Chapman Tripp on entrenching the Maori Seats

Andy Nicholls, a Public Law specialist and partner at Chapman Tripp has sent through the following article as an Op Ed:

Maori Party faces big hurdles to the entrenchment of the Maori seats

By Andy Nicholls, Partner, Chapman Tripp, specialising in Public Law

Even if the Maori Party is king-maker after the elections with all the leverage that would confer, entrenchment of the Maori seats will still be beyond its grasp.

Entrenchment would require an amendment to the Electoral Act 1993. Some features of our electoral system are already entrenched: the three year term of Parliament, provisions relating to the setting of electorate boundaries, the voting age and the method of voting.

To change any of these features requires either a 75 per cent majority in the House or a majority of the votes cast in a public referendum.

All the other provisions in the Electoral Act, including the provisions dealing with the Maori seats, can be amended by a simple 50 per cent plus one vote.

The Maori Party has a policy of entrenching the Maori seats (and has the support of the Green Party for that proposal). This is a “bottom line” for the Maori Party in any post-election negotiations with National and labour.

However, to add the Maori seats to the list of entrenched matters will require more than a majority vote in Parliament. When entrenching something new, the Standing Orders and our constitutional conventions come into play.

The Standing Orders state: “A proposal for entrenchment must itself be carried in a committee of the whole House by the majority that it would require for the amendment or repeal of the provision to be entrenched.” In other words, a proposal for entrenchment can only be passed by the super-majority it proposes – in this case, 75 per cent.

The entrenchment rule was introduced by the non-partisan Standing Orders Committee following a review of Standing Orders in 1995. The rationale for this rule, of course, is that it is “inequitable” for a Parliament to pass a law under a simple majority vote that seeks to bind future Parliaments and generations by requiring them to assemble larger majorities to amend or repeal that law.

In constitutional terms, this is one of our important checks on majority decision-making. Minor parties like the Maori Party and the Greens will be alive to the importance of this constitutional rule.

On current polls, a 75 per cent vote in the next Parliament will require getting both National and Labour into the “ayes” lobby.

What this means for the Maori Party, even if it is in the position post-election to decide who gets to lead the next government, is it will have to somehow persuade both the suitor it is accepting and the suitor it is rejecting to support it.

That’s a big ask. Referendum anyone?

The second to last paragraph is the key one for me. The Maori Party would have to get both National and Labour to agree, if they want the Maori seats entrenched. That is a big ask indeed. And it also means that it can’t be used as leverage to play one major party off against another as it needs them both.

Thanks to Chapman Tripp for making the Op Ed available to help further public debate and understanding.