Bob Edlin: Nick Smith’s fairness questions spark call for reopening of submissions on bill

The New Zealand Taxpayers’ Union  has drawn attention to a significant constitutional issue regarding our right to be consulted fairly on laws which affect our voting rights.

It’s the suggestion (the union said “disclosure”) that Local Government Minister Nanaia Mahata gave local councils advance notice of her Māori wards legislation and the short time that would be allowed for public submissions. 

The Minister had given her allies a five-day head start to prepare submissions on the Bill to entrench Maori wards, union spokesman Jordan Williams contended.

Members of the public, on the other hand, were given just one day’s notice to prepare for “the disgracefully short two-day submission window.”

Williams insisted:

“The Minister knew perfectly well what she was doing. The decision to warn her mates before blindsiding the general public can only be read as a cynical attempt to manipulate the consultation process and limit the contributions of New Zealanders opposed to the Bill.”

This compromising of the process warranted the Speaker reopening the calling of submissions, Williams said.

But if Mahuta did warn her mates, she did not baldly say so in Parliament.

Here’s the Hansard record.

Hon Dr Nick Smith: Did she or anyone from her office or department give supporters of her bill advanced notice, ahead of the general public, of the exceptionally short select committee process?

Hon NANAIA MAHUTA: In terms of the issue, this matter has been in the public domain for a long time. Many submitters referred to the campaigns in relation to the Māori wards matter in their specific councils, and, indeed, some said this conversation has been around for at least six years.

Hon Dr Nick Smith: Point of order, Mr Speaker. My question was very narrow: did she or anyone from her office or department give supporters of the bill advanced notice of the exceptionally short select committee process? She did not address that question.

SPEAKER: The member will address the question.

Hon NANAIA MAHUTA: Once the bill was tabled in the House, everybody knew about the submission time, in the manner that the Māori Affairs Committee had promoted. I made it very clear that the pending changes were in line with the public discourse that had been out in the public domain for at least the last six years.

Rt Hon Jacinda Ardern: Can the Minister confirm that Local Government New Zealand had been lobbying for this change for some time, had been in direct contact with you about seeking a change, and were also very clear about the limited time frame for such a change to be enacted, before they would have to go through a process of referendum—so would have known that it would have been coming in a short time frame?

Raising a point of order, National’s Chris Bishop noted there were at least three legs to the PM’s supplementary question. The Speaker agreed and asked Mahuta to answer no more than two of the three legs.

Hon NANAIA MAHUTA: Yes and yes.

And a bit later …

Hon Dr Nick Smith: Was it fair for councils supporting the bill to be advised on Friday, 5 February that it would be read for a first time on the following Tuesday and that the select committee process would be “exceptionally short”, thus giving those councils six days as compared with one day’s notice for the public?

Hon NANAIA MAHUTA: Several of the councils who were prepared for the submission process were aware that there was a pending legislative obligation to hold a referendum. They were concerned about the cost. So they were ready for a process that engaged them, and, can I just reiterate, the conversation amongst many of those councils who were supportive have been around for a very, very long time.

In the press statement released today, the Taxpayers’ Union says it has 60,000 subscribed supporters.  Thousands of them would have likely produced personalised submissions on the legislation, had they been given the time.

Williams complains:

“Instead, these voices were effectively silenced while the Bill’s allies were able to spend six days writing screeds for the select committee.”

If a National Government did a favour like this for corporate special interests, Williams suggested, Labour would rightly be up in arms.

“This is a complete betrayal of the promise of open and transparent government. It shows a complete disrespect for not just the public, but Parliament as an institution.  It undermines trust in the Select Committee process and justifies the Speaker stepping in so that public submissions are reopened.”

Smith began his questioning of of Mahuta on Wednesday by asking if she stood by her statement that “electoral law matters require thorough consultation”.  If so, how was the public consultation process on her Local Electoral (Māori Wards and Māori Constituencies) Amendment Bill “thorough”?

Mahuta replied;

Yes, and I want to thank the Māori Affairs Committee for the work they undertook during a truncated select committee process to engage the public. I’m informed that there were 12,508 written submissions, 9,703 of which were template style; and 2,805 unique submissions, two-thirds of which were supportive of the bill.

But would there have been more submissions from opponents among the 2805 “unique submissions” if the public had been given more time and had been prepared for the bill as supporters seem to have been?

Smith pressed Mahuta, next, on the matter of thoroughness.

The bizarre response was that supporters of the bill thought it was long overdue, which apparently meant it should be given urgency.

Hon Dr Nick Smith: Does a consultation process of submissions being opened one day and closed the next meet her definition of “thorough consultation”?

Hon NANAIA MAHUTA: I note that many submitters during that period of time identified that while the submission process was short, it was long overdue. Let me take, for example, Jill Day, a Wellington city councillor, who said, “The next election is actually looming faster than we can all imagine and we want to make sure we can make this change in time. One of the things I was really excited about was the announcement that there’s been an extension so that we, as a council, can revisit the decision from last year. Otherwise we have to wait another three years.” So there’s actual genuine urgency with this

Then came the very practical question of how thoroughly submissions could be considered by legislators in the limited time made available.

Hon Dr Nick Smith: How could she, or any MP on the select committee, read the submissions on the bill in the timetable she requested, when it would require reading a submission every minute—and I’m only referring to the unique submissions; a submission per minute—without any sleep for three days?

SPEAKER: Order! The member can refer to her own reading; she’s not responsible for the reading speeds of select committee members.

Hon NANAIA MAHUTA: Mr Speaker, let me respond. From my observation of this select committee, there were very diligent members who participated and engaged with the views of the public, irrespective of what view they held.

Inevitably, the Treaty was invoked to justify the government’s rush to facilitate the introduction of Maori wards, although it makes no mention of electoral processes.

Teanau Tuiono: Can the Minister confirm that the reason for her sense of urgency to pass this bill is an urgency to overturn a breach of Te Tiriti o Waitangi before the 2022 local elections?

Hon NANAIA MAHUTA: Yes, and, as I had explained in previous questions in the House, this is a short-term fix to enable a discriminatory provision to be removed from legislation in time for the 2022 elections.

 Smith asked if Mahuta agreed with the statements in a Stuff article from former Department of Internal Affairs senior local government advisor Gavin Beattie that some of the statements made by the Minister needed to be corrected, notably that the 2002 law was racist and that the Māori wards should be considered the same as general wards, and will she now apologise for those errors?

She didn’t directly answer yes or no.

Rather, she said:

That member is selective with his quote. What I do agree with is that in the article that’s being referred to, the time that Māori wards were introduced into legislation is the same time as the provisions of the single transferable vote to be introduced into legislation—that a poll be applied. I stand by my voting record on this particular issue. I think it was a progression—obviously not far enough to deliver the outcome, and that’s why we’re coming back to the issue of removing a discriminatory clause in legislation.

Mahuta then dealt (unsatisfactorily, in our book) with the question of why she has created a new discriminatory set of rules to get rid of another set of discriminatory rules.

Hon Dr Nick Smith: Why has she stated that her bill provides the same process for creating Māori wards as general wards when the process for general wards requires public notification, submissions, hearings, and appeal rights, where none of these are required in her bill for Māori wards?

Hon NANAIA MAHUTA: The bill will remove the discriminatory provision of a 5 percent referendum. The way in which the Māori wards will be decided will stay the same. This will be to ensure that we can implement these changes in time for the 2022 election. The longest stage-two term fix, as I indicated in the legislative statement, will be a matter that will go to full consultation, both the policy process and the select committee process, at the end of this year.

Hon Dr Nick Smith: Will councils, under her amended law, have the legal authority in future to disestablish Māori wards once established, if they wish, as they can do with general wards?

Hon NANAIA MAHUTA: Yes. As I have said, removing the discriminatory provision will still enable councils to put the resolution without the prospect of a poll overturning their resolution. They have up until 21 May to either put the resolution for those councils who have not yet done so or overturn that resolution. But I much rather suspect, from the many submissions that were in favour of this bill, that many—several—councils see this as a positive part of our democracy to include Māori wards.

Does weight of numbers matter much in Mahuta’s office when it comes to considering “democracy”?

According to a letter in the Dominion Post today, the report of the Maori Affairs select committee on the bill records that a total of 12,508 submissions were made, with 9533 opposing.  Hence about 76% of submitters were opposed to the bill.

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE.