Legal Beagle by Graeme Edgeler

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Careful what you wish for: How entrenching the Māori seats may lead to the opposite of what its supporters seek

On 3 May Labour MP Rino Tirikatene had his Electoral (Entrenchment of Māori Seats) Amendment Bill drawn from the ballot. It hasn’t been before the House for its first reading debate yet, but it has already caused some controversy.

The bill aims to add some of the bits of the Electoral Act dealing with the Māori seats to the list of provisions protected by section 268 of the Act, which “entrenches” specific provisions of the electoral law, making them harder to amend.

The drawing of the bill from the members ballot follows concern about the different treatment of Māori representation at Local Government level. Moves by various councils to create Māori wards have resulted in ratepayer petitions requiring binding referendums on the issue, all of which have resulted in the council’s decision being overturned.

Supporters of Māori representation have argued that minority rights should not be subject the majority veto. Instead, they say the question of whether there should be Māori wards should be put in the same position as the organisation of general wards: which is a matter for a simple majority decision by councils, not subject to possible referendums, which I’ll be honest, doesn’t sound very different from a majority veto to me.

The objection to the holding of referendums may have greater salience because, when public votes on minority rights are held, they can often be very negative experiences, even if successful in upholding the rights. But that seems contrary to what entrenchment actually is.

Simply put, entrenchment is a process that makes it harder to change a law.

Very few provisions are entrenched in New Zealand, but we have recognised that there are some matters that are so important, the question of change should be a matter for voters in a referendum where the suggested change is contentious. We have collectively formed the view that it would be wrong to allow a simple majority in Parliament to stack the Representation Commission (which draws election boundaries), or extend the term of Parliament by abolishing elections, or to raise the voting age. These matters go directly to how MPs are elected, so questions around them are left to the voters.

There is effectively a political convention that extends this beyond the specific issues that are formally entrenched. The MMP voting system is not formally entrenched, but the understanding is that changing to a different one would require a referendum, even if a referendum may not technically be required.

Now, Parliament can amend entrenched provisions, but if it wishes to do so, it needs something close to consensus – a 75% vote is needed to make the change. Which means that if the change proposed isn’t something that a political consensus has formed around, if it’s going to be changed, then its going to be at a general referendum.

I’m open to the entrenchment of the Māori seats, but if your position is like that of Alex Braae, writing for The Spinoff:

“Surely, if the Māori seats are to be abolished, it should be a decision for Māori alone to make. Otherwise, it would be a case of the majority dictating to a minority group what their rights are.”

Then adding the bits of the Electoral Act dealing with Māori seats to the list of entrenched sections probably isn’t what you want to do.

First, for a law protecting the Māori seats from simple majorities in Parliament by adding them to the sections protected by section 268 of the Electoral Act to pass, you need one of two things:

Given that National appears not to support entrenching the seats, the only realistic option for entrenching them is by a referendum. Which seems to be contrary to much of the purpose of removing a public veto over minority rights.

And even if successful in getting 75% support in the House, entrenching the Māori seats simply changes the majority needed to get rid of the seats from a simple majority in Parliament to simple majorities in both Parliament, and among the general public at a referendum.

Now, there are probably some things that could be done legislatively to better protect the Māori seats from repeal – setting up a periodic process by which Māori alone could make the decision over whether to retain the Māori seats would be one option – and it would probably remove some of the political impetus behind moves to change, but I suspect that would not have much support, even among supporters of the Māori seats.

I think there a lot of bits of the Electoral Act that are important enough to protect from amendment by a simple majority in Parliament (I wouldn’t want a simple majority to be able to increase the threshold to 15%, or reduce the number of list MPs to 10, for example), and I can see that the Māori seats could fit on that list. But I wonder whether the people supporting the push to entrench the Māori seats really want to move it to a system where the ultimate vote on them would probably be a referendum.

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