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Dr Muriel Newman

Hijacking our Constitution

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ACT is again in the political spotlight, but for all the wrong reasons. The controversy surrounding John Banks and his 2010 Auckland Mayoral campaign donations is not subsiding. Somewhat ironically, the future of John Banks, ACT and to a lesser degree the National government, hangs off the evidence that Mr Dotcom provides to the Police. It will be up to the Police to decide whether any local body electoral spending rules were broken and whether a prosecution is warranted.

John Banks has told the Prime Minister he has done no wrong. The PM has quite rightly taken him at his word. If however, John Banks is forced from Parliament and a by-election held in the seat of Epsom, it is likely the electorate would return to National. While the  Conservative Party could emerge as a new partner to replace ACT, National may well accept the likely reality that Epsom voters have had enough of minor parties spilling their cups of tea. In addition, given the controversial nature of some of the law changes that are on the government’s agenda – such as asset sales – National may see winning the seat back and gaining an additional MP as a pragmatic move for now.

While the Banksie distraction drags on, other more important concerns progress unnoticed under the radar. One of these, namely, the Constitutional Review, has the potential to fundamentally change the place New Zealanders occupy in their own country.

As I have detailed in previous columns, the Constitutional Review is the creation of a back-room deal between the Maori and National parties. Such is the influence the Maori Party has on the review that they have set the terms of reference, the way it will operate, and they have stacked the membership with Maori.

That in itself, should signal what lies ahead.

What is especially concerning is that they are doing this with the blessing of the National Party. The public meanwhile remains largely unaware of this looming threat.

The Maori Party’s game plan was set in motion through their 2008 Confidence and Supply Agreements with National. It stated, “Both parties agree to the establishment (including its composition and terms of reference)… 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.” Their 2011 agreement continues the process – “to progress the review of New Zealand’s constitutional arrangements and the advisory panel established to lead public discussion on relevant issues. The advisory panel is to deliver its recommendations to the Government in September 2013.”

At the launch of the Constitutional Review, Pita Sharples, indicated there will be a ‘special’ focus on working with Maori: “An important part of the review process will be consultation with Maori, particularly on the place of the Treaty of Waitangi in our constitution. The members of this group are well placed to seek out and understand the perspectives of Maori on these important issues.”

The political nature of this Maori Party advisory panel is in sharp contract to the way in which a major constitutional review should normally have been implemented – through an independent Royal Commission of Inquiry headed by constitutional law experts. Instead we have ended up with a politically appointed panel, heavily weighted in favour of former politicians and Maori academics, but light on legal and constitutional expertise.

This week’s Guest Commentator, NZCPR Research Associate Mike Butler is deeply concerned about the impact on our democracy of the dangerous bias that can be seen to underpin the constitutional review panel and process. In his article Treaty beliefs in their own words he explains:

“One unchanging political reality is that review panels are set up to get the outcomes of the interested party. I suggest that the current constitutional advisory panel has been carefully set up with focussed terms of reference, and carefully vetted panel members, to achieve the Maori Party goal of ensuring that the review gives effect to the treaty, and entrenching separate Maori seats. Therefore, I did a search for quotes from each panellist.”

Mike found, “Since one co-chair and five panellists are or were Maori studies academics with vehement anti-colonialist views and only two have legal backgrounds, it would appear that the focus will be on Maori issues, especially the treaty.”

He also examined the report of the 2005 Select Committee convened to review New Zealand’s Constitutional Arrangements. He concludes, “there was no constitutional crisis and the only people pushing for change were Maori interests. So, just seven years later, without any urgent constitutional matters arising demanding attention, there is a whole new constitutional advisory panel that was set up on the bidding of a special-interest political party – the Maori Party.”

As well as wanting to incorporate Treaty principles in a new constitution, the Maori Party also wants to entrench Maori seats at central and local government level.

Parliament’s Maori seats were created in 1867, when the right to vote was based on being male and owning or renting freehold property: New Zealand’s ‘franchise’ was awarded to any male British subject aged 21 years or older who owned freehold property worth £50 or more; or paid at least £10 a year to lease property; or lived in a house with an annual rental value of at least £10 (in a town) or £5 (outside a town).1 With most Maori land being communally owned, Maori were not eligible to vote under the ordinary rules. The Maori seats were therefore established as a temporary measure for five years to give the Native Land Court time to convert communal Maori land tenure into Crown grants so that Maori men could be enfranchised under the standard property-ownership provisions. The problem was that the free-holding of Maori land took longer than expected and the four seats were retained for a further five years, and then indefinitely – even though universal suffrage was declared in 1893!

The 1986 Royal Commission of Inquiry that was set up to investigate the Electoral System recommended that the Maori seats should be abolished if MMP was adopted. They had reached the conclusion that the Maori seats were an anachronism and that separate representation had proved to be largely ineffective. Taking that into account, the original 1993 Electoral Act to introduce MMP had no provisions for Maori seats. But as a result of strong lobbying from Maori, the Select Committee re-inserted Maori seats into the legislation using a formula based on the Maori electoral option. That meant that the number of Maori seats increased from four to five in 1996, to six in 1999 and in 2002 to seven, where they presently remain.

With persons of Maori descent represented in all levels of decision making these days – on their own merits – the need for special race-based seats and a parallel electoral system that favours Maori, can no longer be justified. Further, the Treaty of Waitangi, which is often used by proponents as an excuse for special rights, actually guarantees Maori the same rights and duties of citizenship as the rest of us. That means that there is no justification at all for separate Maori electorates or separate Maori wards at central or local government level.

This view has been strongly reflected in two recent public polls, where a binding referendum on the establishment of Maori wards by the Waikato District Council was defeated by a resounding 80 percent of voters, and a Colmar Brunton survey which showed over 70 percent of the public were opposed to separate Maori representation. Full details can be found here >>>

Over the last couple of years, the Race Relations Commissioner Joris de Bres has been crossing the line from advocacy to activism by pressuring councils to introduce separate Maori seats – despite the vast majority of New Zealanders not wanting them. That led the Nelson City Council and the Waikato Regional Council to announce that they were going to introduce Maori seats at the 2013 local body elections. However, the Nelson decision was challenged by ratepayers, who used the provisions in the 2001 Local Electoral Act to gather signatures from 5 percent of Nelson electors and demand a binding poll on the issue. That poll, which is presently underway, closes on 19 May.

While the Waikato Regional Council’s decision to establish 2 Maori Wards remains unchallenged at this stage, the Waikato District Council’s referendum indicates that Maori Wards on the Regional Council would also be strongly rejected, should the Regional Council’s decision be challenged. While the deadline for the next election has now passed, a successful challenge would lead to the removal of Maori Wards the election after next.

Maori representation on local bodies comes at a huge cost – as Auckland residents are finding out. The Auckland Statutory Board, with its unelected representatives with voting rights, was established under the legislation that gave rise to the Auckland super city – as an alternative to Maori Wards. While the Board costs ratepayers over $3 million a year to run, they are now demanding that $300 million should be spent on Maori initiatives over the next 10 years for such things as facilities for Maori, significant land and sites, strengthening the culture and environmental work. At present the Board is running a series of hui to determine other issues local Maori want the council to address. To date their list includes lifting incomes, education and workplace skills, health and representation on public bodies, the use of Te Reo Maori, high quality and affordable housing, and co-governance of natural resources.

If New Zealand ends up with a Constitution that enshrines Treaty rights, such demands are likely to escalate. There will be even more calls for special treatment for Maori at every level of New Zealand’s governance arrangements, than there already are.

A great deal of work needs to be done to alert that public to the threat that this Constitutional Review process poses. That includes helping people to understand that New Zealand already has a constitution that works well. It consists of a collection of statutes, conventions and treaties. The advantage of our present flexible arrangement is that changes, such as removing the Maori seats, is a relatively simple process. All that is needed is to repeal the sections that deal with Maori representation in the relevant Acts of Parliament – the 1993 Electoral Act for the Parliamentary seats and the 2001 Local Electoral Act for local body seats. It is for this reason that the Maori Party wants to enshrine the seats within a new Constitution.

As the Select Committee of Parliament reviewing constitutional arrangements in 2005 concluded, there is no crisis and no need to change the general way our constitution works. What is now needed instead is the abolition of special Maori rights and privileges – not their entrenchment. If you would like to join our campaign to fight against the Maori Party’s plan to hijack our Constitution, please visit the www.ConstitutionalReview.org website and support us.

  1. Elections NZ, The Right to Vote