David Parker — wearing his Attorney-General’s hat — issued his determination on the Rotorua District Council (Representation Arrangements) Bill on Friday, unfortunately after the Māori Affairs Committee had already begun hearing oral submissions.
Despite being unfashionably late to the party, Parker fulfilled his obligations by declaring the bill — which would allow 21,700 voters on the Māori roll to elect three ward councillors while 55,600 voters on the general roll would also elect three ward councillors — to be inconsistent with the Bill of Rights Act. He concluded the bill would limit the right to be free from discrimination and “cannot be justified”.
The Attorney-General has, as Crown Law describes it:
"a unique role that combines, on the one hand, the obligation to act on some matters independently, free of political considerations, with, on the other hand, the political partisanship that is otherwise properly associated with other ministerial offices."
These dual roles explain why David Parker could advise Parliament on April 22 that the Rotorua bill was inconsistent with the Bill of Rights Act after having voted for it on April 6, when it must have been obvious to him then that it breached the act’s provisions, particularly the ban on race-based discrimination.
In his legal analysis, Parker wrote:
"In a representative democracy, it is important to maintain approximately the same level of representation for everyone. The proposed arrangements in the Bill would make the number of council members for the Māori ward disproportionately higher than the number of council members for the general ward in comparison to their respective populations.
As the disadvantaged group is those on the general roll, changing representation arrangements away from proportional representation therefore creates a disadvantage for non-Māori as they cannot in future elect to change rolls."
The Rotorua bill also breaches the Local Electoral Act 2001, which is the reason it was introduced to Parliament in the first place.
The electoral act requires wards to be approximately the same size, in order to maintain the democratic principle of equal voting power for each voter, or as near as is possible. In short, the bill needs Parliament’s ratification because the model proposed by the Rotorua council for electing councillors is currently illegal.
Labour list MP Tamati Coffey brought the bill to Parliament as a local bill. He described it at its first reading in Parliament on April 6 as a “tweak” to democracy.
On his Facebook page he summed up a critical part of his parliamentary speech in support of the bill as:
"Democracy in Aotearoa is a funny thing. It’s a Greek philosophy, implemented in our Westminster / British system of Parliament, that must be moulded to honour our nation’s commitments, like for example, to Te Tiriti o Waitangi."
So confident was Coffey of the righteousness of his campaign to “tweak” and “mould” democracy that he seemed to think the usual period for submissions of four to six weeks for a bill could be happily whittled down to two — including the Easter break, which meant a bare eight working days available for submissions.
His optimism turned out to be misplaced. The furore over the shortened time-frame and outrage over the bill’s constitutional implications has meant the period for written submissions has been extended until May 4.
According to David Farrar on his website Kiwiblog, around 10,000 written submissions had been received by Friday with apparently 2500 of these submitters asking to follow up with an oral presentation (via Zoom). With so many wanting to be heard, the Māori Affairs Committee — chaired by Coffey — has been split into two groups to handle the numbers.
Watching the oral submissions made on Friday, it was clear that many did not agree that the Rotorua representation bill amounted to the trifling tweak of democracy Coffey imagined it to be.
The bill had its firm supporters — including Rotorua District councillor Merepeka Raukawa-Tait, former New Plymouth mayor Andrew Judd and former Māori Party co-leader Te Ururoa Flavell. Flavell saw the bill as a “step in the right direction” and thought any fuss over it would be quickly forgotten. But submitter after submitter also pointed to the dangers of undermining the democratic principle of equal suffrage.
One woman, with her young daughter perched on her knee, evoked George Orwell’s allegorical novel Animal Farm in her assessment of the law change as making:
"some animals more equal than others."
New Conservative Party member Elliot Ikilei — who said his heritage was Māori, English, Niuean and Tongan — was equally forthright. He said he thought:
"bills like this… co-governance structures overall like this… have an underpinning of [good] intention but are incredibly divisive and, arguably, very racist — if not in intent but definitely in outcome… It does reformat democracy into something that’s not actually democracy."
He reckoned what was being proposed was not a “tweaking” but a “mangling” of democracy.
He repeated his charge of racism.
However, when John Ansell, the controversial and outspoken ad man, addressed one of the two committee groups and described the bill as racist, he was cut off. It is true that — unlike Ikilei’s courteous response — Ansell’s four-minute tirade included swipes at the Government’s “sham consultations”, climate change policy, vaccine rollout and its view of the Treaty as a “partnership”.
Ansell particularly annoyed Māori Party co-leader Rawiri Waititi by using the phrase “Te Pity Party” and declaring it was dedicated to “the victimhood of colonisation”.
After Coffey asked him to confine his comments to the bill, Ansell declared:
"This is a “racist government, [and] a racist bill — and you [Rawiri] are the biggest racist of the lot."
"And you are the biggest racist I have ever heard."
Following that tit-for-tat exchange, Coffey warned Ansell he could not call the committee members “racist” and expect them “all to be fine with it”. After a little good-bye wave, Ansell disappeared from the screen.
Ansell was followed by electoral law expert Graeme Edgeler, who lamented the fact the Attorney-General had still not, at that time, issued a ruling on the Bill of Rights implications and so that very important legal contribution to the debate could not yet be considered.
He also pointed out that the bill bypasses the Local Government Commission’s independent check on the Rotorua Council’s “representation arrangements” and instead “moves that role” to a minister.
He saw dangers in allowing elected officials — rather than an independent body — to make decisions that could affect or benefit themselves. He said:
"There is a reason we have the Local Government Commission set up to make these decisions and not Cabinet."
One question that pops up regularly in the debate about democratic representation and just how fair it is in practice is summed up by the phrase “the tyranny of the majority”.
The exchange that shed the most light on that particular question occurred between the Labour MP for Taieri, Ingrid Leary, and pollster David Farrar during his oral submission.
"How do we achieve power-sharing / co-governance or equity when we know that democracy doesn’t necessarily work for some [minority] groups?"
In response, Farrar pointed out he had polled on the seven Māori parliamentary seats and found:
"A majority of New Zealanders support those even though 80 per cent don’t benefit directly from them…
We actually have quite a proud history [in that area].
I was involved in the campaign for same-sex marriage that, in theory, only affects five per cent of New Zealand but had overwhelming support from 75 to 80 per cent of New Zealand because they do understand about fairness."
Perceptions of fairness, of course, are at the heart of the widespread objections to the Rotorua representation bill. And it looks likely that Jacinda Ardern’s Government is going to find out the hard way that most New Zealanders won’t see anything fair in giving voters with a Māori ancestor greater voting power than non-Māori.
If the Government does continue supporting the bill at its second reading, it will be forging ahead with a law that its own Attorney-General has advised breaches the Bill of Rights Act — as well as ignoring the recommendation by the Local Government Commission for a structure it has devised that provides for three Māori ward councillors but retains equality of suffrage.
In that event, the Government’s contempt for democratic process and its checks and balances would be on show for everyone to see.
However, in light of Jack Tame’s interview with Minister for Māori Development Willie Jackson about co-governance on Sunday’s Q&A, it looks as if the Government might cut its losses over the bill and retreat from supporting it.
Jackson was very keen to blame an “over-enthusiastic council” for proposing the bill in the first place and quick to praise David Parker as Attorney-General for his damning report.
When Tame asked whether Jackson supported the Rotorua bill himself, the minister replied:
"I support our Attorney-General, David Parker, who’s come out and said, ‘There’s been a few mistakes.'"
"He didn’t say there were a few mistakes! He said, ’I have concluded the bill appears to limit the right to be free from discrimination.’ He says it’s undemocratic."
Following the Attorney-General’s report, National’s Paul Goldsmith summed up the debacle that Jackson is suddenly so eager to distance himself from:
"It would be a constitutional outrage to abandon the principle of equal suffrage (one person, one vote) by way of an obscure Local Bill, championed by a backbencher, on a rushed timetable, against strident parliamentary opposition while knowing it is in breach of the Bill of Rights.
If they don’t drop the bill, the Prime Minister, or at least the Minister of Justice, should front up and explain why they think it’s no longer appropriate that all New Zealanders should have equal power in deciding who governs them at local government and in decisions affecting their lives.
They haven’t because they know most Kiwis will tell them to shove off."