Race discrimination is now prohibited by part 2 of the Human Rights Act 1993, and section 19 of the New Zealand Bill of Rights Act affirms that everyone has the right to freedom from discrimination. However, there are exceptions for affirmative action in certain circumstances.
Act says the Maori seats and the Maori electoral roll are a continuation of race-based legislation. Mr Whyte also points to consultation provisions specific to Maori under the Resource Management Act.
All of this is taking place against the backdrop of last year's Census, which showed that the number of New Zealanders born overseas now equates to one in every four New Zealand residents. Britain remains the main country for residents born outside New Zealand, but there is a growth in numbers from Asia, especially from India and China. Asian communities now constitute almost a quarter (23 per cent) of Auckland's population; a much larger proportion than the Maori population (11 per cent), or the Pasifika population (15 per cent). These Asian communities may constitute almost 30 per cent of Auckland's population by 2021. The combination of these minority groups is trending towards forming the majority, which is important given that democracy means majority rule.
The Royal Society of New Zealand's "Our Futures Te Pae Tawhiti" review of New Zealand's future based on the 2013 Census concludes that the ethnic diversity of 21st century New Zealand is significantly different from mid-20th century New Zealand, and the question is what impact that has on schools, workplaces, health services and government.
The review concludes that the greatest impact may be in the range of, and changing ideas of, what is important and what is valued. This ethnic diversity unique to Auckland also has implications for central government not treating local government as a one-size-fits-all, but recognising that Auckland will pose very distinct challenges to social capital, in particular. I am referring to social cohesion, trust, effective public institutions, rights and freedoms, cultural values and identity, as set out in the Treasury's report on Working Towards Higher Living Standards for New Zealanders.
Finally, if Colin Craig's Conservative Party does somehow form part of the Government, despite John Key's decision this week not to enter into a so-called "electorate deal" with the party, then New Zealand's demographic transformation may have democratic implications.
I can understand why John Key is nervous about having a party with binding referendums as a bottom line in any post-election coalition. Setting aside the constitutional issue of reconciling such referendums with parliamentary sovereignty, the problem would be majority support for a referendum proposal cutting taxes, on the one hand, with increased spending on social services on the other. Balancing the books would become impossible unless the Government had a clear financial veto when voters choose policy or legislative measures which are simply unaffordable. Also, as Edmund Burke once said, your parliamentary representative "owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion".
The trend of New Zealand's changing demography is towards a majority of Maori, Pasifika and other ethnic minorities. This may change what issues get majority support at binding referendums, and indeed what topics referendums may be held on.
For the supporters of binding referendums, it may well turn out to be a case of be careful what you wish for.
Mai Chen is a partner at Chen Palmer Public and Employment Law Specialists and Adjunct Professor at the University of Auckland Business School.
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