NZ Council for Civil Liberties

Submission: Independent Electoral Review

Published · Updated

About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.

Introduction

2. Universal suffrage is the most basic criteria for an election to be deemed democratic. The Council supports the right of all New Zealanders and residence visa holders to vote in elections. In a democratic society, the denial of the right to vote to any group of people devalues citizenship, connection to the shared wellbeing of society, and possibly leads to unreflective electoral outcomes. Restrictions on voting rights should be very tightly limited to mental impairment.

3. This submission focuses on voting rights, and the ability to exercise that right. We also address the question of how long the parliamentary term should be.

Parliamentary term

4. Question 1.5 of the consultation document asks what the term of Parliament should be. The paper explains that the parliamentary term was originally five years long, before being reduced to three years in 1879. Attempts to increase the length of the term to four years were rejected by referendums in 1967 and 1990.5.

5. It is likely that the Independent Electoral Review has been established to explore the social licence for another attempt to be made to extend the parliamentary term to four years. The other issues are no doubt of interest to people, but this is the main issue of concern to the government.

6. The Council is not opposed to this conversation taking place: it is healthy for a democracy to reflect on how well – or not – it is functioning. In a representative democracy (as opposed to a more participatory one where people are chosen through sortition to spend time performing a civic duty of legislating or scrutinising the executive), this decision does not belong to the representatives, but to the public. We would oppose an attempt to make a change in the parliamentary term by a vote in parliament: a constitutional change of this significance should be decided by a referendum, preferably following a recommendation from a Citizens’ Assembly.

7. The Council’s response to question 1.5 is informed by our experience of interacting with Parliament, and government, and we set it out below so that the Review can understand why we have given the answer we make. This mainly takes two forms. First, making submissions to select committees on bills they are considering. Second, making submissions to government departments on consultations they are running. From time to time a rarer third form of interaction takes place, where a government department actually attempts to use more deliberative and participatory approaches to involving the public and civil society. Mostly, these are poorly done, even if well intended.

8. Government departments may argue that the reason their consultation periods are short, and that they do more participatory public engagement poorly, is because the three year parliamentary term does not create the conditions for, or incentivise, longer consultation or higher quality, more empowering, public participation exercises. There is some merit in that, although it does not excuse all the poor practices we suffer. Other political and public management incentives and disincentives no doubt also play a significant role, which are not relevant to the Review’s consideration of electoral law.

9. Our experience of making submissions to select committees on bills, and occasionally extending this advocacy to the later stages of parliamentary consideration of legislation, is more closely connected to the question of how long a parliamentary term should last.

10. Over the last two years the Council (which has no paid staff, just volunteer committee members) has made more than 16 submissions on bills. We were also one of the few groups asked by the government in 2020 to respond overnight to its draft COVID-19 response legislation, which we did.

11. It is safe to say that our experience has taught us to have little confidence in the select committee scrutiny of legislation. We have made a submission to the current Review of Standing Orders which goes into this in detail.[1] At the heart of the problem are three issues:

  • the small number of MPs outside the executive who are eligible to serve on select committees means they are overworked and have insufficient time to read the (increasing numbers of) submissions, which has an obvious impact on the quality of consideration given to them and the bill itself;
  • the balance of parties on each committee – each has a government/coalition party majority, ensuring opposition MPs feel like there is little chance they will be able to amend the bill, reducing the incentive for them to dedicate effort to submissions and improving the legislation; and
  • the fact that analysis of the submissions for select committees is not, in the overwhelming majority of cases, performed by independent officials working for parliament, but by the same government department officials who wrote the legislation.[2] This severe conflict of interest is not, in our experience, sufficiently mitigated by guidance and policies. In our experience it has led to suggested amendments not being mentioned in the department report to the committee, presumably because officials don’t think they are in accord with government policy, or because accepting them will mean all the work of taking the matter back to Cabinet for approval.

12. These add up to legislative scrutiny that entirely favours the executive and in no way demonstrates a healthy, independent, high-functioning legislature. The former Speaker, Trevor Mallard, in his valedictory speech to Parliament, and the comments of the Clerk of the House to the Standing Orders Review on 10 November 2022, both indicate that aspects of these issues also cross over into the conduct of select committee inquiries, and opposition MPs have expressed concern about the majority party MPs blocking attempts to call the witnesses they wish to examine.

13. Other aspects of parliamentary procedures and Standing Orders, and poor practices around New Zealand Bill of Rights Act reports on legislation, also favour the executive getting its business through the House. The legislature is not large enough, nor sufficiently well resourced to do what we expect of it.

14. At the Standing Orders Review Committee hearing on 10 November 2022, the quality of parliament’s functioning was clearly linked to the number of MPs. It is the small number of MPs outside the Executive that leads to them being overworked, and with insufficient time to perform their scrutiny and accountability functions adequately. Unless we expect MPs to spend less time on constituency business or meeting people and organisations outside Parliament, the only way to create more time for this is to increase the number of MPs elected to Parliament in order to divide the workload amongst more people.

15. At the Committee, former Prime Minister Sir Geoffrey Palmer indicated that he thought Parliament needed to be increased to at least 150 MPs in order for there to be sufficient members to perform the Legislature’s functions properly. A National Party MP on the Committee responded to this point by suggesting that if the number of MPs had increased in line with ideas set out in the 1986 Royal Commission on the Electoral System, we would now have 180 MPs.[3]

16. No member of the Committee demurred from the National MP’s suggestion that the only reason we do not already have a larger number of MPs in Parliament is because politicians are too scared to propose the idea to the public. In the same vein, we are perplexed that the Terms of Reference for your Review explicitly rule out examining whether we should increase the number of MPs. Perhaps it is because, like the MPs, the Government is so scared of possibly having to make the case for an increased number of MPs, or countering such a recommendation, to even allow the idea to be considered? The Council agrees with Sir Geoffrey that we have too few MPs to be able to perform the tasks necessary for Parliament to operate at a high standard and retain public trust and confidence.

17. There is another issue, which although likely to be a matter for political parties to address, possibly in conjunction with the Standing Orders Review, does affect the public perception of Parliament, and therefore potential support for a longer parliamentary term. The practice of party whips casting the votes of MPs – not just list MPs, but also electorate MPs – undermines the idea that people are choosing a person to represent them in parliament with their electorate vote at an election. We understand that people will often choose their electorate representative based upon which party they are standing for, but note that in the United Kingdom and many other countries, whips do not cast the votes of electorate MPs. The New Zealand Parliament’s whipping practice, combined with the ‘waka jumping’ legislation that can see MPs expelled from Parliament for ‘disloyal’ behaviour, undermines opportunities for MPs to represent the public according to what they think is the right thing to do, and not just by chilling their speech. People do not see any point in lobbying their MP to vote against their party line on legislation, which damages the sense of an MP being accountable to their constituents. The Council believes that the excessive power of party whips creates cynicism about our democracy, which is not healthy for our society in the long run.

18. Overall, while great play is made of our Parliament being supreme in Aotearoa’s mostly un-entrenched constitutional arrangements, we believe it is weak, has too few members, is significantly under-resourced, does not function well, lacks independence, and is therefore dominated by the executive. We need to invest more in our Parliament to improve the quality and independence of its work, and thereby our democracy.

19. Therefore, while we understand the benefits that may result to, and from, the executive from having a four year parliamentary term, we do not think it is appropriate now to increase the term beyond three years. A better path to a higher quality, more independent legislature is to:

  • Strengthen the legislature’s independence and functioning, through:
    • ceasing to use government officials to analyse select committee submissions; and
    • other changes in how select committees and other aspects of Parliament operate; and
  • Increase the number of MPs.

Only then will it be appropriate to revisit the question of how long the parliamentary term should last. In short, Parliament needs to lift its performance from a D to an A+ during 3 year terms before the executive is rewarded with a longer term in office.

Voting rights for prisoners

20. The New Zealand Council for Civil Liberties was surprised by the failure of the Electoral (Registration of Sentenced Prisoners) Amendment Act 2020 to address the High Court’s 2015 declaration that section 80(1)(d) the Electoral Act 1993 is inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA).

Voting is a Human Right

21. Article 21(3) of the Universal Declaration of Human Rights, to which New Zealand is a signatory, states that:

“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”[4]

22. Article 25 of the International Covenant on Civil and Political Rights, which New Zealand has ratified, states that “Every citizen shall have the right and the opportunity … to vote.”[5]

23. Section 12 of NZBORA states that “Every New Zealand citizen who is of or over the age of 18 years … has the right to vote.”[6]

24. The rights and freedoms set out in NZBORA may only be limited under section 5 of the Act where it is ‘reasonable’, ‘prescribed in law’ and where the limitation ‘can be demonstrably justified in a free and democratic society.’

The Prisoner Voting Ban violates Human Rights

25. In 2010, the Electoral Act 1993 was amended by the Electoral (Disqualification of Convicted Prisoners) Amendment Bill, to add section 80(1)(d), the prisoner voting ban. The Council opposed the prisoner voting ban before the Select Committee in 2010, on the grounds that it violated section 12 of NZBORA.[7]

26. The Attorney-General at the time, Chris Finlayson MP, declared the 2010 Bill inconsistent with the NZBORA, stating, “I consider that the Bill appears to be unjustifiably inconsistent with the electoral rights affirmed by section 12 of the Bill of Rights Act.”[8]

27. In 2015 the High Court, in Taylor v Attorney-General, declared that:

“Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s5 of that Act.”[9]

28. In 2017, the Attorney General’s appeal of the High Court decision was dismissed by the Court of Appeal, indicating that the Court of Appeal agreed with the High Court.[10]

29. In 2018, the Attorney General appealed again to the Supreme Court, who also agreed with the High Court.[11]

30. In 2019, the Waitangi Tribunal ruled that:

“Section 80(1)(d) of the Electoral Act 1993 breached the principles of the Treaty. The Tribunal further found that the Crown has failed in its duty to actively protect the right of Māori to equitably participate in the electoral process and exercise their tino rangatiratanga individually and collectively.”[12]

31. The Electoral (Registration of Sentenced Prisoners) Amendment Act 2020 adjusted section 80(1)(d) restoring the rule applied prior to 2010. People sentenced to 3 or more years of imprisonment are still unable to vote.

32. The Council disagrees with the government’s assertion that the adjustments made by the Electoral (Registration of Sentenced Prisoners) Amendment Act 2020 are sufficient to satisfy either the Supreme Court’s declaration of inconsistency, or the Waitangi Tribunal’s ruling.

Recommendation 1

In response to consultation paper question 2.2, the Council recommends the removal of section 80(1)(d) from the Electoral Act 1993, so that imprisonment is not a ground for disqualification from voting.

Rights of overseas citizens and permanent residents

33. New Zealand citizens who are out of the country, and have not been in the country for three years, are disqualified from registering to vote by section 80(1)(a) of the Electoral Act 1993. A permanent resident who is out of the country, and has not been in the country for 12 months is disqualified under 80(1)(b). This broad exclusion is then narrowed by section 80(3), which ensures that citizens and permanent residents who are serving overseas (whether as diplomats or in the Defence Force) and their families do not lose the right to vote.

34. The Council does not believe that this restriction is a ‘reasonable limit’ that can be ‘demonstrably justified in a free and democratic society’, which is the test set out in section 5 of NZBORA. The Council notes that in 2012 Statistics NZ estimated that approximately 800,000 adult New Zealand citizens were living overseas.[13]

35. In addition to the principled argument for removing this restriction, there have been changes in society that affect the potential policy arguments for it. First, the Internet was not widely used when the Electoral Act 1993 was being written. At that time, staying informed with what was happening in New Zealand was a fundamentally more challenging task than it has been for the last 25 years. Today, the barriers to being well informed on important issues prior to voting in an election is no more difficult for someone living overseas than it is for residents of Aotearoa New Zealand.

36. Second, when the Act was passed in 1993, student loans had only begun to be issued the previous year. An entire generation of New Zealanders now exists that may have both taken out a student loan and decided to work overseas. The law and policy around repayments of these loans could change as the result of a political party entering government with proposals to amend the law. This means these New Zealanders have a strong personal interest in voting in elections while living overseas.

37. The Council notes our laws for overseas voting are far more restrictive than those of comparable Commonwealth countries. Australians living overseas can vote for twice as long as New Zealanders, British citizens can vote for 5 times as long, and Canadians living outside Canada can continue to vote indefinitely.[14],[15],[16]

38. The government’s introduction of the Electoral Amendment Bill, currently before the House, proposes to temporarily change the disqualification criteria by extending the period people can be outside of the country and still retain the right to vote. For citizens the period is being increased from three to six years, and for permanent residents from one to four years. While this is a response to people being unable to return to New Zealand due to COVID-19 travel restrictions, we believe these extended periods of eligibility are the bare minimum that should be permanently guaranteed to people.

Recommendation 2

In a further response to question 2.2, the Council recommends that section 80(1)(a), the removal of voting eligibility for NZ citizens living overseas for more than three years, either be removed from the Act or significantly extended, and relevant consequential amendments be made. Section 80(1)(b) should be permanently extended to four years.

The age at which people gain the right to vote

39. Section 3 of the 1993 Act and section 12 of NZBORA restrict voting to persons aged 18 years or older. There is no stated reason for this limit.

40. The Council believes that the age at which people should become eligible to vote is 16 years old. This would remove the inconsistency between the voting age and many other legal indicators of adulthood, such as:

  • The ability to leave school;
  • The obligation to pay income tax;
  • The age of consent for sex;
  • The ability to get married;
  • The ability to hold a driver’s licence; and
  • The ability to hold a gun licence.[17]

41. Reducing the voting age increases the coverage and diversity of the electorate, which are important measures of our democracy.

42. The Council also notes that there is precedent for lowering the voting age: in 1969 the voting age was lowered from 21 to 20. In 1974 it was then lowered to 18 years.

43. Scotland and Wales have lowered the voting age to 16 for elections to the Scottish Parliament, Welsh Senedd, and local authorities in their countries. (The Westminster parliament has not reduced the age of eligibility for voting to elect MPs since 1969 when it changed from 21 to 18). Some OECD countries have reduced their voting age to 16. In Austria and Norway voters ages 16 and 17 have higher turnout than older voters.[18] Furthermore, a 2022 German study found that lowering the voting age to 16 increases turnout of people aged 18-29 years.[19]

Recommendation 3

In response to question 2.1 of the consultation, the Council recommends that the definition of ‘adult’ in section 3(1) of the Electoral Act 1993 be amended to lower the voting age to 16, and that the consequential amendment to section 12 of the NZ Bill of Rights Act is also made.

Voting rights of people with disabilities

44. Section 155(4) of the Electoral Act 1993 indicates that only 12 polling places per district require ‘access that is suitable for persons who are physically disabled.’

45. The Council does not believe that this provision is consistent with the requirements of section 21(1)(h) of the Human Rights Act 1993 (the HRA), which prohibits discrimination on the grounds of disability. Axiomatically, if only 12 polling places per district have to have access suitable for people who are physically disabled, then the remainder do not. These will therefore be inconsistent not only with section 21(1)(h) of the HRA, but also with section 19(1) of NZBORA.

46. Section 19(2) of NZBORA provides agencies for ‘Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993’.  This effectively provides protection against legal action alleging a breach of NZBORA, as long as efforts are made to enable people with disabilities to vote. The 2013 report of the Independent Monitoring Mechanism of NZ’s compliance with the UN Convention on the Rights of Persons with Disabilities noted progress.[20] However, the Ombudsman, Human Rights Commission and New Zealand Convention Coalition still felt it necessary to recommend ‘That the Electoral Commission ensure that the next general election in 2014 is conducted in a way that allows independent and secret voting for all eligible voters.’[21] That recommendation has yet to be implemented.

47. The Council also notes that research conducted for the Electoral Commission shows that there has been an increase in the proportion of disabled people who had a poor understanding of what to do if they could not get to a polling place: 31 percent of disabled people surveyed said they had ‘poor’ or ‘little or no’ understanding of what to do.[22] The same research also shows that of those that did not vote in the 2017 General Election, 10 percent of disabled respondents said that the problem was that they faced a practical access barrier, in that the voting place was too far away.[23]

48. The Council notes that specific recommendations made by Disabled Person’s Assembly in its Submission on the Inquiry into the 2020 General Election and Referendums, appear to be still relevant and commends their consideration.[24] New Zealanders who are not able to mark a printed voting paper independently and who are also living overseas are currently excluded from accessing telephone dictation voting to vote under the Electoral Regulations 1996.[25] This effectively means that any New Zealander unable to mark a paper independently, whether because they are blind, partially blind or have a physical disability, who happens to be overseas at election time, is unable to cast an independent vote.

Recommendation 4

In response to consultation question 2.6, the Council recommends that section 155(4) of the Electoral Act 1993 be amended so that the words ‘At least 12’ are deleted and replaced with the word ‘All’, so that people who use mobility aids can exercise their right to vote.

Recommendation 5

The Council further recommends that section 23A Electoral Regulations 1996[26] be updated to allow people usually eligible to cast a vote by telephone dictation to do so from overseas as well as those who are in New Zealand.

Recommendation 6

Noting the experience reported in the Radio New Zealand article cited in footnote 24 above, the Council also recommends accessibility and inclusiveness training for electoral officers. Since New Zealand Sign Language is an official language, at least one officer at each voting place should be trained in NZSL.

Māori Roll

49. The Council believes that frustration over an inability to change rolls is a disincentive to vote. Barriers to changing rolls therefore reduce democratic rights.

50. The Electoral Commission reported that in 2017, over 19,000 people applied to change roll type outside of the Māori Electoral Option period. While we have no information on how many of those frustrated voters chose not to vote at all, it is likely that a significant proportion would have felt disenfranchised and not voted.

51. The Waitangi Tribunal Maori Electoral Option Report (1994) found that the Crown’s obligation of active protection also extends to the protection of Māori citizenship rights conferred under the Electoral Act 1993. As part of the rights of citizenship actively protected by the Crown, Māori must have equal rights of participation with other Māori and non-Māori citizens during democratic election processes.

52. In its 1994 Findings on Treaty Principles 5.1 the Tribunal found,[27]

“that the Crown is under a Treaty obligation actively to protect Maori citizenship rights and in particular existing Maori rights to political representation conferred under the Electoral Act 1993. This duty of protection arises from the Treaty generally and in particular from the provisions of article 3.

“The tribunal further finds that the partnership relationship the Treaty envisages should be founded on reasonableness, mutual co-operation and trust. The Crown in carrying out its obligations is not required, in protecting Maori citizenship rights to political representation, to go beyond taking such action as is reasonable in the prevailing circumstances.”

53. The Council suggests that what is “is reasonable in the prevailing circumstances” in 2022 is different from what it was in 1994. Due to advances in digital technology and electoral processes, voters in Aotearoa New Zealand are now able to enrol and vote on the same day. There do not seem to be reasonable barriers to expecting swifter and less cumbersome procedures for Māori voters to be able to register on either the General roll or the Māori if they are eligible to be added.

Recommendation 7

In response to consultation question 2.4, the New Zealand Council of Civil Liberties supports the Electoral Commission’s 2017 recommendation that voters of Māori descent should be able to change roll type at any time.

[1] The Council’s submission can be downloaded from Parliament’s website here:
https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/53SCSO_EVI_122709_SO109/new-zealand-council-for-civil-liberties

[2] Occasionally, a select committee will exercise the power available to all of them and hire independent experts to assist the committee with analysis of submissions.

[3] Note that table 4.1 on page 129 of the 1986 Royal Commission report shows Denmark, with a population of 5.1 million people having a unicameral legislature of 179 MPs. (Accessed from: https://elections.nz/democracy-in-nz/what-is-new-zealands-system-of-government/report-of-the-royal-commission-on-the-electoral-system/) The Council also notes that while neither Sir Geoffrey nor the National MP expressed support for a second chamber, we note that this would not necessarily have to be constituted of elected representatives, but could be a periodically renewed Citizens’ Assembly, selected by sortition from a demographically representative sample of the population, to conduct deliberative inquiries and make recommendations back to the House of Representatives and/or Government.

[4] https://www.un.org/en/universal-declaration-human-rights/index.html

[5] https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx

[6] http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225511.html

[7] https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/49SCLO_EVI_00DBHOH_BILL9745_1_A53637/new-zealand-council-for-civil-liberties

[8] Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill https://www.justice.govt.nz/assets/Documents/Publications/BORA-Electoral-Disqualification-of-Convicted-Prisoners-Amendment-Bill.pdf

[9] Taylor v Attorney-General[2015] NZHC 1706, [2015] 3 NZLR 791 [Taylor(HC)] at [79]

[10] Attorney-General v Taylor[2017] NZCA 215, [2017] 3 NZLR 24 (Kós P, Randerson, Wild, French and Miller JJ) [Taylor(CA)].

[11] https://www.courtsofnz.govt.nz/cases/attorney-general-v-arthur-william-taylor/@@images/fileDecision

[12] https://forms.justice.govt.nz/search/WT/reports/reportSummary.html?reportId=wt_DOC_151635085

[13] ‘At least 1 million New Zealanders live overseas’, Statistics NZ, 22 June 2012. Accessed from: http://archive.stats.govt.nz/browse_for_stats/population/mythbusters/1million-kiwis-live-overseas.aspx

[14] https://www.aec.gov.au/overseas/enrolment.htm

[15] See section 1 of the Representation of the People Act 1985 [UK]. People were eligible to be registered as overseas voters for 20 years until the enactment of s. 141 of the Political Parties, Elections and Referendums Act 2000 [UK]. See: https://www.legislation.gov.uk/ukpga/1985/50/section/1

[16] https://www.elections.ca/content.aspx?section=med&dir=pre&document=aug1721b&lang=e

[17] Community Law Manual Online ‘Legal ages: when you can do what’. Community Law. Accessed from: http://youthlaw.co.nz/rights/legal-ages/

[18] https://www.tandfonline.com/doi/full/10.1080/17457289.2013.872652

[19] https://blogs.lse.ac.uk/europpblog/2022/10/20/evidence-from-germany-does-reducing-the-voting-age-to-16-lead-to-higher-turnout-at-elections/

[20] Making disability rights real, Second Report of the Independent Monitoring Mechanism of the Convention on the Rights of Persons with Disabilities, July 2012-December 2013. Pages 95-98 deal with Article 29 of the Convention.

[21] Ibid, page 98, recommendation 30

[22] Report into the 2017 General Election, Report by Kantar TNS for the Electoral Commission. April 2018. Table 12, page 20. https://elections.nz/assets/2017-general-election/voter-and-non-voter-satisfaction-survey-2017.pdf

[23] Ibid, page 62.

[24] Submission on the Inquiry into the 2020 General Election and Referendums
https://www.dpa.org.nz/store/doc/DPA-submission-to-the-Inquiry-into-2020-General-Election-April-2021.docx

[25] Voting accessibility 2020: A mixed report card, Radio New Zealand, 29 October 2020 https://www.rnz.co.nz/news/on-the-inside/429445/voting-accessibility-2020-a-mixed-report-card

[26] https://www.legislation.govt.nz/regulation/public/1996/0093/latest/DLM6141803.html

[27] Submission: Māori Electoral Option, 6 August 2021, New Zealand Council for Civil Liberties https://nzccl.org.nz/submission-maori-electoral-option/ citing https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68338112/Maori%20Electoral%20Option%201994.pdf