5 December 2018
Maori Affairs Select Committee
Submission: Electoral (Entrenchment of Maori Seats) Amendment Bill
Thank you for providing the opportunity to make a submission on the Electoral (Entrenchment of Maori Seats) Amendment Bill.
This submission on behalf of the public policy think tank, the New Zealand Centre for Political Research, opposes the Bill on the following grounds:
1. The reason for the existence of the Maori seats has long disappeared
2. The Maori seats breach Section 19(1) of the New Zealand Bill of Rights
3. The Maori seats are not suited to entrenchment
4. The Bill is in breach of Parliament’s rules
5. The Maori seats are no longer lawful
- The reason for the existence of the Maori seats has long disappeared
The Maori seats were a constitutional measure, introduced on a temporary basis in 1867 to give Maori men the right to vote. The settler government had requested colonial authorities to waive the property qualification that conferred the right to vote under English law – since it did not apply to communal land – but they refused. As a result, four Maori seats were introduced as an interim measure while the Maori Land Court individualised Maori land holdings. The seats were meant to remain in force for five years, but had to be extended for a further five years, and then they were extended indefinitely.
When the property qualification for men was finally removed in 1879, the Maori seats had enabled Maori men who didn’t qualify to vote 12 years earlier than non-Maori men who didn’t qualify. No longer needed, the Maori seats should have been abolished at that stage.
The introduction of universal suffrage in 1893, removed any vestige of reasons for separate Maori seats, yet for political reasons they were retained.
Since the original purpose of the Maori seats has long disappeared, they should be abolished, not entrenched.
- The Maori seats breach Section 19(1) of the New Zealand Bill of Rights
In 1986 the Royal Commission on the Electoral System recommended that the Maori seats should be abolished if our voting system was changed from First Past the Post to Mixed Member Proportional. They warned that MMP would increase the Parliamentary representation of minority groups and that retaining the Maori seats would lead to an over-representation of Maori in Parliament.
Indeed, when the MMP legislation was first introduced into the House, the Maori seat provisions had been removed, but as a result of strong advocacy by iwi leaders, they were added back in.
As a result, there are now 30 MPs of Maori descent in our Parliament – including the leaders or deputy leaders of all political parties. That’s a quarter of all MPs.
The Maori seats have now led to a disproportionate over-representation of Maori in Parliament.
In other words, the retention of the Maori seats, against the recommendation of the Royal Commission, means the important principle of proportionality has been ignored. This breaches section 19(1) of the New Zealand Bill of Rights Act 1990 – freedom from discrimination based on race.
A ruling by the Attorney General in 2010 has relevance. He determined that a bill that would have increased Maori representation on councils to a level greater than their proportion in the population as a whole was discriminatory and in breach of the Bill of Rights. He stated in his ruling, “In a representative democracy, it is important to maintain approximately the same level of representation for everyone. The proposed formula would make the number of council members for Maori wards or constituencies disproportionately higher than the number of council members for general wards or constituencies in comparison to their respective populations. The Bill has a discriminatory impact on non-Maori by diluting their democratic participation in local authority elections.”
The same could be now said for the Maori seats. The Maori seats have led to the number of Maori MPs being disproportionately higher than non-Maori MPs. This has a discriminatory impact on non-Maori by diluting their democratic representation in Parliament.
As such, since the Maori seats are now discriminatory and in breach of the Bill of Rights, they should not be entrenched, but abolished.
- The Maori seats are not suited for entrenchment.
The Electoral Act’s six reserved provisions can be found in Part 1 of section 268. They are:
a) the term of Parliament
b) the Representation Commission to determine electoral boundaries
c) the creation of general electorates
d) the 5 percent margin to ensure electorates are the same size
e) the minimum voting age of 18
f) the method of voting.
Each of these provisions is constitutional in nature.
When the Maori seats were first introduced as a means of giving the vote to Maori men, they were constitutional in nature. But once all men gained the vote, the constitutional rationale for their continued existence disappeared, and the reason they were retained was political.
That’s why they have no place in section 268 of the Electoral Act, which is reserved for key electoral requirements that are constitutional in nature. That is no doubt one of the main reasons why past Parliaments have not entrenched the Maori seats and why future ones should not do so either.
- The Bill is in breach of Parliament’s rules
The process being used for introducing the Maori seat entrenchment bill is in breach of Parliament’s rules.
Under Parliament’s Standing Order 266, any legislative proposal to include or remove an entrenched provision needs to be passed by the same special majority of Parliament: “A proposal for entrenchment must itself be carried in a committee of the whole House by the majority that it would require for the amendment or repeal of the provision to be entrenched.”
This rule was introduced through a review of Standing Orders in 1995 on the basis that it would be “inequitable” for a Parliament to pass a law under a simple majority vote that seeks to bind future Parliaments and generations.
As a result, it should have been specified in the Bill that a special majority of 75 percent of Parliament would be needed for this Bill to become law. The fact that the Member wants to pass it into law with only a standard 50 percent majority, means that the Bill is in breach of Standing Order 266 and should be rejected.
- The Maori seats are no longer lawful
In 1993, the Electoral Act changed the number of Maori seats from being fixed at four to being determined by the total Maori electoral population, which is determined by the number of people who indicated they had Maori descent on their Census forms.
As a result of the numbers registering on the Maori roll, the number of Maori seats in Parliament rose from 4 to 5 in 1994, from 5 to 6 in 1997, from 6 to 7 in 2001, staying at 7 since then.
However, the 2001 change from 6 to 7 seats was not due to a dramatic increase in the number of voters switching to the Maori roll, but was instead the result of a unilateral decision by the Government Statistician to change the way the Maori seats were calculated.
In 1997, he decided to include a proportion of those who had said they didn’t know, had left the question blank, or had given a confusing answer in his calculation.
As a result of this ‘imputation’ calculation, the number of Maori seats increased from 6 to 7. Without imputation there would have only been 6 Maori seats since 1997.
The problem with the situation as it stands is that section 3 of the Electoral Act requires the Maori electoral population to be based on “the total number of ordinarily resident persons of New Zealand Maori descent as determined by the last periodical census”. But the numbers used since 2001, have not been based on the census – they have instead been based on the census plus an estimate calculated by the Government Statistician.
Essentially, this means that since 2001, the process used to calculate the number of Maori seats is unlawful. It would clearly be improper to entrench unlawful seats.
In conclusion, in light of the fact that the constitutional reason for the Maori seats has long disappeared, that they have become discriminatory and breach section 19(1) of the New Zealand Bill of Rights Act 1990, that they are political in nature and therefore not suited to inclusion in the entrenchment provisions of the Electoral Act, that the entrenchment process used by the Bill is in breach of Parliament’s rules, and that the Maori seats are no longer lawful, the Bill should not only not proceed, but the Maori seats themselves should be abolished.
Dr Muriel Newman
New Zealand Centre for Political Research