Entrenchment

There's been a lot of discussion over the last few days about the Maori Party's demand to entrench the Maori seats, and the response of various political parties to it. Helen Clark has said that she will entrench the Maori electoral option, which is being called meaningless in some parts as it does not protect the seats themselves. For various reasons, I think its a bit more complicated than that.

The Maori seats are effectively created by three chunks of the Electoral Act 1993:

• Sections 76 - 79, covering the "Maori option". Section 76 says that Maori may enrol on either the general or Maori roll, and that they can choose when they register or from time to time under s77. Section 77 specifies when the option must be held (after each census, unless its an election year, in which case there is a one-year delay) and requires the Registrar of Electors to publish the results. Section 78 deals with the administrivia, while section 79 bars transfers between the rolls except by exercise of the option (this is necessary to keep electorates within quota).
• Section 45, which requires the Representation Commission to divide the country into Maori electorates, using the same rules used for general electorates in the North Island (except that unlike general electorates, Maori electorates can span the islands).
• The definition of "Maori electoral population" in section 3 (1).

Superficially, entrenchment of one part without the others undermines the whole exercise. There's no point in having Maori seats if there is no Maori electoral population, and there's no point in having Maori electors if there are no seats to represent them. However, an existing entrenched provision - the definition of "general electoral population" specifically excludes the Maori electoral population. So if a mechanism to establish that population (or even just the definition itself) is entrenched, then any effort to remove the Maori seats will have the effect of completely stripping Maori of representation (and good luck with that; it'll make the foreshore & seabed look like a rotary meeting). So, we might be able to get by with entrenching only the Maori option after all. However, the mechanism by which the number and boundaries of general seats is determined is also entrenched, so for reasons of equality alone, we should entrench s45.

How much do we need to entrench? Historically, New Zealand has adopted a minimalist attitude to entrenchment. We've entrenched the definition of elector and the machinery for dividing seats, but none of the provisions which say e.g. that people actually get to vote. We leave the administrivia out of it, on the basis that we will probably need to change it at some stage. This obviously creates vulnerabilities if a government really wants to be evil. But if we get to that stage, we should be putting heads on spikes anyway, making the point rather moot. This suggests that we should protect s45, 76 and 77, but not 78 or 79.

To lend some concrete shape to the proposal, here's the bill:

Electoral (Entrenchment of Maori Seats) Amendment Bill

The Parliament of New Zealand enacts as follows:

1. Title
This Act is the Electoral (Entrenchment of Maori Seats) Amendment Act 2009

2. Commencement
This Act shall come into force immediately upon receiving the Royal Assent.

3. Purpose
The purpose of this Act is to amend the Electoral Act 1993 to entrench the Maori seats.

4. Principal Act Amended
This Act amends the Electoral Act 1993.

5. Maori seats entrenched
Section 268 (1) is amended by adding the following paragraphs:

"(g) section 45, and the definition of the term Maori electoral population in section 3(1), relating to Maori representation.

"(h) Sections 76 and 77, relating to the Maori option and its periodic exercise."

As a proposal for entrenchment, this would have to pass by a 75% majority under Parliament's Standing Orders. Which means it would effectively require the support of both major parties. And with National opposed, that looks unlikely.