Retrospective legislation being used to tackle personal bug bears

Maori party politician Hana-Rawhiti Maipi-Clarke is the nation's youngest elected MP. PHOTO:...
Maori party politician Hana-Rawhiti Maipi-Clarke is the nation's youngest elected MP. PHOTO: Supplied
Barriers to Māori representation in local and regional government have been dismantled very slowly over the last decades.

One of the biggest barriers was the old law that required a council to hold a binding referendum on whether there should be Māori ward or constituency if 5% of voters wanted a referendum. Councils could create other kinds of wards or constituencies without a binding referendum.

That was the old law. It was a racist law. Why? Because it was a law that created a barrier only to Māori representation but not to other kinds of representation.

In 2021 the government of the day consulted on the proposal to change the old law. They publicly notified the change options and directly consultation with relevant agencies and councils.

That old law was repealed in time for the 2022 local body elections. Doing so created a level-playing field, so that where a council wanted to created a new seat for any reason the process for doing so was the same regardless of the purpose of the seat. That led to about half of all territorial authorities establishing a Māori ward. There are six Māori constituencies in regional councils and 29 Māori wards in local and district councils.

These wards have all been subject to both community consultation and to council decision-making. Communities, rightly, have had the opportunity to consider, discuss and respond to the plans for new wards, both Māori and general wards.

Councillors have had to engage with their people and consider their views before making a decision. This means the wards have been created in accordance with the law, in consultation with the community and consistently with the principle of equality before the law.

Local Government New Zealand reported that in the 2022 local body elections, more than 140 candidates had put themselves forward for Māori ward and constituency seats across 34 councils. They said this would mean more than 60 new Māori ward councillors across the country. Each one would have been properly elected under the law and, we expect, are representing their communities accordingly.

The present government intends to legislate to retrospectively require new Maōri wards to be subject to a binding referendum before the 2025 council elections. They argue communities should decide whether there is Māori representation. They say if councils don’t want a binding referendum they should abolish the Māori wards.

I, and many others, argue that such retrospective legislation is racist. Why?

Because the government is only imposing the binding referendum obligation over Māori wards and not any other representation decision-making by councils. Because the government is, on one hand, arguing for laws that don’t treat people differently yet imposing a law that will disenfranchise Māori voters.

Legislation that intentionally discriminates a specific group of people based on their ethnicity is racist. It is not as if Māori have extra votes either — they have just one vote for a ward like most others.

The only people that do have multiple votes are those wealthy enough to own properties in multiple council territories.

It is worth noting other concerns with this legislative intention. The coalition government is arguing for greater democratic engagement in local government but not in relation to its own decisions.

It will argue, for instance that the decision to make over 3000 people unemployed, many of whom will be family of those reading this newspaper, was put to the people at the election. Government ministers will say that they are therefore carrying out the will of the people who elected them.

Local government have rightly argued the same in relation to the creation of Māori wards. The territorial authorities consulted their communities first before then deciding whether to create a Māori ward. Then there were elections that put their decisions to the test.

Those elections have not resulted in public pressure to backtrack over Māori wards. The loudest backlash is in fact coming from individual government MPs who don’t like the idea of Māori wards.

But government MPs should not be using their extraordinary legislative power for such petty purposes. Local government has roundly condemned central government’s plan for retrospective legislation as a "complete overreach" of their powers. In short, the MPs’ behaviour is fundamentally anti-democratic.

Communities have pursued the correct, legal and equitable process for establishing Māori wards. Government MPs should not be interfering in this with retrospective legislation.

If they want change they should, like all other people who are citizens of local councils, be organising and campaigning for change at the local level. To use their legislative power for their personal bugbears is an abuse of that legislative power.

 Metiria Stanton-Turei is a law lecturer at the University of Otago and a former Green Party MP and co-leader.