Legal Beagle by Graeme Edgeler


Legislate in haste...

Parliament has just finished an extended period of urgency. Nothing especially controversial was passed, although the mere fact of urgency is becoming more controversial, and one bill (now known to be the Policing (Storage of Youth Identifying Particulars) Amendment Bill) was so secret that the public couldn't even be told its name in advance.

Another of the bills was the Duties of Statutory Officers (Census and Other Remedial Provisions) Bill. Most importantly, it regularises the cancellation of the census, which the Statistics Act required to be held this year. Interestingly for me, Maurice Williamson, as Minister of Statistics is quoted in the Herald as saying "It also means the Maori Electoral Option and the review of electoral boundaries can still go ahead before the 2014 election."

But it's not clear that he's right. New boundaries will be able to be drawn, but whether Māori will actually get the option to change between electoral rolls that we would ordinarily expect (it usually happens just before the boundaries are drawn) is far from certain.

The holding of a census has a number of effects in the Electoral Act:

  • The terms of office of members of the Representation Commission expire on the date of the first periodical census held after they were appointed (at which time new members are (re)appointed).
  • The Representation Commission then draws new boundaries which it does “only after each ... periodical census and on no other occasion.”
  • The Representation Commission (with slightly different membership) also draws boundaries for the Māori electoral districts which it again does “only after each ... periodical census and on no other occasion.”

    No problems there. After each census, which we hold from time to time, new boundaries are drawn. If there isn't a census, we don't draw new boundaries. The next census will just be held (and the new boundaries drawn) a period of seven years after the previous one, rather than the more usual five years.

    But there's one other consequence that the holding of a census usually has in the Electoral Act: it triggers the Māori Electoral Option. Section 77 of the Electoral Act requires the Minister of Justice to “in every year that a quinquennial census of population is taken, but in no other year, publish a notice [specifying ... a period of 4 months during which any Maori may exercise the option...].”

    Note the difference: boundary determination happens after the periodical census, but the Māori option happens after a quinquennial census. There is a Latin phrase, taught to first year law students, but forgotten by me, which notes a basic rule of statutory interpretation: if Parliament uses a different word, it means a different thing. And even if, in New Zealand, the periodical census is usually the same thing as the quinquennial census, this may be one occasion where they differ.

    And you don’t even need that rule. You can just look at the words of the Act and it seems pretty obvious: a Māori option may only be held in the year a quinquennial census is held - will the 2013 Census be a quinquennial census? As it will have been held seven years after the previous census, I don't see how it can, and this implies that no Māori option can occur in 2013.

    This could have been put beyond doubt by a simple amendment. First, section 77 of the Electoral Act just shouldn't use the word quinquennial, but even if Parliament didn't want to amend the Electoral Act, they could have put it a simple sentence: “for the avoidance of doubt, the 2013 census is a quinquennial census.”

    Now, if someone raises the issue in a couple of years' time, I'm pretty confident we'll just muddle through. Someone will assert that they have legal advice that this is permitted, and everything will be fine. But we shouldn't have to rely on this when a simple amendment could have been inserted by a select committee.

    This law needed to pass this year. And I’ve been looking out for it, because when the decision was announced after the Canterbury Earthquake that the census would be cancelled I was like “umm don’t you need to pass a law to do that?”. But given that it was immediately obvious that a law would be needed, and this bit of the law comprises just two sections, it should have been able to be introduced before now, and could have received a short select committee hearing.

    Whether I am right – or if I am not – there is no reason the public should have been prevented from having the opportunity of having some input on this bill. Legislating in haste may sometimes be necessary, but it is always a bad idea.

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