If there is one clause that spells out just how antiquated New Zealand’s electoral law is, it’s 206ZH of the Electoral Act. “That tells you that it has been revised so many times that we’ve got to a section 206, Z and H,” says Deborah Hart, chair of the Independent Review of Electoral Laws. It’s but one example of how “clunky” New Zealand’s electoral law has become, Hart says.
While there was a Royal Commission on the Electoral System in 1985 and its 1986 report Towards a Better Democracy led to mixed member proportional representation [MMP], its recommendations for a wide-ranging overhaul of the legislation led to nothing. MMP was slipped into the Act, says Hart, rather than being part of a thorough review.
Fast forward to 2022 and the Independent Review of Electoral Laws was formed to consider how to make New Zealand’s electoral system clearer, fairer, and more accessible for current and future generations.
The panel’s initial report in late 2022 received more than 5,000 submissions. It’s working through those submissions with its final report for government due in November.
The review has made headlines for recommending the voting age be reduced to 16. But that’s just a tiny corner of the work, which is expected to propose changes in everything from offences dating back to the 1800s to how to handle fake news in the electoral process and the length of the parliamentary term.
The focus of the review is on future-proofing the law because it’s unlikely to be reviewed for another generation at least, says panel member Andrew Geddis, professor of law at the University of Otago.
The basic framework hasn’t changed in more than 60 years, Hart says. “Lots of it has been subject to piecemeal change. So, it’s become clunky, outdated and confusing. “It is very difficult for people to understand their rights and responsibilities and hard for lawyers to advise on that as well. It is not fit-for-purpose.
“We need to improve clarity, modernise outdated language, remove provisions that are no longer fit for purpose, improve the order and organisation of the actual legislation to make it much more logical, and to [have] a more technology-neutral approach, particularly in primary legislation.
Hart can reel off a long list of language in the Act that would never pass muster today. She cites s 218, covering undue influence, as an example.
“The offence of undue influence refers to “inflicting any temporal or spiritual injury, damage, harm or loss upon or against any person”. And the special voting regulations refer to ‘convalescent, aged, infirm, incurable, destitute or poor people’.”
Penalties and sausage sizzles
The penalties regime is perhaps the area most in need of modernisation, Hart says. Many of the 100+ offences are either outdated, unclear or have inconsistent penalties. With some, it is not clear that an offence is the best means of obtaining compliance.
Hart cites as examples what she calls the “sausage sizzle offences”. The first such provision refers to treating voters with food, drink or entertainment before, during or after an election for the purpose of influencing them.
The second is corruptly accepting food, drink or entertainment under these conditions. “The law actually comes from the 1850s and predates the secret ballot. That’s how old it is.”
Hart also questions whether all the offences need to be criminal, as they are now, and whether jurisdiction should be revisited. Currently, the Electoral Commission can investigate and escalate offences under the Act to the police, who in turn can further escalate to the Serious Fraud Office.
Lower-level breaches could be dealt with by infringement notices enforced by the Electoral Commission, and fines. This would reduce double-handling, as would the ability to escalate offences directly to the Serious Fraud Office where appropriate.
Hart says the offences and penalties regime is a detailed and technical piece of work. “We’re recommending that, when the Electoral Act is redrafted, a comprehensive and detailed overhaul and consolidation of the offences and penalties happens at the same time. The three principles that should guide this work are proportionality, effective effectiveness and practicality. “But of course, what a future minister or Parliament decides to do is up to them.””
A particularly challenging area for electoral law worldwide is the growth of false news, Hart says. There’s already an offence of knowingly publishing false information to influence voters. The panel recommends extending that from two days prior to the election to the entire advanced voting period.
Electoral laws alone cannot solve disinformation, she says. It’s a serious risk to the electoral system, but also needs to be balanced against the right of freedom of expression, particularly to free and open debate during elections.
“In our view, education is the best way to reduce the risks of disinformation. To teach people to think critically about information they hear about elections. Not just for young people, but for us all. We have recommended funding for community lead education initiatives that would support those efforts.”
One of the more difficult aspects of the review has been what to do in the case of catastrophic emergencies, particularly where Parliament has risen. Recalling Parliament in these situations can be difficult.
“How do we fix that problem? How do you put an election on hold and how long can you put it on hold?” Hart says. Some of the suggestions included recalling Parliament or giving more guidance to the Chief Electoral Officer.
In its interim report, the panel recommended updating the existing emergency provisions to include a new last-resort power. This would enable reconvening an expired or dissolved Parliament in the event of a catastrophic disaster. One of the issues, however, is a recalled government may not have legitimacy.
“We will no doubt be considering that afresh because we’ve had some really useful submissions in our engagement coming from the legal fraternity.” In its submission, the New Zealand Law Society (NZLS) questioned the recommendation to increase the powers of the Board of the Electoral Commission in an emergency or disruption, in particular the last-resort power to reconvene Parliament.
“In the absence of very clear criteria for reviving a dissolved or expired Parliament, these practical and procedural difficulties are disproportionate to the risks of continuing under the current arrangements,” Debra Angus, convenor, NZLS Public and Administrative Law committee wrote.
Angus added that if the draft recommendations are adopted, NZLS would find it helpful if the legislation gave more information about what comprises “a catastrophic emergency or disaster with ongoing impacts” and whether it needed to be widespread to trigger the use of the power or could be limited to a particular area.
Te Tiriti o Waitangi
The panel has made multiple recommendations about the Treaty of Waitangi. “We really need to better uphold the treaty,” says Hart. “The main recommendation that we’ve made is to include a provision in the Electoral Act, requiring decision-makers to give effect to the Treaty of Waitangi and its principles when exercising functions and powers.
“We’ve also made a recommendation that the Electoral Commission prioritises establishing Māori governance over data.”
The panel has also given thought to issues of distrust in the electoral system by Māori. “The legacy really is consistently lower Māori voter participation rates. We need to try and fix that problem.”
The panel recommended that the Māori seats be entrenched in the same way as general seats, says Geddis, meaning there would be a requirement of 75% of MPs or a majority vote in a referendum for that to be changed.
Certain parts of the Electoral Act have been entrenched since 1956. “The electoral system has developed significantly since then,” Geddis says. “We’re recommending that the threshold at which parties are able to get into Parliament should be entrenched. We’re recommending that the right to vote and the qualifications for being able to vote should be entrenched, and also that the method of appointing and removing members of the Electoral Commission be entrenched.
“While this will make those aspects of the electoral system harder to change, they also represent fundamental rules of our electoral system that should be beyond a mere majority of MPs to change as they see fit.”
NZLS warns that entrenchment makes it excessively hard to change the law and can create friction. It recommends entrenchment should be confined to constitutional matters.
Geddis says, however, that there is a balance involved in working out which aspects are so crucial they should be put beyond temporary majorities, and which aspects should be left free for majorities to decide for themselves. “We’ve made some recommendations but if others disagree, well, then we’re open to revisiting that issue,” he says.
Donations and privacy
The entire review relates to legislation and is therefore of interest to lawyers, Geddis says. Two areas stand out as particularly interesting.
One is electoral financing, where a recommendation was made to limit to $30,000 the amount individuals could donate to a political party and its candidates within one parliamentary term. The panel also recommended that donations be limited to individuals on the electoral roll, which would exclude corporations and unions.
“We’ve heard widespread disquiet as to how political parties are able to be funded through very large donations,” Geddis says. “Even with publicly disclosed donations, [there is a concern that] some people appear to be able to get greater access and attention from parties through monetary donations.” Concerns were also raised with how donations are shielded behind companies and trusts and therefore not properly disclosed.
The other area Geddis highlights is the publication of electoral rolls. “The panel has recommended that electoral rolls are no longer disclosed. They contain information about individuals’ names, addresses and sometimes occupations. Given that enrolling on the electoral roll is legally required in New Zealand, we believe that this widespread access to what is private data for any purpose is no longer appropriate.”
Legislative change will ultimately be determined by political will. The panel was commissioned under the Labour government. Should there be a change of government in October, the outcome of the review could be less certain.
In June, Prime Minister Chris Hipkins ruled out a referendum, at the same time as the election, to rule on extending the parliamentary term from three to four years, capping donations at $30,000 per party and electoral cycle, and lowering the threshold for from 5% to 3.5% for minor parties to get representation in Parliament, while abolishing the one-seat threshold.
National Party leader Christopher Luxon said electoral reform was the wrong conversation to be having when ordinary New Zealanders were doing it tough. He said that he was in favour of a four-year term, but there would be a range of views in his caucus.
Business website Interest.co.nz reported that ACT was dismissive of proposals to reform the electoral system, but the Greens and TOP were supportive.
Hart remains positive and says any government will be interested in a comprehensive look at the electoral system, which is key to New Zealand’s democracy.
“So, will they put it in the bottom drawer? I don’t think so. I would think that any government will be interested in this kind of comprehensive and independent review that [will] ensure that New Zealand has a fairer, clearer electoral system in which as many people as possible can take part.”
She says much of the existing system works really well. “But there are some key parts to it that we really need to do better.”
For a more information, read the executive summary of the interim report here. ■