If New Zealand’s new migrants continue not to vote, this will have adverse impacts on social cohesion and New Zealand’s democratic legitimacy. This is especially the case as superdiversity grows in New Zealand and, with it, linguistic diversity. 160 languages are now spoken in this country. A minimum level of social capital is needed to sustainably benefit from the financial capital benefits of migrants. This is one of the conclusions of a major study of this country’s electoral laws, which has just been released.

Entitled Superdiversity, Democracy and Electoral Laws, the study was conducted by public law specialist and Chair of the Superdiversity Centre for Law, Policy and Business Mai Chen and funded by the New Zealand Law Foundation. Ms Chen will be presenting the paper to the Justice and Electoral Committee’s Inquiry into the 2014 General elections. The study’s conclusions are also relevant to the upcoming Flag Referendum and next year’s local government elections.

“Voting in democratic elections is a fundamental part of the democratic process (citing the 2015 High court case Taylor v AG) and of civic life,” the paper says. “Despite this, New Zealand’s electoral participation rate is, as the Electoral Commission warns, suffering a ‘steep and consistent’ decline.

“Migrants and ethnic minorities are disproportionately represented in the growing number of New Zealanders who could vote but who simply choose not to. Māori and Pasifika have low rates of voting, but new migrants are the lowest,” the paper states.

“Over time, if new migrants continue not to vote, there is a risk that the existing underrepresentation of New Zealand’s superdiverse populations in central and local government will increase, despite their numerical increase as a proportion of the population.

“This will have adverse impacts on social cohesion and ultimately on the New Zealand state’s democratic legitimacy.”

Law reform

Most government business is transacted in English, the paper notes. This potential obstacle to voting can be removed through law reform to make it easier for ethnic and linguistic minorities who speak little or no English to participate in elections and referenda.

This could be achieved by, for example, consistently making election and referenda material available in the most common languages spoken in New Zealand, making interpreters available at polling places, and making provision to help those requiring assistance to answer questions about their identify to election officials and to cast their votes or special votes.

New Zealand should also consider the adoption of compulsory voting in Parliamentary elections, the paper suggests.

“Voting in elections is a fundamental part of participation in civic society, and it is arguable that taking up the rights and privileges of citizenship or permanent residence in New Zealand should bring with it an obligation to participate in civic life, and the national conversation around elections, by voting.”

Compulsory voting may also “encourage the better delivery of measures to help those who speak little or no English” in terms of electoral law, policy and practice, as they present themselves at polling places and require assistance to vote.

Summary of findings

The report made the following summary of its findings.

1. New Zealand already does more than most comparable countries to help new migrants vote because it allows migrants who are not yet citizens but who hold permanent residency to vote.

2. New Zealand should improve its accommodations in its electoral law so that those with little or no English language can still vote. Otherwise, indirect discrimination against different racial and ethnic groups may be alleged under s 19 of the New Zealand Bill of Rights Act 1990 (NZBORA) if they are not able to vote as citizens under s 12 due to limited or no English. There are practical limitations – such as cost, and the availability of suitably qualified interpreters in multiple languages – on the arrangements that can be made to assist those with little or no English to vote, and thus limitations may be reasonable and demonstrably justified in a free and democratic society.

3. A balance must also be struck between facilitating voting in languages other than English and retaining the essential characteristics of free and fair secret ballot elections affirmed by s 12 of NZBORA. A balance also needs to be struck between giving electoral officials the discretion to respond to unique situations, while making sure that the overall application of measures to help those with little or no English to vote is consistent and fair. The worst case scenario is that officials exercising discretion do so in a discriminatory fashion. New migrants with little or no English are unlikely to know how to complain or to whom.

4. Although s 12 of the NZBORA applies only to elections to Parliament, and not to elections held under the Local Electoral Act or the various referenda legislation, the accommodations it may require in respect of language represent best practice and should be applied in the context of the Local Electoral Act 2001 or the various referenda legislation, even if there is no legal obligation to do so.

5. New Zealand’s electoral legislation should be revised to adopt consistent standardised approaches to linguistic diversity whether it is local or central government elections, or referenda. Voters with little or no English should receive consistent levels of information, and support to vote, regardless of where in New Zealand they live, or what language they speak.

6. The Study’s comparative analysis of other superdiverse countries like Singapore, South Africa, Canada, the United Kingdom and Australia shows that despite its ad-hoc nature, New Zealand has a relatively sophisticated suite of measures to assist those with little or no English to vote, compared to comparable superdiverse jurisdictions. There are some aspects of particular measures which both New Zealand and some comparable superdiverse jurisdictions have adopted which are done better overseas, and which New Zealand should consider adopting, such as:

• requiring the person providing assistance to a voter with limited or no English to cast their ballot to swear to follow instructions and maintain vote secrecy (Canada – federal);
• requiring election information to be made available in every language spoken in two per cent or more of the homes in a city (Canada – Toronto);
• requiring election information to be made available in multiple specified languages, instead of leaving it to the discretion of electoral officials (Singapore);
• allowing voters to answer questions put to them to ascertain whether they are permitted to vote “satisfactorily” as opposed to being in writing to allow a person to answer other than in English (United Kingdom); and
• compulsory voting in elections (as in Australia and Singapore), provided that the penalties for non-voting are not unduly harsh.

7. Finally, New Zealand needs to keep its electoral laws, and the accommodations made for those eligible voters with little or no English, under regular review to ensure that they continue to minimise the language-related obstacles to voting. Changes in New Zealand’s linguistic makeup, or in the technology used to administer elections, may change what accommodations for those with little or no English are considered reasonable.

Recommendations

The report makes more than 29 recommendations. Of these, the following relate to Parliamentary elections:

• Consideration should be given to whether forms for voter registration (which is compulsory) should be provided in languages apart from English, especially as New Zealand’s superdiversity grows.
• New Zealand’s Electoral Commission should be required to adopt a formal multicultural plan like Australia’s Electoral Commission, which focuses on improving voter participation rates among new migrants, and be properly funded to implement such a plan.
• The Electoral Commission should emphasise in training electoral staff that New Zealand is a superdiverse society with eligible voters who come from a range of different countries and cultural backgrounds, and who speak different languages but who all have the same right to cast a vote. The Electoral Commission should also emphasise the challenges faced by voters with little or no English, the accommodations in the legislation to assist them to vote, and how polling place officials can avoid unconscious bias and ensure that such voters can use the accommodations afforded to them.
• Consideration should be given to amending electoral legislation to require the Returning Officer or other relevant official to take account of the need to make available information in a language other than English to ensure that all electors qualified to vote have a reasonable and equal opportunity to do so, using s 75(3)(a) of the Local Electoral Act as a precedent.
• The provisions in the Electoral Regulations 1996 governing the availability of interpreters should be made less complex, with fewer preconditions that must be satisfied before an interpreter can be used, and the Electoral Commission should also seek to employ more interpreters. However, it needs to be acknowledged that the Commission’s preference, in line with its policy, is to ensure that issuing officers are employed who reflect the community and have the relevant language skills.
• A person should be permitted to obtain assistance to answer (from an interpreter or otherwise) questions about their identity or whether they have already voted, or be permitted to answer questions to demonstrate their eligibility to vote through other means such as producing a passport or drivers’ licence. The requirement should also be to give a satisfactory answer, which may allow a voter to answer the question in other than English.
• Ballot papers should be available in English and Māori, which are New Zealand’s written official languages. As linguistic diversity grows, it may be appropriate to consider making ballot papers available in other languages used by a significant percentage of the population.
• Persons assisting those with little or no English should have to sign a declaration that they will follow the voter’s instructions, and maintain the secrecy of the vote. Breaching this declaration should be an offence. This is a further preventative measure given that the Electoral Act already enables the voter to request that another person inspect the ballot paper before it is put in the ballot box to ensure their instructions are complied with, and it is an offence to say how someone voted if you were the person assisting.
• There should also, for the avoidance of doubt, be a specific offence created in s 170 of the Electoral Act for voting contrary to the instructions of the voter you are assisting, just as there is for divulging how they voted, in subsection (5).
• Provisions in New Zealand’s electoral law should be reviewed to ensure they do not, directly or indirectly, discriminate on the basis of race or ethnicity against specific voters in elections or referenda in terms of ss 19 and/or 12, and cannot be justified in terms of s 5 of NZBORA.
• The recommendation of the Report on the Electoral Commission into the 2014 General Election that promoting voter participation be made a whole-of-Government priority with multi-party support and for a long-term national strategy to nurture and celebrate our democratic culture and encourage participation to be developed to reverse the “particularly steep and persistent” decline should be adopted.
• Election staff pay rates should be reviewed, as the Commission also recommended, since there has been no increase since 2008 despite more self-study and training time being required of each staff member. Election staff have important responsibilities, including helping voters with little or no English to cast their ballot. Proper pay is needed to attract candidates of the right calibre.
• The Commission also recommended looking to expand Kids Voting and to continue to provide and develop curriculum linked resources. Kids Voting is a programme for young New Zealanders that encourages them to experience and understand an authentic electoral event. Given that Māori, Pacifica and Asian voters are younger than European New Zealand voters, this should help engage and inform them of the importance of voting and help to establish a habit of doing so.

The paper also makes recommendations about local government elections and referenda. It will be published on the Superdiversity Centre for Law, Policy and Business website (www.chenpalmer.com/superdiversity) on 3 November 2015.

1. Report of the Electoral Commission on the 2014 General Election, paras 56-57, page 8.

2. Report of the Electoral Commission on the 2014 General Election (March 2015) at [118], page 15.