Kiwiblog

Andy 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.

Laila Harre details how the left plans to win the election, even if they get less party votes.

Union secretary Laila Harre told delegates the Greens and the Maori Party had been “our strongest backers” on key issues such as ending lower pay for young people and keeping shops closed at Easter, with Labour “a very close second” on both issues.

In a closed session with the MPs afterwards, she said the only way to prevent a National-led Government, based on an average of recent polls, was for the Maori Party to win all seven Maori seats, creating an “overhang” above the 120 MPs elected through proportional representation.

But it would then be critical for the Maori Party to use its seats to keep Labour in power.

Under FPP Governments sometimes got formed that had less popular vote than the Opposition. But FPP was not a proportional voting system. It was not meant to reflect a national vote – it was a series of local contests.

MMP is very different. It would be outraegous for a Government to be formed that got less party votes than the Opposition as its main virture is proportionality. I’m not talking just the two big parties here, but the combined vote.

Take this election result based just on party vote:

• National/ACT/United Future 51% – 62 seats
• Labour/NZF/Prog/Greens/ – 47% – 56 seats
• Maori Party 2% – 2 seats

There are 120 seats normally so National/ACT/United would form a Government having got 51% of the vote and 62/120.

But Laila Harre’s plan for the left is for the Maori Party to win all seven seats, despite a party vote that entitles them to just two seats, creating an overhang of five seats. Then you have:

• National/ACT/United Future 51% – 62 seats
• Labour/NZF/Prog/Greens/ – 47% – 56 seats
• Maori Party 2% – 7 seats

Now the Maori Party would have two choices here. Support the parties that got 51% of the vote or go with Labour (as Laila wants) so that they get 63/125 seats despite getting 2% less votes than the Opposition.

This would give Labour a fourth term. It would also spark such a backlash that I suspect both MMP and the Maori seats would disappear within a decade.

The media are reporting that John Key has “conceded” that the Maori seats policy is not a non negotiable bottom line for National.

This will only come as a suprise to people who think Austria is the home of the Wallabies.

It has been obvious for months if not years that the abolish the Maori Seats policy after 2014 would be up for negotiation should the outcome of an MMP election mean National and Maori Party need to negotiate. National has never ever ever even hinted its policy is a bottom line that is non negotiable – in MMP you can have very few bottom lines.

Smart observers of the body politic would have noted that Pita Sharples some weeks ago said that John Key had told him in advance what National’s policy on the Maori Seats would be. I remarked at the time to a number of people that there was probably a conversation like this:

JK: So that is what we will be announcing this week
PS: Okay, and you understand we do not like that
JK: Yes, we understand how important this is for you, and that you will want to discuss this after the election should we be negotiating
PS: Yes, so you are saying you will agree to negotiate on this policy
JK: Of course – that would be a matter for after the election, but we understand you do not want this to happen.
PS: Our position is the seats can go, but only when Maori agree to that
JK: Yes, we understand that is what you would like

I am amazed anyone at all is surpised such a conversation is held. Now Pita Sharples and his Chief of Staff seem to have not appreciated the difference (which is important) between agreeing a policy will be negotiated post-election and agreeing the outcome of that negotiation. I don’t believe the outcome could or would have been agreed because it would be madness for National to do so – a negotiation is about concessions on both sides and the overall package – why give away a trump card for free?

From what has been said it seems Sharples suggested a possible outcome, and Key agreed that was a possible outcome and that has been taken as a more firm indication than was intended. People will paint all sorts of conspiracy theories around this, but I doubt few people can sincerely say they think National would actually agree to something without getting something in return. Why would you?

For those who don’t like the fact that parties have policies that they negotiate away, well that is called MMP.

Ben Thomas at NBR quotes Pita Sharples:

Maori Party co-leader Pita Sharples says his party receives signals “privately” that the National Party is not too committed on its position of abolishing the Maori electorate seats.

Host Martyn Bradbury put to Dr Sharples right wing commentator Matthew Hooton’s view that “the desire to dump the Maori seats was simply window dressing for the more meat-eating National fringe than genuine policy,” and asked whether the announced policy  suggested National were more serious about abolishing the seats.

Mr Sharples replied: “No, I think Mr Hooton is pretty close. That’s the same message we’ve been getting privately, that in fact it’s well off.”

I’m not surprised by the story. But one has to be careful about what it means.

I have no doubt the vast majority of National MPs think that the Maori Seats should be abolished. As do I for that matter.

However they are also aware that abolishing them would be difficult, to put it mildly.

And it is not a burning issue for most National MPs. There are many things they would like to do, and some are more important than others. Abolishing the Maori seats probably ranks a long way below higher economic growth, better standards in education, welfare reform and a better performing health system.

So if the price of a deal with the Maori Party is to agree not to abolish the Maori seats (amongst other things), then that is not going be much of a dead rat to chew on. It would be what is called an easy concession.

National has released its electoral law policy, which includes of course repealing the EFA:

• Repeal the EFA immediately after the election
• Reinstate the Electoral Act, as it was before the EFA, but transfer into it the provisions in the EFA dealing with donations
• Reform electoral law through a process involving all parliamentary parties and the public
• Having a binding referendum on MMP by 2011
• Begin a constitutional process to abolish the Maori seats once all historic claims have been settled, which is anticipated to be 2014

It is good that National is retaining the donations provisions of the EFA, while repealing the rest of the Act. This exposes as a lie that National oppossed it because of the increased transparency around donations. In fact National agreed to this in principle way back in 2006. And it was Helen Clark who removed from the draft bill, any significant provisions around increased transparency of donations.

The donations provisions are not perfect, and I would hope they would be part of the overall review of electoral law post 2008. But until that review is done, it is best to keep the transparency obligations while removing all the parts relating to spending, third parties, definition of an advertisement etc.

It is worth remembering that if the Government is re-elected then the EFA will remain. Labour will just make it more onerous, if anything.

An interesting collection in the studio. John Tamihere hosting with Matthew Hooton, Hekia Parata, Derek Fox and Chris Trotter.

Hooton pointed out that National has said it will offer the Maori Party a role, even if they don’t need them to govern. So up to the Maori Party if they want to play ball.

Derek Fox says up to National and Labour to decide what they will do, and they will decide after the election.

Chris Trotter says he used to think National and the Maori Party agreeing to work together in coalition or on confidence and supply as preposterous, but now it is more likely than the Maori Party supporting Labour!!!

Trotter also points out Maori Party will get National to drop Maori seats abolition policy as price of a deal.

Tamihere said Turia favours National, Sharples favours Labour, Flavell is all over the place and Harawira favours a more neutral cross-benches position. Not sure he would know, but an interesting analysis. Derek Fox has just said his analysis is completely at odds with the meetings he has been sitting in. Fox also says he is not conservative and rejects old labels like that.

I am enjoying Tamihere calling Trotter “Trotsky” and telling Matthew “Shut up Hootie” – something Kathryn Ryan probably wishes she could say occassionally

They then turned to Winston and Matthew has a superb quote:

He may use all this publicity to target the mad elderly Pakeha racist vote and get up to 5%

And this is Helen’s coalition partner he is describing!

Hooton points out that Maori Party would be one of many parties if a Labour-led Government is formed but with National could form a majority just with them probably.

Trotter says he thinks Labour does not want to deal with the Maori Party in his view, which is why they need Winston.  If Winston is not there, National can form a stable Government with 46% of the vote.

So Labour is choosing Winston over the Maori Party!

Fox advocates merit of staying on cross-benches to avoid the fate of most minor parties in Government.

An amusing mistake by Hekia Parata as she said John Key had ruled out United Future when she meant NZ First. They joked Peter Dunne had already started slitting his wrists! Parata was very good on the show, and demonstrated why she will probably be a Minister during her first term in Parliament.

The Press reports:

Sharples said the Maori seats should go eventually, but the impact of the Maori Party showed it was important to retain them for now.

If the debate is about when, not if, that is a good thing. As I have said previously, I think a lower threshold, as recommended by the Royal Commission on the Electoral System, is a more appropriate way to deal with issues of Maori representation than keeping the seats.

What would be interesting would be to ask Dr Sharples what criteria he would use to judge when the time was right for them to go.

This is one of the reasons why I have concerns over the Maori seats – the precedent it creates for other races to demand race based seats. We see this with the Waitakere Pacific Board calling for Pacific Island seats to be created on all Auckland Councils.

I see the strength of NZ is that we have so many races, and have lots of inter-race marriages so more and more Kiwis have some Maori blood, some PI blood, some Chinese blood etc etc. The US is a great example of how diverse racial backgrounds can create a strong country with an African American candidate for President, an Indian American Governor, Asian American Cabinet Ministers etc etc.

But they never have special seats for Americans of one particular race or bloodline. That is divisive.

I reject this statement especially:

Board chairman Taha Fasi said Islanders were lucky enough to have more than half of voters in Manukau City wards like Otara and Mangere, but the present system would never enable them to be voted become councillors in Waitakere.

“It does not matter how good our policies would be … at the end of the day the majority of voters are mainstream Pakeha and race is always an unseen and unsaid deciding factor,” Mr Fasi said.

This is a shameful view of fellow New Zealanders. The good folks of Wairarapa elected a Maori transsexual as their MP because they thought she was the best candidate. Gisborne and Dunedin have had Asian Mayors. Maori are actually over-represented in Parliament compared to their proportion of the adult population. Auckland City has a Pacific Island Councillor etc etc.

This shameful view seems to be shared by some in Labour:

The Pacific sector council of the Labour Party said Maori, Pacific and Asian communities ought to be represented at all levels of local decision-making through a mix of elected and appointed members.

But why stop there. Should South Africans get their own seats once they make up 1% of the population? And let us not lump all Asians in together. Chinese and Indians should have their own seperate seats. And hell the Scots hate being lumped in with the filthy English, so seperate electoral rolls for them also.

The NZ Herald reports on a paper by Canterbury University law professor Philip Joseph (a leading constitutional expert) on the Maori seats, calling for them to be abolished:

Professor Joseph said putting aside the seven Maori seats, the 15 other Maori representatives in Parliament put it a little under 2 per cent short of reflecting the 14 per cent national population.

However, with the Maori seats the current parliamentary representation equated to 22 per cent.

In response Matt McCarten says:

Political commentator Matt McCarten said Professor Joseph’s argument was “ignorantly racist” because it seemed to suggest there was a strict quota of Maori MPs acceptable in Parliament.

“You didn’t see a report when rich, white men were over-represented in Parliament. Now, it’s suddenly become a concern because Maori might soon wield real influence.”

Matt misses or avoids the point though. If there were no dedicated race based seats, then “over-representation” would not be an issue. I would not be at all concerned if New Zealanders elected a Parliament that had a particular demographic over-represented. Absolutely there should be no maximum quota of acceptability.

But the issue is that the rationale for having dedicated race based seats is justifiably called into question when that demographic is over-represented, not under-represented, in Parliament.

In a way it is similiar to the immigration issue. If there are no country based quotas in immigration (which I prefer) then I don’t care at all about the nationality or origin of our immigrants. But if there is a country based quota, it is legitimate to debate whether that quota is necessary or desirable.

There are reasons one can argue in favour of the Maori seats, beyond Maori being under-represented in Parliament (which has not been true for some time). Likewise there are arguments against the Maori seats (and my fear is the longer we retain them, the more we develop a Fiji type constitution). However taking the seats away, without fairly broad agreement from Maoridom is not necessarily a constructive thing to do. There are no easy answers, but it is an issue which won’t go away.

I think the best solution is that of the Royal Commission on the Electoral System which proposed they be abolished, but that the special status of Maori as tangata whenua be recognised by having no threshold (so getting around 0.7% of the vote should ensure representation) for Maori political parties. This would also solve the issue of the Maori seats causing overhang in Parliament which can distort the proportional result you are meant to have under MMP. This could be a big factor in 2008.

Before people react kneejerk, can I suggest people read the excellent Chapter 3 of the Royal Commission report which goes into the pros and cons and history of the seats.

One advantage of abolishing the Maori seats but having no threshold for Maori political parties is you could get more diverse Maori representation in Parliament. The main parties would still I am sure have Maori MPs, but you might have three or four different Maori parties all gaining one or two MPs. There might be a radical activist party for the Hone Harawiras. A urban Maori party for the John Tamiheres. A Iwi rights party for Ngai Tahu and supporters. Having no threshold for Maori Parties would encourage more diverse representation and in my opinion be a more effective way of guaranteeing Maori representation in Parliament without the negatives of having separate rolls and separate seats.

It is no surprise that Pita Sharples wants reserved seats for Maori in Auckland local government. I disagree of course in implementing more Fiji style representation. Sharples said:

“Like most places, Auckland’s record of choosing Maori through the ballot box is abysmal,” he said. “I could name lists of Maori people, national figures in anyone’s eyes, sporting icons, former MPs, leading academics and jurists, people with all the requisite skills, who have stood for council and been rebuffed.

Sharples should go ahead and release that list. Then it could be debated in context.

At the last local body election two Maori candidates for Mayors were defeated – John Tamihere and Willie Jackson. Now I actually supported both Tamihere and Jackson, but I don’t think anyone has suggested they got rejected because they were Maori. Is this what Sharples is saying?

Keith Ng blogs on an issue I planned to cover in more detail. What would happen if an overhang in seats for the Maori Party resulted in a Government being elected that got less votes than the Opposition?  Keith gives an example:

Anderton, Dunne and Hide gets <2% party vote between them. Maori Party gets all 7 Maori seats, with 3% of the party vote. We get a Parliament of 125 MPs. National + Hide + Dunne have 62 seats. Labour + Greens + Anderton have 56 seats.

In this scenario, the Maori Party could reverse a 6-seat gap with 3% of party votes.

That would be a fundamental slap in the face of proportional representation, and the scale of it would be made possible because of the Maori seats.

In this scenario, I would predict one of two likely responses.

The first is that MMP would be swept aside as its main virtue (and I support MMP over FPP) would be undermined.

The second is that the major parties would respond to this overhang situation by creating their own overhangs by creating party vote only parties and electorate seat only parties. Then all electorate seats would be overhangs (and we would ironically have a Supplementary Member style electoral  system) and the House would have 190 MPs!

All the media are full of the news that the latest Marae DigiPoll had the Maori Party ahead in all seven Maori seats.  But people should be aware of the very small sample sizes when you break it down into each electorate.

A helpful journalist has passed on the full data released by Marae/DigiPoll so I’m able to go into some detail on the results.

Party Vote

First let us look at the consolidated results for the sample of 1,003 Maori with 665 on the Maori roll and 338 on the general roll. This has a margin of error of 3.1%:

On the party vote,  the Maori Party is 38% and Labour 37%, followed by National on 15%.

Breaking into the two rolls, the margin of error is 3.9% for the Maori roll and 5.4% for the General Roll.

On the Maori Roll the party vote is 49% Maori Party, 33% Labour and 9% National. On the General Roll the vote is 11% Maori Party, 46% Labour and 29% National.

Now note that the proportions of Maori on the Maori and General roll are not actually 2/3 to 1/3.  The last Maori Option found 58% of Maori chose to be on the Maori roll and 42% on the General roll.  If you apply those percentages to the separate party vote for the general and Maori rolls, then the weighted party vote for all adult Maori would be Maori Party 33%, Labour 38% and National 17%.

Electorate Vote

Those on the Maori Roll were asked their electorate vote preference, in terms of party affiliation. 56% chose Maori Party over 28% Labour.

But it gets less clear when you break it down into the seven seats. 665 respondents over seven seats is an average of 95 per seat which is a whopping margin of error of 10.3%.

But that is not to say one can’t take some indications from the results. You can calculate for each electorate what the probability is that the leading candidate is in fact ahead of the other candidate.  Going through the seven electorates, we have the Maori Party result followed by the Labour Party result:

1. Te Tai Tokerau – 58% to 22% – 100% probability Maori Party leads
2. Tamaki Makarau – 53% to 27% – 99.9% probability Maori Party leads
3. Tainui – 45% to 37% – 80.6% probability Maori Party leads
4. Te Tai Hauarau – 69% to 22% – 100% probability Maori Party leads
5. Waiariki – 60% to 25% – 100% probability Maori Party leads
6. Ikaroa-Rawhiti – 54% to 31% – 99.4% probability Maori Party leads
7. Te Tai Tonga – 50% to 33% – 96.8% probability Maori Party leads

The Maori Party, beyond doubt, is leading in the four seats it currently holds. There is a greater than 95% chance that it is leading in Ikaroa-Rawhiti and Te Tai Tonga – and hence well placed to pick them up.

The one which is less certain is Tainui. There is a significant 20% probability that Labour actually leads in that seat. You really need a larger poll sample when the result is that close.

However one factor which may help the Maori Party is that the boundaries for Tainui have changed and are now less favourable for Labour in the new seat of Hauraki-Waikato. So that makes it a bit harder for Nanaia Mahuta to hold her seat.

My overall conclusion is that the Maori Party look well placed to win six out of seven seats, and the seventh seat is too close to call but leans Maori Party.

Other Issues

Satisfaction ratings for all respondents:

1. PM Helen Clark – 60% satisfied to 38% not satisfied
2. Government – 54% to 38%
3. Labour Maori MPs – 57% to 37%
4. Maori Party MPs – 76% to 18%
5. National Party Maori MPs – 44% to 41%

The most important issues for Maori on the Maori roll are Education 16%, Treaty Issues 14%, Health 11%, Tax Cuts 9% and Law & Order 8%.

For Maori on the general roll, is is Health 18%, Tax Cuts 16%, Law & Order  12%, Education 9% and Treaty Issues 3%.