Chapman Tripp on entrenching the Maori Seats
October 29th, 2008 at 2:58 pm by David FarrarAndy Nicholls, a Public Law specialist and partner at Chapman Tripp has sent through the following article as an Op Ed:
Maori Party faces big hurdles to the entrenchment of the Maori seats
By Andy Nicholls, Partner, Chapman Tripp, specialising in Public Law
Even if the Maori Party is king-maker after the elections with all the leverage that would confer, entrenchment of the Maori seats will still be beyond its grasp.
Entrenchment would require an amendment to the Electoral Act 1993. Some features of our electoral system are already entrenched: the three year term of Parliament, provisions relating to the setting of electorate boundaries, the voting age and the method of voting.
To change any of these features requires either a 75 per cent majority in the House or a majority of the votes cast in a public referendum.
All the other provisions in the Electoral Act, including the provisions dealing with the Maori seats, can be amended by a simple 50 per cent plus one vote.
The Maori Party has a policy of entrenching the Maori seats (and has the support of the Green Party for that proposal). This is a “bottom line” for the Maori Party in any post-election negotiations with National and labour.
However, to add the Maori seats to the list of entrenched matters will require more than a majority vote in Parliament. When entrenching something new, the Standing Orders and our constitutional conventions come into play.
The Standing Orders state: “A proposal for entrenchment must itself be carried in a committee of the whole House by the majority that it would require for the amendment or repeal of the provision to be entrenched.” In other words, a proposal for entrenchment can only be passed by the super-majority it proposes – in this case, 75 per cent.
The entrenchment rule was introduced by the non-partisan Standing Orders Committee following a review of Standing Orders in 1995. The rationale for this rule, of course, is that it is “inequitable” for a Parliament to pass a law under a simple majority vote that seeks to bind future Parliaments and generations by requiring them to assemble larger majorities to amend or repeal that law.
In constitutional terms, this is one of our important checks on majority decision-making. Minor parties like the Maori Party and the Greens will be alive to the importance of this constitutional rule.
On current polls, a 75 per cent vote in the next Parliament will require getting both National and Labour into the “ayes” lobby.
What this means for the Maori Party, even if it is in the position post-election to decide who gets to lead the next government, is it will have to somehow persuade both the suitor it is accepting and the suitor it is rejecting to support it.
That’s a big ask. Referendum anyone?
The second to last paragraph is the key one for me. The Maori Party would have to get both National and Labour to agree, if they want the Maori seats entrenched. That is a big ask indeed. And it also means that it can’t be used as leverage to play one major party off against another as it needs them both.
Thanks to Chapman Tripp for making the Op Ed available to help further public debate and understanding.
Related posts:
- Thanks to Helen, the way to entrench the Maori seats is to have Maori Party go with National
- Sir Douglas Graham on Maori seats and overhang
- The Maori Seats
- Labour looking to hold their Maori seats according to Maori TV/TNS
October 29th, 2008 at 3:05 pm
Entirely correct. So no dead rat for either major party to swallow. Either major party can agree to entrenchment knowing full well that they won’t be entrenched. And For Helen Clark to say that entrenching the Maori Electoral Option to preserve the seats is just duplitious and stupid.
Vote:October 29th, 2008 at 3:10 pm
They should have had the Maori Party together in 2002. They wouldn’t have needed the help of English’s National party to entrench the Maori seats
Vote:October 29th, 2008 at 3:11 pm
Smart man that Nicholls chap.
Vote:October 29th, 2008 at 3:30 pm
I thought it would have been odd for a simple majority to be able to pass a law requiring a super majority to over turn it. Good to have that cleared up.
Vote:October 29th, 2008 at 3:35 pm
Unless they just ride roughshod over convention and standing orders and pass the law anyway. Parliament adjudicates on it’s SO anyway doesn’t it, so any Court challenge could be useless the prevent them.
Vote:October 29th, 2008 at 3:43 pm
TGFT
Vote:October 29th, 2008 at 3:51 pm
Labour whiff their noses at laws. This 75% garbage will not matter a bit to a labour government that can retrospectively change laws to make the illegal legal.
Vote:October 29th, 2008 at 3:59 pm
Thanks for having this informative piece on the site, makes for interesting reading, and certainly brings my anxiety levels down.
I hope if National win they make all Election law entrenched, which may require a lot of work, with other parties, but would make NZ’ers trust the process more, and at the very least they have the power to overturn the EFA anyway as a bargaining chip to get Labour to the table.
Why are the Maori party scared of fair competition? If they have good policies (as some of them are), they’ll appeal to a wide range of voters, not just people of Maori decent. I’m sure with the right candidates & right policies they’d win a few seats equivalent to their approximate party vote as it stands, they may even gain more if they get a slight increase in party vote to around the 5% threshold, or we could as a compromise lower the threshold to 3%, which would all but ensure a Maori party presence in parliament
Vote:October 29th, 2008 at 4:05 pm
I do not get it, NZ has no constitution so how can any government be stopped from doing a damn thing if it has the numbers ?
What is to stop the electoral act from being overturned on a simple majority ?
The Supreme court , that is a giggle, would a Supreme court put together by Labour go against a Labour government or vice versa ?
If the electoral acr is overturned by another law which is signed by the GG, does that not become the law ?
Vote:GG would not do it, the right one would, I suggest a retired politician.
October 29th, 2008 at 4:11 pm
The problem really is that entrenching the Maori seats would entrench a racist situation. I think its good that the Maori Party have formed as they have, and their success will help eliminate the racist Maori seats over time, and particluarly as our two races continue to inter-marry.
Vote:October 29th, 2008 at 4:25 pm
Under Standing Order 4, the 75% requirement to pass an entrenching provision can be suspended (provided a majority of the House agrees to this suspension of standing orders). However, if this were done, then the entrenchment of the Maori seats would lack any credibility/moral authority. So a future majority would be quite justified in repealing the entrenchment provision itself – why should a bare majority today place heightened/more demanding law-making procedures on a majority tomorrow? (This is another point to note – the statutory provision that entrenches aspects of the Electoral Act is not itself entrenched … so a bare majority can at any time repeal it, then change the “protected” parts of the electoral system. However, no government has ever done this, for the simple reason it would be wrong and lead to the constitutional sh*t hitting the fan.)
Vote:October 29th, 2008 at 4:26 pm
Nice piece from Andy.
Vote:October 29th, 2008 at 4:59 pm
We DO have a constitution Grumpy, but it’s not codified. That means it’s a collection of very important documents and laws, like the Bill of Rights, and what are called “constitutional conventions”, which is fancy constitutional lawyer talk for “the way things have always been done”
That’s interesting. I’ve long been under the impression that entrenchment actually required only a normal majority, as that would be the amount currently required for amendment or repeal. Hmm. Then again, looking at NRT, I see that I/S thinks it would need 75%.
No, it wouldn’t entrench a racist situation. It would help backlash against a racist situation. Maori have traditionally been under-represented in Parliament, ever since we locked them into a handful of electoral seats back when Maori outnumbered Pakeha. Now that they stand to be able to have some real influence with their electorate votes, suddenly everyone is worried about the proportionality of a parliament that National wants to have a referendum to abolish.
Maori should decide whether they want the Maori seats- and they do, by which electoral roll they sign up for. It’s a living referendum on the matter.
IF we set the treshold to winning a single list seat outright, then I can see us also removing the concept of overhang electoral seats. But removing the Maori seats should need a supermajority, because they should not be removed by a small majority of Pakeha voting on someone else’s right to representation. If electorate overhang is the problem, vote to reform MMP or put in a better proportional system- don’t vote against the Maori seats.
Vote:October 29th, 2008 at 4:59 pm
The Nats have declared they will abolish the Maori seats after 2014 when they expect the TOW settlements to be concluded.
Now apart from the notion that the TOW settlements will ever be ended (they wont because each generation of Maori will want to relitigate and or claim an inflation adjustement) the Nats will have a hell of a better chance of abolishing the seats than the MP will ever have of entrenching them.
IMHO if we had a binding referendum it would be 80% plus for abolishing on the gorunds that the seats are apartheid in nature and in fact and uphold the very principles that were the subject of protest in the 1981 Tour.
If anyone needs a lesson go and look up the definitions of racist and apartheid. Both apply in every way shape and form to the Maori seats
Vote:October 29th, 2008 at 5:12 pm
rolla-fxgt “Why are the Maori party scared of fair competition?” . They aren’t, they believe there should be no competition. The Maori party believes they have the right to govern in their own right, forget the competition. The Maori party will want input on every action and on every law in NZ, they believe the treaty of waitangi enshrines their right to govern and this will be their bottom line for any party seeking their favours.
Vote:October 29th, 2008 at 5:22 pm
Ari – I can see the logic that it would (in racial harmony terms) be better to change MMP than to change the Maori seats. Perhaps change MMP such that people on the Maori roll don’t get party list votes, they only get electorate representation. That would fix the overhang.
Personally, I’d rather keep MMP, and do what the original Royal Commission proposed. I don’t see Maori as being disadvantaged by this, given that they would presumably mostly move their party list vote to the Maori party, and get the exact same representation they get today – only on the list vote instead of on the electorate vote.
Vote:October 29th, 2008 at 5:33 pm
Bullshit. Absolute, complete, total and utter bullshit. Only Maori can vote in these electorates, excluding other races. Therefore, they are racist. Not question. No argument. Fact.
It wouldn’t be removing anyone’s right to representation. Don’t talk shit.
Bullshit.
It affects everyone, and therefore everyone gets a vote.
Unless you want to do away with this pesky democracy stuff?
Vote:October 29th, 2008 at 6:17 pm
If they are seeking to have seats preserved in parliament because they are a ethnic minority, then i have no problem with this, alot of governments have seats reserved for minority’s in their country but ….
what worries me is that they will be used as a platform to launch race based policy that effects ALL New Zealanders, this is unacceptable to me and unfortunately a bottom line.
I don’t really care how they want to paint it, they stand for race based policies, something many of our forefathers Protested and Died for in the millions to prevent.
Vote:October 29th, 2008 at 6:59 pm
Perhaps change MMP such that people on the Maori roll don’t get party list votes, they only get electorate representation. That would fix the overhang
Vote:That wouldn’t be Mixed Member representation. that would be FPP for Maori electrate and MMP for the rest of us – and will still require 75% support. Hardly a “fix”.
October 29th, 2008 at 7:24 pm
Yep, a straight right wing pakeha vote would dump the seats, because Maori would not take part in it.
Vote:But, there would be a price to pay for the National party if the Maori seats are dumped without agreement with Maori that their time has passed.
I for one would not want to be a Maori Nat MP, because they would be Coventry bound from Maori.
Think Henare would be welcome on that many marae after he voted for dumping the seats.
He would make a choice between being a NZ Maori and a NZ Nat MP, because he could not be both in the eyes of a lot of Maori.
October 29th, 2008 at 7:26 pm
As I have posted before these seats needed to be abolished over 100 years ago when equal voting rights were conferred on maori as were on non maori. They were a stop gap as maori were disenfranchised by the requirement to be a landholder in order to vote. This requirement was eliminated well over a century ago.
This isn’t about the TOW or racism or anything of the sort, abolishing these seats is about removing a stupid solution to an even more stupid problem.
The sad thing is that the MP and left wing lickspittle want to mislead the public on the issue. You will never hear them give air time to the facts.
No matter, Labour will win Nov 8 because there are still enough ignorant sheeple as more of those with brains leave.
Sorry people.
Vote:October 29th, 2008 at 7:28 pm
Jeez hori, you make them sound like a right bunch of racist wankers.
And Coventry ain’t that bad, even if it is a bit too close to Birmingham.
Vote:October 29th, 2008 at 7:45 pm
Having lived in Brum, coventry’s quite nice
The decision on the abolition of maori seats is not a choice for maori, as it was not there choice to have them in the first place. The NZ parliament granted them for a reason, removed then removed the need for them to exist. It is now a decision of the NZ Parliament to make as to whether and when they will be disestablished
Its that bloody simple, simple enuff even for leftie nutjobs and maori themselves to understand. The latter want self determination, but only with a helping hand thanks.
Others have posted for a long time and I agree the Turias etc of maoridom are good enough to be in Parliament on their merit, integrity (coorupt leftie jackoffs wont be able to read this part, I have just realised) and of course mana.
Until kiwis can get on with the job of getting on together the thousands of us (non maori and maori) are unlikely to bring our skills, passion and taxable income earning potential back to NZ
Vote:October 29th, 2008 at 8:01 pm
bringbackthebiff, the Maori seats were granted as you say because at the time Maori outnumbered Pakeha and if they had been given equality at that time would have swamped the Pakeha vote.
Vote:So apartheid was put in place for voting purposes.
Only land owners could vote I hear the cry, Maori were land owners, just the same as those landowners who owned all their land through a company.
Difficult to rewrite history about the Maori seats until all those records are made to disappear
October 29th, 2008 at 8:04 pm
Nefarious, Nah, right wing Pakeha are not that bad
Vote:October 29th, 2008 at 8:08 pm
Right, only Maori can vote in those electorates. I never said otherwise. I said the seats weren’t racist, which means they don’t exploit the privilege of a racial group.
But are Maori issues being fairly served by the general electorates and list MPs? Right now only two parties require any commitment to the Treaty in order to join at all- and those are the Maori Party and the Green Party. You would think that would be a pretty fundamental thing for race relations in New Zealand, but as always, Parliament lags behind.
About four hundred thousand people have opted to enroll on the Maori role. They have effectively voted to be represented by the Maori electorates. Why should you and I be able to disband those electorates with a slim majority when any other electorate seat requires three quarters of parliament to amend or remove?
We would be dictating how people are represented when they have already expressed a clear preference. I don’t see how that ISN’T disenfranchising them of their electorate votes.
It affects everyone, but it affects Maori more, therefore surely it should require both a majority of Maori and a majority of the general population to repeal, right? Unfortunately, roughly 10% of the total population is on the Maori roll, while roughly 15-16% of the population identifies as Maori.
Let’s be upfront: I don’t like the fact that we have an electorate party in New Zealand, and I think the proportionality of Parliament is very important. I don’t like the fact that they’re getting overhang seats.
But, even as a Pakeha, I also don’t like the fact that we under-represent Maori values and the concerns of Maori in Parliament, even though we have a relatively representative parliament at the moment in terms of the number of Maori MPs. The Maori Party, as a truly independent Maori voice, is a really important step, even if we disagree with them on some things. I know they say things that get me worried now and then, but that’s the price of being a truly independent third party.
Which policies are you referring to? And where and when exactly did these forefathers die fighting against race-based policies? Because I’m pretty sure you’re not referring to anything that it’s even remotely fair to compare the Maori Party to.
Vote:October 29th, 2008 at 10:24 pm
That’s not what racist means. You’re running perilously close to the socialist definition of racism, which is essentially the exploitation of one racial group by another. That is not racism. Learn English, then comment.
Your logic baffles me. They vote for a candidate. The candidate selected by the most people wins the seat. Thus, they are represented. Whether they do this in a general electorate or one which discriminates on the basis of race makes no difference, except that in a general electorate they are unable to use their race to gain disproportionate representation by skewing the pool of eligible voters.
Sweet! Great idea! By your logic, the people who pay the most tax should get the most say on how people are taxed, right? I’d certainly be keen for that. Somehow, I don’t think you would be, though.
You seriously need to learn some history. I’d say the bulk extermination of Jews by the Nazi regime would count as a race-based policy, and my grandfather did fight against it (for which he was awarded the Distinguished Flying Cross…. twice).
Ari, I may sound harsh when I say this, but please believe that I mean it in the nicest possible way: You are an imbecile.
Vote:October 30th, 2008 at 11:16 am
What Christopher said!
Vote: