NZ Council for Civil Liberties

Submission: Māori Electoral Option

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About the New Zealand Council for Civil Liberties

  1. The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.

Introduction

  1. The Council supports the right of all New Zealanders to vote in elections.  In a democratic society, the denial of the right to vote to any section of the population has implications, in terms of devaluing citizenship and of possibly affecting electoral outcomes. Universal suffrage is the most basic criteria for an election to be deemed democratic.
  1. Section 12 of the New Zealand Bill of Rights Act 1990 (NZBORA) states that every New Zealand citizen who is of or over the age of 18 years – (a) has the right to vote in genuine periodic elections … Any limitation of that right must be both reasonable and demonstrably justifiable in a free and democratic society.
  1. Voting in Aotearoa New Zealand is a 2-step process, viz. – the prerequisite of being enrolled in an electorate followed by the decision to vote when an election occurs. Limiting the ability to be enrolled on the roll of one’s choice, whether the General Roll or the Māori Roll for people who are Māori, is a restriction of potential voters’ ability to participate in democratic elections.

Voting is a Human Right

  1. Article 21(3) of the United Nations 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.”

  1. 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.”
  1. Section 12 of the New Zealand Bill of Rights Act 1990 (NZBORA) states that “Every New Zealand citizen who is of or over the age of 18 years … has the right to vote.” Section 5 of NZBORA states that the rights and freedoms from NZBORA may only be limited where it is ‘reasonable’, ‘prescribed in law’ and where the limitation ‘can be demonstrably justified in a free and democratic society.’

Electoral Commission View on Māori Electoral Option

  1. In its report on the 2017 General Election the Electoral Commission made the following recommendation[1]:

“Under current electoral legislation, any person of Māori descent who is already enrolled can only change roll type during the four month Māori Electoral Option period, which occurs every five or six years following the Census.

“During the three year election cycle, up to 6,000 voters each year will try to change roll type outside the Māori Electoral Option. In an election year the numbers increase significantly. In 2017, over 19,000 people applied to change roll type. Those who try to change roll type outside of the Option are advised they cannot do so, much to their frustration.

“The Commission recommends that voters of Māori descent be able to change roll type at any time. This could then become part of general enrolment communications, including the electoral update campaigns run prior to local authority and parliamentary electoral events and would better meet the needs of Māori voters.

“These changes would require amendment to Part 5 of the Act including sections 76-79 and section 35 (an entrenched provision under section 268 of the Act).”

Waitangi Tribunal on Māori prisoners disenfranchised

  1. In 2019, the Waitangi Tribunal considered the situation of Māori prisoners disenfranchised by S80 of the Electoral Act. The Tribunal found[2] that the Crown had 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 in respect of Māori prisoners disenfranchised. The report also found that while there was a theoretical right to enrol on the Electoral Roll following release from prison, in practice few Māori did so.

Democratic Rights

  1. The Council suggests a disruption to voting practices, whether from imprisonment or from frustration over inability to change rolls, is likely to be a disincentive to vote. This has the practical impact of reducing democratic rights. 
  1. 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.
  1. 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.
  2. In 1994 Findings on Treaty Principles 5.1 the Tribunal found[3]

“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.”

  1. The Council suggests that what is “is reasonable in the prevailing circumstances” in 2021 is different than 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

  1. 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] https://elections.nz/assets/2017-general-election/report-on-the-2017-general-election.pdf

[2] https://waitangitribunal.govt.nz/news/tribunal-releases-report-on-maori-prisoners-voting-rights/

[3]https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68338112/Maori%20Electoral%20Option%201994.pdf