Part 3: The Data and Census Act 2022:
The Data and Census Act 2022 can be seen here:
The provisions of the Act are based on the principles and policies set out in the 2018 Stats NZ public discussion document - Towards new data and statistics legislation. This was discussed in Parts 1 and 2. The census form that we are all required to sign is based on the principles and policies in the discussion documents and the provisions of the Act.
As stated in Part 1 the Articles of the Treaty of Waitangi are not binding in New Zealand law. The Treaty is part of International Law and has to be incorporated in New Zealand statute law to become enforceable in New Zealand courts. However no Treaty clause has been entered into a census statute since the Treaty was signed in 1840.
As a result of the surge in Treaty rights and obligations - mostly based on unfounded claims - Stats NZ entered into the Mana Orite relationship with Maori to add to the responsibilities that it considers were binding on it under the Treaty. Parliament has obliged and several clauses were included in the Data and Census Act 2022 making those obligations and responsibilities part of New Zealand law.
In
order to recognise and respect the Crown’s responsibility to give effect to the
principles of te Tiriti o Waitangi/the Treaty of Waitangi,
this Act—
(a)
imposes
duties on the Statistician as set out in section 14:
(b) sets out in section 15 the
principles of the engagement with Maori provided for under sections 19, 35, and 91:
(c) provides in section 17 the
ability for the Statistician to delegate the Statistician’s functions and
powers:
(d) in section 19, requires the Statistician to engage with Maori when
preparing a draft multi-year data and statistical programme:
(e) in section 35, requires the Statistician to engage with Maori before
determining the manner of taking, and the data to be collected in, a census of
population and dwellings:
(f ) in section 91, requires the Statistician to engage when setting
a standard:
(g) provides, in Part 5,
criteria and requirements (for those authorising access to data for research
under that Part) that are designed to reflect Maori interests in the use
of data for research.
Section 4 recites the fact that in order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty, it imposes certain set obligations on the Crown and on the Statistician, as an agent of the Crown. This is a Treaty clause where the Crown's responsibility for the Treaty principles is recognised, and the specific obligations arising from those principles are set out in detail.
The recital completely misrepresents the situation. There is no such responsibility in the principles of the Treaty, and the Treaty itself is not binding in law. Likewise many of the obligations arise not from the principles of the Treaty but from an the Mana Orite agreement entered into with Maori which created completely new obligations.
However, with parliament being supreme, the obligations arising from the principles of the Treaty are now incorporated in legislation and therefore set in concrete as part of the law of New Zealand.
In defining the application of the Treaty principles as specific obligations Parliament has ensured that they cannot be challenged in court because of a lack of clarity.
The only possible challenge in court is on the basis that although information collecting and a census may be a taonga under Article 2, it should not interfere with the general business of government under Articles 1 and 3 which should be carried out without any discrimination based on race.
In addition. the extension of the Crown's responsibility in the Mana Orite agreement is gratuitous in the sense that it is not mandated by any principle under the Treaty, but the Crown and Stats NZ dishonestly incorporates it in a Treaty clause to make it legally binding.
Summary
Not only that, New Zealand prides itself on being a modern, multi-ethnic, liberal, democratic state where the rule of law reigns supreme. That means equal rights and one person one vote. To suggest that the collecting of data and holding a census in a modern democracy creates special rights for one race above all others, is simply not acceptable.
It goes beyond that. Stats NZ misrepresented the basis on which it granted special rights to Maori. In so doing it has discriminated against the other people in New Zealand based on race, a prohibited ground of discrimination under section 21 of the Human Rights Act 1993.
Likewise, the United Nations Declaration of Human Rights (of which New Zealand is a signatory) includes:
Article I: All human beings are born
free and equal in dignity and rights.
Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race,
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD), ratified by New Zealand in 1972, defines racial discrimination as:
“any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
The collection of data for a national population census certainly meets those requirements.
- Should we become part of a census process which misrepresents the provisions of the Treaty of Waitangi, which invents principles of the Treaty that have no basis in law, and where an arrangement has been entered into granting preferential treatment to one specific race in respect of a general activity of government which requires all people to be treated equally?
- Should we comply with a process which is blatantly racist which breaches our own Human Rights Act, the United Nations Declaration of Human Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination, and which treats the rule of law as an irrelevant consideration?
_________________
