A week is not just a long time in politics. It is a long time for democracy.
Last Friday, Attorney-General David Parker released his advice on the Rotorua District Council’s proposals to rearrange local voting rights. The proposals found their way into a Government bill that passed its first reading earlier in the month.
To strengthen Māori representation on the Council, the bill proposes changes to the way the Council’s ten members are elected. Three would be voted for by voters on the general roll. Three would be elected by voters on the Māori roll. The remaining four would be voted for by all voters, whether on the Māori or general rolls.
However, there are only 21,700 voters on the Māori roll for the three Māori ward seats but 55,600 on the general roll for the three general ward seats. Consequently, voter representation under the proposed arrangements would not be proportional.
As Attorney-General, Parker was obliged to advise the Government on whether the bill is consistent with the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990.
Not surprisingly, he concluded it was not.
Section 19 of the Bill of Rights affirms the right to freedom from discrimination on the grounds set out in the Human Rights Act. Ethnicity is a prohibited ground of discrimination under s21 of that Act.
Parker’s conclusion that the bill’s distinction between voters of Māori and non-Māori descent was discriminatory was unavoidable. The bill favours voters of Māori descent because the number of elected Māori ward members would not be proportionate to the Māori electoral population.
But this conclusion was not the end of the matter. Where a bill infringes the Bill of Rights, it is still permissible if the infringement can be “demonstrably justified in a free and democratic society.”
However, based on the information available to him, Parker considered the provisions of the bill failed to meet this threshold. Instead, he concluded there “may be alternative representation options that limit the right to freedom from discrimination to a lesser degree, whilst still achieving proportional and fair representation.” A Māori ward with seats proportionate to the Māori electorate population is the most obvious alternative.
On Tuesday this week, the Deputy Prime Minister, Grant Robertson confirmed that the bill would now be “paused and reassessed.”
With the Attorney-General concluding that the bill “detracts from the key constitutional principle of equal representation in a representative democracy,” the pause should be indefinite.