Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Bill (Consistent) (Sections 19, 27 (1)) [2024] NZBORARp 31 (15 May 2024)

Last Updated: 25 May 2024

15 May 2024

LEGAL ADVICE

LPA 01 01 24

Hon Paul Goldsmith, Acting Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Local Government (Electoral

Legislation and Māori Wards and Māori Constituencies) Amendment Bill Purpose

1. We have considered whether the Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Bill is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act).
2. We have not yet received a final version of the Bill. This advice has been prepared in relation to the latest version of the Bill (PCO 26206/6.6). We will provide you with further advice if the final version includes amendments that affect the conclusions in this advice.
3. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with s 19 (freedom from discrimination) and s 27(1) (right to natural justice). Our analysis is set out below.

The Bill

4. The Bill is an omnibus Bill that amends the Local Electoral Act 2001 (the Local Electoral Act), the Local Government Electoral Legislation Act 2023, and the Local Electoral Regulations 2001. The single broad policy of the Bill is to enable local electors to take part in their local elections and decisions about their local electoral arrangements. The policy proposals in the Bill include:
   1. reinstating polls on Māori wards and Māori constituencies
   2. requiring councils to hold a binding poll at the 2025 local elections if they established Māori wards or Māori constituencies since 2020 and did not hold a poll, and
   100. adjusting the statutory time frames for local elections to give more time for the postal delivery of voting papers.
5. The Bill gives effect to the Coalition Government’s commitment to reinstating the right to a local referendum on the establishment or ongoing use of Māori wards and Māori constituencies. This includes requiring a poll, at the next local body elections, on any Māori wards and Māori constituencies established without a poll.

Reinstating polls for Māori wards and Māori constituencies

6. The Local Electoral Act has provided a mechanism for local authorities to establish

Māori wards and Māori constituencies since 2002. If established, it enabled electors

enrolled on the Māori electoral roll to vote for candidates standing for Māori wards or

constituencies.1

7. As enacted in 2002, Māori wards and Māori constituencies could be set up by council resolution or by a binding poll. The poll could be initiated by either the council or a petition of at least 5% of electors.
8. We understand that these provisions were seen as a way of enhancing the representation of Māori, who had been under-represented as members of local authorities, and were aimed at increasing Māori access and participation in local government decision-making. The proposal was also intended to further the Crown’s obligations to its partner under the Treaty of Waitangi by improving and maintaining the Crown/Māori relationship at local government level.2
9. Analysis by the Department of Internal Affairs notes that Māori wards are intended to provide the option of dedicated, elected local representation for New Zealanders on the Māori electoral roll; increase the diversity of representation at the council table; and increase opportunities for Māori to participate in local authority governance and decision-making.3
10. In 2021, the provision for binding polls was removed.
11. The Bill re-enacts the pre-2021 provisions, so that local authorities must hold a binding poll on the question of whether a district or region should be divided into one or more Māori wards or constituencies if:
    1. the council resolves to hold a poll, or
    2. 5% or more of electors of the local authority demand a poll.

Transitional arrangements for Māori wards and Māori constituencies established without a poll

12. Since 2021, when the provisions for a binding poll were removed, a number of local authorities have established Māori wards or Māori constituencies (or have resolved to establish them for the 2025 election) without holding a poll. The Bill requires those authorities to either:
    1. disestablish their Māori wards or Māori constituencies (or rescind the resolution

to establish them), or

1. Māori wards are intended to represent a Māori population for a district council while Māori constituencies represent a Māori population for a regional council. Department of Internal Affairs (DIA), Regulatory Impact Statement: Binding Polls on the Establishment of Māori Wards, p. 7, at Cabinet-material-about-policy-decisions-on-reinstating-the-Māori-wards-poll-provisions.pdf (dia.govt.nz)
2. DIA, Regulatory Impact Statement, p. 7; Ministry of Justice, Preliminary Legal Advice: Compliance with the New Zealand Bill of Rights Act 1990: Local Government Bill 2001, 20011205-NZ-BORA- Advice-Local-Government-Bill-final-1.pdf (justice.govt.nz)

3 DIA, Regulatory Impact Statement, p. 7.

2. hold a binding poll alongside the 2025 local election on whether, from the 2028 local election, the district or region should be divided into 1 or more Māori wards or Māori constituencies.

13. Where local authorities resolve to disestablish their Māori wards or Māori constituencies (or rescind their resolution to establish them for the 2025 local elections) without a poll, they must decide how their representation arrangements for the 2025 election will be set, by either:
    1. carrying out a shortened representation review process, or
    2. reverting to their pre-2020 representation arrangements (or maintaining their existing arrangements). This option is available only:
       1. if those arrangements will provide fair and effective representation, or
       2. for a local authority that has resolved to establish Māori wards or Māori constituencies for the 2025 election, if they have completed a representation review since 2019.4

Removal of the requirement to consider Māori wards every 6 years

14. The Bill also repeals amendments to the Local Electoral Act that would otherwise have come into effect in 2025. These include a requirement for local authorities that do not have Māori wards or constituencies to determine every 6 years whether their representation arrangements should include specific Māori representation, and to engage with Māori and other communities before making that determination.

Consistency of the Bill with the Bill of Rights Act Section 19 – Freedom from discrimination

15. Section 19(1) of the Bill of Rights Act affirms the right to freedom from discrimination on

the grounds set out in the Human Rights Act 1993 (the Human Rights Act). Two factors must be met for discrimination to be identified under section 19(1) of the Bill of Rights Act:5

1. there is a differential treatment or effect as between persons or groups in analogous or comparable situations on the basis of a prohibited ground of discrimination; and
2. that treatment has a discriminatory impact (i.e., it imposes a material disadvantage on the person or group differentiated against).

16. Differential treatment will arise if the legislation treats two comparable groups of people differently on one or more of the prohibited grounds of discrimination. Whether
    
    4. Applies only to Group 2 local authorities - see clause 33 in New Part 3 inserted into Schedule 1 of the Local Electoral Act 2001.
    5. Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 CA at [55]; Child Poverty Action Group Inc v Attorney-General [2013] NZCA 402, [2013] 3 NZLR 729.

disadvantage arises is a factual determination.6 The Human Rights Act is intended to provide the basis for a ‘purposive and untechnical’ approach to determining whether prima facie discrimination arises, “and so to avoid artificially ruling out discrimination at the first stage of the inquiry”.7

17. Race and ethnic origins are prohibited grounds of discrimination under the Human Rights Act. We have considered whether any provisions in the Bill amount to discrimination on those grounds.
18. The first step in discrimination analysis is to identify persons or groups in analogous or comparable situations to whom differential treatment applies (or for whom differential effects arise). In Ngaronoa, the Court of Appeal explained that:8

The choice of an appropriate group or person with whom to carry out the comparison enables a determination of whether the person or group has been treated differently to another person or group in comparable circumstances. [...] We accept that a comparator exercise should not be treated as a formula to determine the answer to an allegation of discrimination. Comparator groups can be overly refined by building into the comparators the contested assumptions, thereby neutralising the comparator exercise. However, since discrimination is, in essence, treating persons in comparable situations differently, it is inevitable that the reasoning involved in such a process will include choosing a person or group for comparison purposes. As we will elaborate, it is not necessary to fix a single conclusive comparator.

19. It may initially appear that the amendments distinguish between Māori and non-Māori electors, as the establishment or continuation of Māori representation is subject to different procedural requirements from other forms of representation. However, we do not consider these groups are truly comparable or analogous in the circumstances. Electors of Māori descent may choose whether to be on the Māori or general electoral roll. Electors who are not of Māori descent are only entitled to be on the general electoral roll.
20. Having considered a number of comparator possibilities, including hypothetical scenarios, we consider that the most appropriate comparator groups are electors on the Māori electoral roll, and electors on the general electoral roll. The former group is likely to have its political representation as a specific community of interest affected by the Bill, whereas the latter group will not.
21. The group of electors on the Māori electoral roll are exclusively Māori. However, the group of electors on the general electoral roll are both Māori and non-Māori. Approximately 49% of electors of Māori descent choose to be on the general electoral roll.9 So defined, these comparator groups are not being subjected to differential treatment on the basis of their race or ethnic group. They are being subjected to differential treatment on the basis of the electoral roll they are on.
    
    6. See, for example McAlister v Air New Zealand [2009] NZSC 78, [2010] 1 NZLR 153 at [40] per Elias CJ, Blanchard and Wilson JJ.

7 Child Poverty Action Group, above n 5, at [48].

8 Ngaronoa v Attorney General [2017] NZCA 351, [2017] 3 NZLR 643 at [120]- [121].

9 Māori descent enrolment statistics, Maori-Descent-Enrolment-Stats-20240405.xlsx (live.com)

22. If no robust comparator can be found, it cannot be shown that persons in comparable situations are being treated differently and therefore that the essence of discrimination arises. We have considered the need for a ‘purposive and untechnical’ approach to discrimination analysis because of the likely effect of the Bill.
23. We note that in practice, binding polls have proven a barrier to the establishment of Māori wards in local authorities.10 Further, the Bill does not enable local authorities to retain their existing or proposed Māori wards or constituencies unless and until electors demand a poll or the local authority resolves to hold one. For these reasons, the Bill appears likely to result in a reduction in the representation of Māori as a specific community of interest, including by subjecting Māori as a specific community of interest to particular procedural requirements. We consider this is disadvantageous for electors on the Māori roll, in a local authority context, relative to their current position.
24. However, we consider that the difference in treatment for the establishment of Māori wards and Māori constituencies11 is not based on ethnicity, but on the basis of which roll Māori electors choose to be on. The distinguishing treatment is therefore not based on a prohibited ground of discrimination.
25. We have concluded that while the Bill is likely to reduce the effectiveness of a mechanism intended to address the under-representation of Māori interests in local government decision-making, the mechanism being altered is one to which only Māori electors have access. In that light, the Bill does not disadvantage Māori relative to a comparable group, and therefore does not discriminate on the basis of a prohibited ground of discrimination.

Section 27(1) – Right to natural justice

26. For completeness, we have considered whether section 27(1) of the Bill of Rights Act is engaged in so far as the Bill:
    1. states that the special consultative procedure under section 83 of the Local Government Act 2002 does not apply to a resolution to disestablish or rescind a Māori ward or constituency, and does not provide for notification, submission, or objection processes in relation to any such resolution, and
    2. prevents an objection under section 19P of the Local Electoral Act from being made in relation to a local authority resolution to revert to pre-2020 representation arrangements or maintain existing arrangements.
27. For the following reasons we have concluded that these provisions do not engage section 27(1). Local authority obligations under the Local Government Act 2002 relating to decision-making continue to apply, including the requirement to consider the views and preferences of persons likely to be affected by, or to have an interest in a matter.12
    

10 Between 2002 and 2019, 16 polls were held, of which one resulted in a Māori ward being

established. See DIA, Regulatory Impact Statement, p. 1.

11. Or the local body’s ability to disestablish a Māori ward or constituency or rescind their decision to establish.

12 Local Government Act 2002, s 78.

The Bill does not prevent local authorities from implementing their own processes to meet these obligations, or from opting instead to hold a poll.

Conclusion

28. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
    

Edrick Child

Acting Chief Legal Counsel Office of Legal Counsel