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Local Electoral (Māori Representation) Amendment Bill (Inconsistent) (Sections 5, 7, 19(1)) [2010] NZBORARp 36 (25 May 2010)

Last Updated: 5 May 2020

25 May 2010

_{ATTORNEY-GENERAL}

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: LOCAL ELECTORAL (MĀORI REPRESENTATION) AMENDMENT BILL

1. We have considered whether the Local Electoral (Māori Representation) Amendment Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). The Bill, a Member’s Bill in the name of Te Ururoa Flavell MP, was introduced into the House of Representatives on 6 May 2010 and is awaiting its first reading. We understand the next Members’ Day is scheduled for Wednesday, 26 May 2010.

2. We have concluded that the Bill appears to limit the right to be free from discrimination as affirmed in s 19(1) of the Bill of Rights Act. The limitation cannot be justified under s 5 of that Act. We have consulted the Crown Law Office in preparing this advice. Crown Law agrees with our conclusion.

OVERVIEW OF THE BILL

3. The Bill amends the Local Electoral Act 2001 (‘the Act’) to replace voluntary Māori representation in local government with a requirement for territorial and regional authorities to establish one or more Māori wards (for territorial authorities) and constituencies (for regional authorities). The current Act empowers territorial authorities and regional councils to resolve to establish Māori representation (s 19Z). Alternatively, a poll must be held on the question of whether there should be Māori wards or constituencies if demanded by 5% of electors (s 19ZB). Territorial authorities and regional councils can also resolve to conduct such a poll (s 19ZD).

4. The Bill repeals ss 19Z to 19ZH and ss 24A to 22F of the Act, which deal with Māori representation, and replaces them with new ss 19Z to 19ZD and new ss 24A to 24D. New s 19Z requires all territorial authorities and regional councils to establish one or more Māori wards and constituencies. New s 19ZA requires the number of Māori seats to be in proportion to the Māori population of the relevant territory or region.

5. Clause 13(2) of the Bill repeals the Bay of Plenty Regional Council (Māori Constituency Empowering) Act 2001. The Bay of Plenty Regional Council is the only local body with dedicated Māori seats at this time.

6. The Bill also amends s 33 of the Local Government Act 2002 to require that one member of the Local Government Commission be appointed with the agreement of the Minister of Māori Affairs. Section 33 currently requires only that the Minister of Māori Affairs be consulted before an appointment is made.

CONSISTENCY WITH SECTION 19(1) OF THE BILL OF RIGHTS ACT

7. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to be free from discrimination on the grounds of discrimination in the Human Rights Act

1993, which include race. Legislation may give rise to discrimination under s 19(1) of the Bill of Right Act if the legislation draws a distinction based on one of the prohibited grounds of discrimination and the distinction involves disadvantage

to one or more classes of individuals.

8. The Bill requires all territorial and regional authorities to establish one or more Māori wards or constituencies. Individuals of Māori descent who are enrolled to vote on the Māori roll would vote in Māori wards and constituencies. Everyone on the general roll would continue to vote in general wards and constituencies. Nevertheless, the general roll is predominately non-Māori while the Māori roll consists entirely of individuals of Māori descent. The Bill, therefore, draws a distinction on the basis of race between Māori and non-Māori.

9. The Bill creates disadvantage for non-Māori because the proposed formula for calculating the number of Māori seats in new s 19ZA would lead to disparity in representation between Māori wards or constituencies and general wards or constituencies. The reasons for this are set out below.

Electoral Population and Total Population

10. New s 19ZA would change the formula for calculating the number of council members for Māori wards or constituencies. The proposed formula would be based on the percentage of the total population of the territory or region who identified as being of Māori descent in the previous census. The current formula is set out in Schedule 1A of the Act and is based on the Māori Electoral Population (MEP).

11. The MEP is comprised of the electors on the Māori roll and a proportion of persons of Māori descent who are under the age of 18 or not otherwise registered as electors.1 That proportion is equivalent to the proportion of electors of Māori descent who are enrolled on the Māori roll (and the dormant Māori roll).

12. The General Electoral Population (GEP) is the total normally resident population of New Zealand minus the MEP. In this way, the MEP and the GEP account for the entire normally resident population of New Zealand, including those under the age of 18 years old.

Effect of the Proposed Formula

13. The proposed formula set out in new s 19ZA would count all persons of Māori descent in the calculation of the number of Māori seats. The calculation would not be limited to those on the Māori roll, and an equivalent proportion of those who are under the age of 18 or not otherwise registered as electors (the MEP), but would also include:

• the proportion of persons of Māori descent under the age of 18 (or otherwise not registered to vote) that currently counts toward the GEP; and
  

1 Section 3 of the Electoral Act 1993.

• all persons of Māori descent registered on the general roll (although those individuals would continue to vote in general wards and constituencies).
  

14. As a result, there would be disproportionately more council members representing Māori wards or constituencies under the proposed formula than under the current formula, and fewer representing general wards and constituencies. This is despite the fact that the number of people who live and vote in both types of wards or constituencies would not change.

15. The estimated effect of the Bill in each territory and region is set out in an appendix to this advice. In summary, if Māori representation were established nationwide, the total number of Māori seats on territorial authorities would be 101 under the current formula and 172 under the proposed formula (out of a total of

789). The number of Māori seats on regional councils would be 16 under the

current formula, to 27 under the proposed formula (out of a total of 135).2

16. 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 Māori wards or constituencies disproportionately higher than the number of council members for general wards or constituencies in comparison to their respective populations.

JUSTIFIED LIMITATIONS

17. A limitation on a particular right or freedom can be justified under s 5 of the Bill of

Rights Act where:

• the provision serves an important and significant objective; and

• there is a rational and proportionate connection between the provision and that objective.
  

Important and Significant Objective

18. The broad purpose of the Bill appears to be to make better provision for Māori representation in local government. The explanatory note to the Bill states that the requirement to establish Māori seats arises from the Treaty of Waitangi. It also states that the specific purpose of changing the formula for calculating the number of Māori seats is to provide representation for persons of Māori descent who are under the age of 18. For the purposes of this advice, we consider both these objectives to be significant and important.

Rational and Proportionate Connection

19. The establishment of dedicated Māori representation could be said to be rationally connected to the objective of making better provision for Māori representation in local government. A formula for calculating the number of Māori seats that reflects the total Māori population (not just the voting population) could be said to be rationally connected to the objective of providing representation for those under the age of 18 years old. It ensures they are represented despite being ineligible to vote.

2 Based on population data at 30 June 2009 (Source: Statistics New Zealand).

20. However, the proposed change to the formula does not appear to be proportionately connected to either objective. The change proposed appears to be based on the incorrect assumption that the current formula uses the number of registered electors rather than the total population. The MEP and GEP are not restricted to those registered to vote, but also take account of those under the age of 18 or otherwise not registered to vote.

21. The Bill creates a disparity in the number of people represented by each council member. The proposed formula would make the number of council members for Māori wards or constituencies disproportionately higher than the number of council members for general wards or constituencies in comparison to their respective populations. Conversely, the calculation of the MEP and GEP is designed to ensure that everyone, whether in Māori or general wards or constituencies, have approximately the same level of representation. In establishing dedicated Māori seats, it is unnecessary to adopt a formula that would create a disparity in representation between the Māori and general seats. The proposed formula is therefore not a proportionate response to the problem it seeks to address.

Application in areas with a low Māori population

22. The disproportionality of the proposal could be greater in areas with a very low Māori population. New s 19ZA(2) provides that, where the calculation of the number of Māori seats results in a fraction, the fraction should be disregarded unless it exceeds half. If the fraction exceeds half, the number of Māori seats is rounded up to the nearest whole number. This calculation is the same under the current Act3 but Māori representation is unlikely to be adopted in areas where the Māori population is low.

23. In making Māori representation compulsory, the Bill would apply to areas where the Māori population is too low to equate to even one seat.4 It is possible that a Māori ward or constituency must be established:

• with no council members; or

• with at least one council member but with a very low Māori population.

24. Under the first interpretation, electors on the Māori roll would be able to vote only for the mayor but not for council members. Under the second interpretation, one council member would represent a small number of people (and be elected by a small number of electors).

25. Clearly, both of these interpretations would lead to an absurd result. For this reason, we regard this as a technical deficiency in the Bill, rather than an issue of discrimination, but note that there is no mechanism in the Bill to address what should happen in areas with a low Māori population.

3 Schedule 1A, cl 2(3) of the Act.

4 We estimate this is likely to occur only in one district (Mackenzie) under the formula in the Bill (based on population data from 30 June 2009 supplied by Statistics New Zealand). That estimate would increase to 12 districts and two regions if the existing formula were applied.

CONCLUSION

26. We have concluded that the proposed formula in new s 19ZA appears to limit the freedom from discrimination in s 19(1) of the Bill of Rights Act and the limitation cannot be justified under s 5 of that Act. Accordingly, we recommend that, as soon as practicable, you bring the Bill to the attention of the House of Representatives pursuant to s 7 of the Bill of Rights Act and Standing Order 261. We have attached a draft report under s 7 for your consideration.

27. This advice has been prepared by the Public Law Group and the Office of Legal

Counsel, in consultation with the Crown Law Office.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Biofuel Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all

aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.

The tables below set out the number of Māori seats there would be on Territorial and Regional Councils using the current method in the Local Electoral Act 2001 and the method proposed under the Local Electoral (Māori Representation) Amendment Bill. Only the Bay of Plenty Regional Council has established Māori seats (under the Bay of Plenty Regional Council (Maori Constituency Empowering) Act 2001).

Territorial Authorities