panel received a large number of submissions supporting the removal of the Maori seats this option is not recommended. It is inappropriate for longstanding rights of a minority to be taken away simply because that minority is outnumbered. The existence of the Maori seats does not impede or limit the rights of other New Zealanders to exercise their vote. For the same reason the Panel does not support the view it heard that a general referendum should be held on the retention or abolition of the Maori seats. The question about options for the Maori seats and Maori representation requires a more nuanced decision-making tool that takes account of minority views. The Panel agrees that the decision about the future of Maori seats should remain in the hands of Maori.”[4]

Further, in what they must have regarded as a master stroke, the Panel recommended that the government “invites and supports the people of Aotearoa New Zealand to continue the conversation about our constitutional arrangements”. And in the next breath they state, “the current arrangements for the representation of Maori in Parliament should remain while the conversation continues”.

In other words, establish a new body to lead a never-ending conversation about the constitution and retain the Maori seats for as long as the conversation continues!

Nor did public opinion on the size of Parliament fare any better. According to the OIA, while a clear majority of submitters – 63 percent – wanted to reduce the number of MPs, their views were dismissed by the Panel, which recommended that the government “does not undertake further work on the size of Parliament”.

Whichever way you look at it, the constitutional reviews undertaken by the National-led government during their six years in office have short changed the New Zealand public. The two issues known to be of huge concern to the general public when MMP was introduced – namely the increase in the number of Members of Parliament and the continuation of separate race based seats – were sidelined. Their exclusion from the MMP review was on the understanding that they would be properly considered by the Constitutional Advisory Panel. However, that panel effectively dismissed them – even though the call for the abolition of Maori seats was by far the issue of greatest concern to submitters.

This week’s NZCPR Guest Commentator is Independent Constitutional Review Panel member and NZCPR Research Associate Mike Butler, who submitted the OIA request. Mike has analysed the officials’ review of submissions in his article Submissions reveal constitution panel’s trickery:

“The submissions show that the public wants rid of Maori seats in parliament, does not want separate Maori seats in local government, and does not want the treaty to have any future role in New Zealand’s constitutional arrangements.”

He explains, “The parliamentary Maori seats may be abolished by repealing Sections 45 and 269 of the Electoral Act 1993. The Maori roll may be abolished so all New Zealanders are on one electoral roll as equal citizens, by repealing Sections 76-79 of the Electoral Act 1993. Treaty references may be removed from legislation by a majority vote in Parliament.

Mike concluded his article with this comment, “The Maori party wanted to use the constitutional review as a way of elevating the treaty into supreme law and instead the public has totally rejected the idea. It is up to the National Party/Government to listen to the people and reject any future attempts by Maori supremacists to manipulate the system to give them more power.”

The question is whether the National Party will listen. Without a doubt, the Maori Party’s Treaty agenda has tainted John Key’s administration. While concerns about increasing separatism may not show strongly in the polls, since people are afraid to speak their mind about race relations for fear of being labelled a racist, they are, nevertheless, growing.

In 2004, when Don Brash tapped into this widespread concern, support for National rose significantly. It will be interesting to see whether there are astute politicians prepared to campaign for the equal rights vote in the lead up to the 2014 election, since, as the constitutional review submissions show, the vast majority of New Zealanders want to live in a country where everyone is regarded as equals, not in a country increasingly divided by race.


Would you like to see a constitutional process to abolish the Maori seats undertaken in the next term of parliament so that all New Zealanders are on the same electoral roll?

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1. Maori Party, 2008 Policy Priorities
2. NBR, National confirms policy to abolish Maori seats
3. National Party, Confidence and Supply Agreement with Maori Party
4 . Constitutional Advisory Panel, New Zealand’s Constitution