Report of the Attorney General of 21 April 2022 Under the New Zealand Bill of Rights Act 1990 on the Rotorua District Council (Representation Arrangements ) Bill (A.G.)
The Rotorua District Council (Representation Arrangements) Bill (the Bill) seeks to override the provisions of the Local Electoral Act 2001 (LEA) by substituting the formula set out in the LEA by another formula which would allow for Council representation to be over represented by Maori.
The A.G sets out in clauses 10 to 13 the following analysis of the effect of the proposed representation arrangements in answer to the question, “Does the legislation draw a distinction on one of the prohibited grounds of discrimination?”
“10. A distinction will arise if the legislation treats two comparable groups of people differently on one or more of the prohibited grounds of discrimination. Ethnicity is a prohibited ground of discrimination under s21 of the Human Rights Act. Whether disadvantage arises is a factual determination.
11. The Bill distinguishes between the seats that an individual on the Maori roll may vote for, compared with the seats that an individual on the General roll may vote for. People of Maori descent who are enrolled to vote on the Maori roll would vote for Maori seats. Everyone on the General roll would continue to vote for general seats.
12. Individuals of Maori descent can choose whether to enrol on the Maori role or on the General roll. Only individuals of Maori descent can register for the Maori roll, while the general roll includes non-Maori and those of Maori descent who choose not to be enrolled on the Maori roll.
13. The Bill therefore could be seen to draw distinctions on the basis of race or ethnic origins, between people of Maori and non-Maori descent. This is because people of Maori descent can choose to be enrolled on either the Maori roll or General roll, whereas people of non-Maori descent can only be enrolled on the General roll.”
Section 19 (1) of the New Zealand Bill of Rights Act 1990 (NZBORA) states, “Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993” (Human Rights Act).
Section 21 of Human Rights Act sets out the prohibited grounds of discrimination. Section 21(1) sets out at (e) (f) and (g) that it is unlawful to discriminate against people on the grounds of colour, race and ethnicity in the prescribed areas set out in the Human Rights Act.
The A.G. concluded that the arrangement proposed in the Bill is not consistent with the LEA and is discriminatory. At clause 19 of the A.G.’s report he stated that, “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 Maori disproportionately higher than the numbers 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-Maori as they cannot in the future elect to change rolls.”
The A.G., as required by the NZBORA gave consideration to the provisions of s 5 of the Act which states that, “The rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
On the evidence before Him the A.G. found that there were no reasonable grounds which could justify, in a free and democratic society, to approve a prohibited act of discrimination as proposed in the Bill.
What can be taken from the AG’s report
To answer this question we must also consider the s 12 of NZBORA under the heading, Democratic and Civil rights.
Section 12 Electoral rights states, “Every New Zealand citizen who is over the age of 18 years- (a) has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot..”.
The important words in s12 are, “by equal suffrage”. Those words mean that in New Zealand we have universal suffrage. Every New Zealand citizen and permanent resident of New Zealand over the age of 18 has the right to vote and their vote is of the same value as every other citizen or permanent resident.
There is no qualification on that right on the grounds of length of time of citizenship or permanent residence, religious beliefs, colour of skin. Ethnicity, sexual orientation or disability.
The above is also consistent with the provisions of article the third of The Treaty of Waitangi which states unequivocally, “In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her Royal protection and imparts to them all the Rights and Privileges of British Subjects.”
All Maori were thereby granted the same rights and privileges as all British Subjects.
The Maori seats were created in 1867 to provide Maori with the same rights to vote as European property owning males followed by Universal male suffrage in 1879.
With the introduction of universal suffrage in 1879 there was no need to retain the race based Maori seats.
New Zealand cannot fulfil the promise of the Treaty of Waitangi as expressed in Article the third while a separate race based electoral roll exists because a race based electoral roll offends the provisions of the NZBORA and the Human Rights Act.
The same can be said of all co- governance structures which are not the result of a legitimate Treaty settlement process which redresses a proven historical wrong .
New Zealand cannot consider itself a mature and just society until every citizen or permanent resident enjoys the same rights and privileges as every other citizen or permanent resident as prescribed in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 and as promised in the Treaty of Waitangi.
Graeme Reeves is a lawyer and former National MP.