Legal Beagle by Graeme Edgeler

There are four types of bills that Parliament considers: most bills are government bills, but there are also members bills, private bills and local bills. Members bills are relatively well know (some important ones have passed over the last few years), but these latter three types are often grouped together. On the days that the House considers members bills (every second Wednesday that it meets), it considers local bills and private bills first.

Private bills are law changes advanced to change the law for the benefit of a particular person or body. Recent private bills that have become Private Acts have included the Paige Harris Birth Registration Act 2022, which provides that Paige Harris's birth certificate can include her mother's name (Paige was born through surrogacy, a process which would have ended by Paige's mother adopting her, which was not possible as she tragically died before Paige's birth).

Local Bills are bills advanced by local or regional councils to allow them to do things general laws would not normally allow them to do. Because they have the democratic backing of an elected council, it is usual practice for such bills to go to select committee, even where there might be concerns about the bill (there are often good reasons Parliament might prohibit local councils from doing something!). Like presenting petitions to the House, being the MP responsible for a local MP does not even necessarily mean you support it, it's just something MPs will ocassionally be asked to do by local councils.

Parliament's Māori Affairs Committee is currently considering a local bill proposed by the Rotorua Lakes Council. The Rotorua Lakes Council says it needs the Rotorua District Council (Representation Arrangements) Bill because it wants to adopt a representation arrangement for its local council that provides for three councillors to be elected from a Māori ward.

If that was its aim, then the bill is unnecessary because the Local Government Commission has since approved a representation arrangement which allows exactly that. Instead, the bill is aimed not at ensuring that there are three councillors elected from a Māori ward, but is aimed at ensurery that the general ward elects no more than three councillors, despite representing over 2.5 times as many people.

The Council seems to have asked for some haste with its bill, and only two weeks were allowed for written submissions (including Easter). Abolishing equal suffrage - even just at local council level - should not be something that is this rushed. This is especially so when, because the bill is a local bill, the Attorney-General's report on the bill isn't available at introduction, and the entire time for consideration of the bill has passed without it being made available.

I anticipate the bill will fail the Bill of Rights assessment process, not least because the Council's rationale for the bill (.pdf) is non-sensical. The Bill also goes far further than is necessary to achieve any justifiable aim of advancing representation. In short, the bill is bad, and should not pass. I put in a submission a short while ago, which I have copied below (please ignore the numbering issues, which are not present in the original).

Submissions close at midnight tonight. You can have your own say here.

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The Māori Affairs Committee

Rotorua District Council (Representation Arrangements) Bill

Submission of Graeme Edgeler

Introduction

1. This Submission is made by Graeme Edgeler. I am a lawyer with a deep interest in electoral law matters, and I welcome the opportunity to comment on the Rotorua District Council (Representation Arrangements) Bill.
2. I am concerned about the approach the bill takes to both current and future reorganisations of the Rotorua District. The bill would abandon equal suffrage as a core principle at local elections for no major democratic or representational benefit, even accepting it on its own terms.
3. I am also concerned about the short time that has been made available for submissions on the bill. I had hoped the prepare my submission having the benefit of a section 7 report from the Attorney-General under the New Zealand Bill of Rights Act, but neither it, nor a Ministry of Justice assessment of the Bill is yet public.
4. The bill represents so important a change to the democratic underpinnings of our local electoral system that it should not be rushed in advance of this year’s local elections. As a bill advanced by a local authority, it is appropriate that it is considered, but the Committee should seek substantial advice before considering recommending its passage, including by inviting to appear before the Committee either the Attorney-General (if there is a section 7 report), or the Ministry of Justice officials who prepared any advice to the Attorney-General (if there is no section 7 report), as well as the Local Government Commission.

Problems with the Bill

5. There are a range of concerns arising from this bill, which suggest it is at best unnecessary, and at worst, profoundly contrary to established democratic principles.

1. The discussion within the Council, and the rationale the Council adopted in progressing its bill to this stage show a profound misunderstanding about the policy underlying both the Local Electoral Act and the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021.
2. Both the original Local Electoral law, and last year’s amendments are premised on creating equity between voters. The Council’s final decision not only runs contrary to this aim, it does so without any benefit for its aims of promoting co-governance.

The Bill is not needed to achieve the aim of Māori Representation on the Rotorua Lakes Council

8. Last year, Parliament passed the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, designed to make it easier for Councils to create Māori wards on a similar basis to Māori electorates.
9. Rotorua Lakes Council wants an electoral system where Māori ward voters can directly elect three of the 10 councillors on the Rotorua Lakes Council. It does not need a law change to achieve this.
10. The point of this bill is not to provide for a fair system of councillors to be elected from Māori wards, because under both the law as currently provided, and this bill, Māori electors would directly elect three of Rotorua Lakes’ councillors.
11. Instead, the point of this bill is to limit the number of councillors that general electors (both Māori and non-Māori) can elect, also to three, despite there being more than twice as many general voters.

1. The rationale that the council gives for this is that it doesn’t want individual voters to be voting for different numbers of councillors. There is nothing necessarily wrong with each voter voting in a ward with the same number of councillors, but it should not be adopted as the main criterion for determining how a council is elected, and should certainly not be placed above equity.
2. Moreover, this too could be achieved under the current law. A council with nine elected councillors, three elected from a Māori ward, and three elected from two general wards would also achieve this goal, if it thought desirable.
3. Rather, what the Council has decided is that it is important that the general electors all vote together, and seeks to artificially limit their collective voting strength to directly electing three councillors from a general ward. The existence of the at-large ward, in which all voters would get to participate does not greatly ameliorate this effect.
4. It is as if Rotorua Lakes Council decided that the voters of Hamilton were really a single community of interest, and so should all vote together in Parliamentary elections rather than as Hamilton East and Hamilton West, but to maintain parity with electors in the rest of the country, still limited them to one MP. Or that the Council decided that because the South Island elects 16 general MPs, and one Māori MP, the North Island should elect the same number.

Local Government Commission Determination

16. Importantly, two days after the House gave this bill its first reading, the Local Government Commission released its determination on the Rotorua Council’s back-up alternative. It approved an alternative arrangement: a Māori ward electing three councillors, a general ward electing six, and a rural ward electing one, all allowed within the current wording of the Local Electoral Act.
17. Unless the Council wishes to have that determination changed to provide for two general wards (perhaps Rotorua North and Rotorua South, etc.), this appears to fulfil Parliament’s aim in adopting the Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, in particular, by avoiding creating some votes which are worth more than 2.5 times the votes of others.
18. The explanatory note for the bill records:

Reasons for local Bill

The Council’s ideal representation arrangement is currently prevented by clause 2 of Schedule 1A of the Local Electoral Act 2001 as it does not satisfy the formula currently specified for calculating the number of Māori ward members of the Council.

19. The determination of the Local Government Commission shows this to be false: applying the formula as it has results in three Māori ward members: the number of Māori ward members that the Council wishes to have elected is possible under the current law. What is not possible under the current law is artificially limiting the number of general ward councillors.
20. Over-riding the determination of the Local Government Commission would also void its decision to create a Rural General Ward that recognises that the residents of the Rotorua District who live outside the city of Rotorua are a distinct community of interest whose interests deserve to be represented in decision-making (and which can be accommodated under the current legislation).

1. Indeed, passage of the law would create an ongoing issue that would prohibit future councils from reconsidering whether the rural areas of the Rotorua District should be separately represented in the future, with changes to this now not being a matter for consideration by the Council and confirmation by the Local Government Commission, but a matter on which Parliament would likely need to legislate should circumstances change.

Permanent Removal of the Local Government Commission from Involvement with Decisions over Representation in the Rotorua District

22. One consequence of the approach taken in this bill is that it needs to short-circuit the usual protections provided in the Local Electoral Act to enable affected locals to raise concerns about fairness and representation with the Local Government Commission.
23. Under clause 7 of the Bill, aspects of the usual process for consideration of election arrangements are essentially repealed for the Rotorua District.
24. Rather than locals affected by a Council representation decision being able to ask the expert Local Government Commission to consider the matter, their only recourse will be to approach the Minister of Local Government to object, and then, if necessary to judicially review the order-in-council which may follow.
25. The Local Government Commission, like the Representation Commission, was created for a reason, recognising that both local councils and national politicians have direct interests in the forms of representation that are adopted and under which they are elected. Removing consideration of the Rotorua District’s ongoing representation from the Local Government Commission, and giving it to the Minister is contrary the policy of the Local Electoral Act, and to principles of independence in the administration of elections.

1. Under clause 11 of the bill, the Minister, in concert with the Council would also be empowered to redraw boundaries, without any provision for concerns to be raised at the Local Government Commission, despite those protections applying in other councils.

Consistency with the New Zealand Bill of Rights Act

27. As noted earlier, this submission is written without the benefit of having seen a section 7 report, or Ministry of Justice vetting of the bill for compliance with the New Zealand Bill of Rights Act.
28. I anticipate that a section 7 report will be forthcoming, so do not submit at length here, as that report will hopefully mean further submission is unnecessary.[1]
29. Not all discrimination is unlawful discrimination. Discrimination can be justified by reference to a compelling state interest to advance that mean that the discrimination is justifiable in a free and democratic society.
30. One example of lawful discrimination would be the existence of Māori wards at local bodies, and of Māori electorates. The provision of such wards is discriminatory in the sense that not everyone is given the same choice, but because they are created on the same basis as general seats, and because they serve a population of the same size (with a margin for rounding), they do not create the type of disadvantage that would be difficult to justify.
31. That is not the case here. The deliberate down-weighting of general votes creates a grave discrimination that would need a compelling justification. None is advanced. I invite the Committee to seek further advice, including from the Attorney-General or Ministry of Justice as appropriate, and may address this in person if necessary.

Single Transferable Vote

32. One matter the Committee may wish to comment on in its report is the possibility that Rotorua Lakes Council should consider adopting the Single Transferable Vote system.
33. It is too late for the Rotorua Lakes District Council to do so in advance of the next local election, but many of the issues it says it wishes to address: fairness between voters, all voters having the same number of votes, etc. are solved by that system, which, within the margin possible for a 10-member council, is a wholly proportional voting system, and could ensure that sizeable minorities would not have their voices overridden.

Conclusion

34. Given the major issues with this bill, and the solution that arises from the recent Local Government Commission determination of a ward system that provides for fair representation in the Rotorua District, the Committee should recommend that this bill not pass.
35. Thank you for your consideration of this matter. I look forward to making what I believe will be my first submission to the Committee in person.

                                                                         Graeme Edgeler

[1]     As the right to participate in democracy in section 12 of the New Zealand Bill of Rights Act is limited to parliamentary elections, I anticipate any report will primarily address section 19: freedom from discrimination.