Graeme Reeves: Independent Electoral Review – final report released on 16 January 2024

The Independent electoral Review Panel (“the Panel”) identified and set for itself the following objectives, “how to improve the fairness, accountability, clarity, representativeness and effectiveness of our electoral system and how it can uphold the treaty of Waitangi.

The Panel made 140 recommendation for change to satisfy its objectives.

I wish in this article to refer to only one of them and that is the recommendation that the Maori seats should be entrenched. The Panel did not consider the bigger issue of the Maori seats because it was not include in the terms of reference.

In addition to the issue of entrenchment I will discuss the bigger issue.

In support of its recommendation the panel referred to the 1986 Royal Commission in terms that might lead the reader to infer that the Royal Commission supported the retention of the Maori seats.

Nothing could be further from the truth.

The “Report of the ROYAL COMMISSION on the ELECTORAL SYSTEM - Towards a Better Democracy” December 1986 chaired by the Honourable Mr Justice John Wallace and including in its Members Kenneth James Keith, now Sir Kenneth James Keith ONZ KBE KC PC is one of New Zealand’s most outstanding Jurists devoted a whole chapter the question of the Maori seats and Maori representation.

The Royal Commission on page 101 under the heading “Maori representation under MMP” at 3.74 said:

“There are many different ways of providing for Maori representation under MMP, some quite complex. In the form of Maori representation we have proposed for MMP, there would be no separate Maori constituency or list seats, no Maori roll, and no Maori option. The Presentation Commission would be required to take ‘community of interest among the members of Maori tribes’ into account in determining constituency boundaries, and its membership would be changed to enable it to do so. All New Zealanders would vote in the same way for the party they wished to govern, and for a constituency MP.”

And then on page 102 at 3.76, “…Even though there would be no guaranteed Maori representation, it is likely there would always be substantially more Maori MPs than at present and that they would be spread across several parties, Government and opposition. Maori issues and Maori concerns would be effectively represented within the New Zealand political system. That benefits non-Maori as well as Maori be encouraging mutual understanding and by lessening the degree of division within our country.”

These words have proved to be prophetic.

In 1993, the last first past the post-election there were eight MPs who identified as Maori. There are now thirty three across all six parties in Parliament. That is nearly 27 percent of elected MPs identify as Maori whereas the Number of people who identify as Maori in the population is about 17 percent.

In the 2023 election the Maori Party won six electorate seats.

In 2011 a bright young Otago Honours Law Student submitted a 67 page dissertation titled,” The Truth about Maori Seats.” His name is Jeremy Sparrow. (It can be found on the Otago University web site)

I want to share his conclusion with you because I think he encapsulates the spirit on the Royal Commission’s Report including a cogent argument against the recommendation of the Independent Electoral Review which recommends that the Maori seats should be entrenched. (To be found on page 51 of the paper).

CONCLUSION

“The Maori seats were introduced as a temporary expedient in 1867. Yet, they still exist today. The rationales relied upon to justify the existence of the seats are unconvincing and cannot withstand scrutiny. Simply put, the Maori seats are well past their expiry date.

“MMP has remedied the disparity of Maori representation under FPP. However, by retaining separate seats, Maori are not provided with the effective representation that they would enjoy under a common roll. The size of the Maori electorates ensures they are unworkable and cumbersome to administer.  Further, a common roll would ensure all electorates MPs are accountable to all Maori. The Maori Party’s presence in Parliament would also be put directly under the spotlight. If the Maori Party is providing Maori with effective representation, it is likely the Party would be more successful under a common roll vying for the national party vote, in contrast to only ever winning a maximum of seven electorate seats.

“The seats as a symbol of indigeneity are not justifiable in New Zealand today. There is no duty on a government to grant superior political rights amounting to guaranteed representation to those who claim to be indigenous. Further, the symbolic significance of the seats is tarnished when one requires no proof to enrol. Moreover, the considerable intermarriage that has resulted in the diminution of Maori blood casts significant doubt on whether the seats are still appropriate in contemporary New Zealand.

“The Electoral Act 1993 does not refer to the Treaty of Waitangi or its principles. Furthermore, the moral arguments that the Treaty provides for separate representation are flawed. The Crown’s duty of active protection under Article Two, the guarantee of tino rangatiratanga, the principle of partnership, the electoral rights provided for in Article Three do not mandate separate Maori seats. Instead of a superior form of citizenship, the Treaty provides for unanimity and equality. Rather than being divisive, its real spirit is on of unity and harmony.

“The Maori seats do not breach the principle of democratic equality. Rather, they force us to question whether defining the electorate as Maori or non-Maori is a desirable practice in contemporary New Zealand. The seats are the symbolic pinnacle of our bicultural past when the multicultural reality of our state is otherwise. Rather than the most powerful political and law-making institution in the country being divided at its core, this paper calls for New Zealand to truly become a united nation.

“Accordingly, as no justification remains, the Maori seats should be abolished. Furthermore, this paper has shown that the seats are a discriminatory privilege. It is also unjustifiable to maintain the seats as a safety valve for Maori when other sectors of society are in greater need of a proportionate voice in Parliament. A common roll would also reduce the likelihood of a parliamentary overhang occurring.

“The proposed entrenchment of the seats can be opposed on two grounds. The seats present a politically contestable and complex issue, not a legitimate subject-matter worthy of constitutional entrenchment. Further, Standing Order 262 requires a 75 per cent supermajority to entrench the Maori seats. Thus, in political reality, entrenchment appears unlikely.

“Abolition, in a strictly legal sense, can be undertaken by a simple parliamentary majority. However, there is no current political appetite to abolish the seats. Instead, either retention or abolition should be legitimatised by all New Zealanders at a binding referendum. By doing so, Parliament would ensure the electoral system as a whole is supported by the majority of electors. Depending on the outcome of the 2011 referendum, this paper recommends that the issue be decided at the 2014 or 2017 general election. Clearly, this recommendation is ambitious. But it is essential that this generation finds a way forward. And as Winston Churchill said, ‘Let us go forward together’.”

(Bold areas are added by me)

Conclusion

I apologise for this lengthy quote and while I may not agree with every aspect of it I think that it make an irresistible case for:

(a) Opposing the entrenchment of the Maori seats , and
(b) The abolition of the Maori seats as recommended by the Royal Commission.

In my view the reasoning that the Royal Commission advanced to support their recommendation is equally valid today as it was is 1986.

The question is which of the political parties will be courageous enough to consider the future of New Zealand seriously enough to  take up the challenge in the next election campaign and call for a referendum on the issue?

Graeme Reeves is a lawyer and former National MP.