New Zealand Law Society - A clearer, fairer, more accessible democracy: Independent Electoral Review seeks to future-proof New Zealand’s electoral system

A clearer, fairer, more accessible democracy: Independent Electoral Review seeks to future-proof New Zealand’s electoral system

A clearer, fairer, more accessible democracy: Independent Electoral Review seeks to future-proof New Zealand’s electoral system

Independent Electoral Review Panel Chair, Deborah Hart shares insights and updates from the Panel on its work toward creating ‘A clearer, fairer, more accessible democracy’ by way of future proofing New Zealand’s electoral system.

New Zealand’s electoral system needs a revamp, the Panel undertaking the Independent Electoral Review says, in order to be fit to respond to the challenges of the 21st century.

In May 2022 a panel of independent experts was appointed by the Minister of Justice, tasked with undertaking the Independent Electoral Review – He Arotake Pōtitanga Motuhake, a comprehensive review of New Zealand’s electoral system. After seeking widespread input from the public and receiving over 1,700 written submissions, the Independent Panel released its Interim Report of draft recommendations in June 2023, followed by a subsequent round of engagement. The Panel will present its final report to the Minister by the end of November this year.

Deborah Hart, Panel Chair

“It’s wise to look at the things that are key to our democracy afresh now and then”, says Panel Chair Deborah Hart, with the Panel’s ‘warrant of fitness check’ on New Zealand’s electoral system revealing that a number of our current processes and laws may need modernising to ensure they are fit for purpose, now and in the future. Change is necessary, Hart asserts, to “ensure that we meet the challenges that we see, and future-proof our electoral system for future challenges that perhaps we can’t see quite yet.”

The Electoral Act

Our electoral system has been built on foundations that are now outdated, says the Panel, and hence electoral reform needs to start with the bones of the system itself – the Electoral Act. The Electoral Act 1993 needs to be “thoroughly redrafted”, according to the Interim Report, in particular by modernising its language, structure and content to make it easier to understand and implement. The language used in provisions such as those relating to mental health and disabilities is archaic, with the Panel stating that an overhaul of the Act is required to bring it into the 21st century. “There’s outdated language, and the basic framework hasn’t changed in over 60 years”, comments Hart. “Those kinds of things are problematic.”

A demand for transparency

Not only is the Act outdated in language, in the Panel’s view, but it is currently unfit to respond to the challenges of the modern world. One of the most pertinent of these challenges is the potential impact of mis- and dis-information on the integrity of the electoral system.

“We hear a lot about mis- and dis-information”, says Hart, with there being a need to introduce greater safeguards in the electoral sphere to ensure that our system remains open and accountable. One of the ways to do this, Hart and the Panel have suggested, is to broaden the scope of already-existing offences in the Electoral Act.

“We already have an offence of knowingly publishing false statements with the intention to influence voters. Currently it’s an offence in the two days leading up to voting and on election day, however around 70 per cent of New Zealanders are voting ahead of polling day. We are therefore suggesting extending the period in which the offence would be operative so that it covers the time for advance voting, as well as election day.” Increasing funding for community-led initiatives around civic education should also be prioritised, says the Panel, to ensure that educational resources are readily available to all sectors of the community.

Protecting the credibility of the information consumed by voters isn’t the only issue regarding transparency that needs to be tackled. Political financing is also a space where the Panel says there is a profound lack of trust amongst the public. The existing rules around funding need “tightening”, according to the Interim Report, to ensure private actors aren’t able to hold the purse strings of our democracy.

“One of the things that we know from research is that public trust in the way that political parties are funded is low. Research also suggests donors making large donations may expect to have greater influence or access to politicians”, says Hart. “Even that perception that some people have more access or influence over our elected representatives has the potential to cause harm to our electoral system and our confidence in our electoral system.”

Change is necessary, Hart asserts, to “ensure that we meet the challenges that we see, and futureproof our electoral system for future challenges that perhaps we can’t see quite yet” 

In response to these concerns, the Panel has proposed a package of draft recommendations around political financing to control the amounts that deep-pocketed players can contribute to the resourcing of political parties and their electoral campaigns. The Panel has suggested that donations to political parties and candidates be limited only to individuals who are on the electoral roll, meaning that all entities – whether trusts, companies, trade unions, iwi, hapū, or unincorporated societies – would be prohibited from making donations. The draft recommendations also propose that an individual’s donations be capped at $30,000 per party and its candidates for each electoral cycle, and that the threshold for anonymous donations be reduced from the current $1,500 to $500. Disclosure thresholds should also be lowered, recommends the Panel, and weekly disclosure of the names of donors who make large donations mandated in the three months leading up to election day.

“As a package, our proposals are designed to improve transparency, increase public trust in funding, and reduce the potential for disproportionate influence”, says Hart. How these recommendations butt up against the right to freedom of expression may, however, prove problematic, with the New Zealand Bill of Rights Act 1990 being applicable to all legal persons, including entities, and political donations being expressive acts protected by section 14. There is also concern that this may inadvertently quell the input of groups like iwi, hapū and voluntary organisations, who would no longer be able to contribute to a political party or candidate’s cause. These issues have been highlighted by the New Zealand Law Society Te Kāhui Ture o Aotearoa in its submission on the draft recommendations, and reconciling these tensions will no doubt form part of the Panel’s discussions as it looks toward crafting its final report.

Broadening the voting pool

Voting is a fundamental right, Hart says, and more New Zealanders need to be empowered to participate in the electoral system. New Zealand’s voting eligibility criteria are unduly restrictive in the contemporary age, says the Panel, which considers that there is now justification to welcome to the polling booths groups not previously extended the right to vote.

One such group is sixteen and seventeen-year-olds, with the Panel’s draft recommendations supporting lowering New Zealand’s voting age to sixteen years of age. “The Bill of Rights affirms the right of citizens aged eighteen years and older to vote, but it also guarantees the right to be free from age discrimination”, Hart notes. “We looked to whether there was a cause to limit that right for sixteen-year-olds, keeping in mind the principle that we had of trying to encourage participation, and, based on what we saw, we think sixteen-year-olds are just as capable of voting as eighteen-year-olds.”

“Overseas there seems to be at least some kind of move to lower the voting age in countries that we like to compare ourselves with. Several countries, Scotland, Wales and Germany, for instance, have either changed the age of voting to sixteen, or are considering it at the moment.”

That particular line of argument might, however, prove problematic for the Panel to defend, given that both Wales and Scotland are uniquely situated as part of the wider United Kingdom political union. Given that these are technically regional parliaments, subject to the overarching United Kingdom Parliament, the comparison to New Zealand’s situation arguably cannot quite be claimed. Similarly, in Germany the voting age for federal elections remains at eighteen years old, with the right only being extended to sixteen and seventeen-year-olds for European Parliament elections and local elections in select German states.

Perhaps less controversially, the Panel has also suggested increasing the voting pool by allowing expat Kiwis to retain the right to vote in New Zealand elections for up to two electoral cycles after having left the country, as opposed to the current single cycle cut-off. Kiwis who fly the nest are notorious for boomeranging back again, and modern technology enables us to stay connected in more ways than ever before. Our digitalised, globalised reality means that Kiwi globetrotters can still stay on the pulse of issues back home – issues which would inevitably affect them upon any future return. “We think that the rule is now too restrictive, given the ways that people can stay connected from abroad now”, says Hart. “[The current position] may be unfair to those people whose circumstances just don’t allow them to come home so regularly”, she adds, “so we’ve recommended that we extend the time that you can be away to two electoral cycles. We think that will encourage participation, and be a lot fairer as well.”

Finding a way forward

With other issues tackled by the Review including lowering the party vote threshold, introducing a new power to reconvene a dissolved or expired Parliament, and the prospect of a public referendum on extending the parliamentary term, there has been no shortage of things to discuss at the Panel table. It is clear that modernisation is front of mind in respect of the Panel’s draft recommendations, and indeed any electoral system must be fit for the population it serves. However, anything that touches a constitutional nerve will inevitably be a sensitive matter, and it may prove difficult to shift the dial on ideas that are so engrained. Submitters have now had the opportunity to have their say regarding the draft recommendations, and will no doubt await the release of the final report in November with anticipation.