Smith NickNew clause 7A 19ZGA Process for Disestablishing Māori Wards or Māori constituenciesHon Dr NICK SMITH (National): In seeking the support of the committee for this amendment I want to draw the attention of the committee to the existing law. The existing law allows a council to resolve a number of questions when it does a representation review. It says that a council can choose to have wards or not quite explicitly. It actually gives them the option to create a mixed-member representation system similar to our Parliament where you have some members elected for specific areas and some members at a general level but the significant part of the wording of the clause is that it may or it may not. Section 19Z of the principal Act though only allows the council to explicitly go in one direction and that is to create a Māori ward. I'll read the section very explicitly to the House: Any territorial authority may resolve that the district be divided into 1 or more Māori wards" and then further on it goes on and says that any regional council may resolve to create a separate Māori constituency or a parallel provision. So the key point is that when it comes to creating a general ward a council can resolve to or not. On creating STV or first past the post it's an either/or but the explicit term of the law is that there is only the option for the council to resolve that it be divided.Now I've spoken to a number of lawyers about this and said "Well this is a bit odd—a bit odd for the law to say that councils can create them but can't dissolve them." It is true and I've read the advice of the officials who point out in later clauses "Well it implies that you might be able to resolve to reverse and to resolve not to have Māori wards." Well we on this side of the House would like the law to say as it means and if the intention of the law is to say that any council can resolve to establish Māori wards and that equally councils can resolve to disestablish Māori wards then let's provide that power quite explicitly and that is as clear and simple as this bill does.Now this provision in my name is absolutely consistent with what the Minister has said when she has described the intent of the bill. She says "This is all about letting communities make the decision." But it's a pretty odd power if it says "Well"—I might even call it the "Henry Ford" clause and that is you've got the choice of a car and you can have the colour black black or black. What effectively the provision in the law at the moment says is that "Well you can resolve to do this but you can't resolve not to do it." And so my plea with the committee is: let's do as we say. Let's ensure that the law is quite explicit. I can tell you one of the reasons for the Minister that it's important: there might be councils—and I've made decisions sometimes as a Minister and I know this House has sometimes made decisions and that is "I'm not sure about this but I'll give it a try. Let's see how it works and let's have the option to undo it if it does not work." Some people may remember for instance that when this Parliament made the hugely significant decision to allow a referendum on establishing MMP we quite specifically—the Key National Government—provided the option for people further down the track to say "Well do you want to stick with your decision?" So what I am arguing in the adoption of this new clause 7A is that communities should have the choice. They should have the choice to establish Māori wards and they should have the explicit choice to disestablish Māori wards.Now if the Government's intention opposite was actually—their true position is actually the Māori Party position and the Māori Party to give them credit are nice and upfront. They say "All councils should have Māori wards Māori constituencies." That's fair. I understand your position. You're being true to your word. With the Māori Party they say what they mean and they mean what they say. My worry—Christopher Luxon: They're open and transparent.Hon Dr NICK SMITH: They're open and transparent. I remember when this Government came to office they wanted to be open and transparent. It's a bit crumbly around the edges these days but we would ask the Government to live up to that and back this new clause 7A because it does do as the Minister says is her intent and that is that actually what we're trying to do with this bill is have the same provisions for general and Māori wards. It's absolutely clear.I'd love to read out the very specific provision in the Local Electoral Act that says a council may resolve to create general wards or resolve not to create general wards. Well why not use the same language when it comes to Māori wards? Let's say in the law that councils may resolve to create Māori wards or they may resolve not to create Māori wards because I've just got this sneaky suspicion going by the Government's record on the other clauses where they'd said things likes of "You can have appeal rights but not on the Māori wards. You have to give public notice but not on the Māori wards. You have to be able to have public submissions but not on the Māori wards." That raises me being suspicious as to really whether the Government is true to its word of simply wanting to provide the parallel. So what we've seen with this bill is not equivalent provisions not provisions that truly give councils the option to do (a) or (b) but really provisions that say "Actually you can just do (a)."So this amendment proposing new clause 7A would make it absolutely explicit for councils that they can resolve. It may well be I say to the Minister that councils might be more relaxed about establishing Māori wards if they know that there is quite an explicit provision that if they feel it doesn't work if they feel it's divisive they can then pull it back and undo it. I'm not necessarily arguing that is the case. What I will argue is we as lawmakers need to play with a straight bat. There is no good reason for a biased position a biased clause. Section 19Z(1) of the principal Act saying that a council "may resolve that the district be divided into 1 or more Māori wards for electoral purposes." should be covered by a parallel provision that says that they can resolve to disestablish one or more Māori wards.Then just to get into the legal argument I just don't buy the argument that section 19Z(3)(c) which sort of implies you might be able to do it is good enough. New subsection (3)(c) of 19Z says that if a further resolution is made then that needs to be considered. Well that's not very strong. That's not very explicit. I have spoken to lawyers who say there is doubt in this area. Good law is certain law. Let's make absolutely explicit in the Local Electoral Act that the intent of this Parliament is that councils both territorial authorities and regional councils have the choice to do both.I want to make plain that this amendment in my name is like patching up a bit of a mess. I'm not saying it's the solution. If it really was a solution we would have adopted the public notification we would have adopted the same expiry clause we would have adopted the appeal process—we would have done all those things. But it makes the bill better and surely that is our job in Parliament. If Parliament's intent is that councils are to have genuine choice just like we've got with STV versus first past the post just as with the decision that councils can make about creating wards or not and just as councils can make a decision whether they want to have a mixed-member system councils should have the power to disestablish Māori wards."