By Riley Parnwell
The final He Arotake Pōtitanga Motuhake | Independent Electoral Review report was published last November. Experts comprising its panel made over 140 recommendations for change covering almost all of our electoral system.1 Some of the recommendations overlap with commitments between coalition parties. The panel, for example, recommended increasing the length of the parliamentary term to four years and the National-Act agreement promises to hold a referendum on that question at the next election.2 Action the Government could take on implementing parts of the report may define its agenda in Parliament. This article contextualises some of the major recommendations ahead of the Government’s official
response.
The term of Parliament
Recommendation 11 encourages a “referendum on the parliamentary term”, with an independent information campaign and engagement with Māori as te Tiriti o Waitangi partners.3 New Zealand is one of only three countries with a single chamber of Parliament that has a 3-year term. In theory, an extra year to legislate allows for better thought and consultation on government agendas, creating “better laws and more effective governments” by needing fewer campaigns.4 But the panel notes the obvious counterargument that more considered legislation cannot be guaranteed. We also cannot be sure governments will not resort to urgency at the end of a 4-year term to complete their longer program(s).
The National Party will support David Seymour’s Constitution (Enabling a 4-Year Term) Amendment Bill through its first reading by March 2025. The Bill recognises the risks of giving more power to governments without “improving parliamentary oversight”.5 It does so by sketching a longer term conditioned on letting opposition MPs chair select committees—where legislation goes for scrutiny.6 But that is just one approach, with
alternatives ranging from a reform of urgency to systemic changes like a second chamber of Parliament as discussed in the Matike Mai report.7 The Minister of Justice has anticipated “a number of other issues” will be included in the Bill that will schedule the referendum, regardless of which oversight measure gets locked in.8
Prisoner voting
Giving the right to vote to all prisoners was rejected out of hand, before the government’s formal response. The Electoral Act 1993 banned those sentenced to more than 3 years from voting.9 The National Party removed the vote from all prisoners in 2010, before Labour reinstated the 1993 law on the basis those with short sentences deserve a say since the incoming government will impact them upon reintegration.10 Some submitters to the review noted this means almost 90 per cent of prisoners are allowed to vote. Others said voting is a right, not a privilege, and that it should be part of rehabilitation with prisoners getting input on decisions that will always affect them in some way. On that basis the Review concluded the right to vote is absolute, something that becomes an entitlement from a certain age. Our courts have also reached this conclusion.11
The panel also observed the current ban as arbitrary and violating te Tiriti o Waitangi. Emphasis on individual circumstances at sentencing means some prisoners will be prohibited from voting for committing the same crime as others who will retain the right to vote.12 Māori receiving longer prison sentences as a consequence of “systemic bias”,13 thus being disproportionately banned from voting, breaches Article Three. The Waitangi Tribunal has separately reached that conclusion.14 Despite the rulings and expert opinion, rejection means the status quo remains.
Māori electorates
Also connected to Māori rights is the panel’s view on Māori electorates. There are currently seven electorates for voters on the Māori roll. The panel recommended the electorates join the other provisions in the Electoral Act that are entrenched. In practice, that means any change in their nature would need support from 75 per cent of MPs or a majority in a referendum. The Māori electorates may already be entrenched by implication, but the panel recommends making that explicit.15 Their support is founded on the principle of fairness: entrenchment would give those seats protection already granted to general electorates. Equality, of course, is an obligation under te Tiriti.16 The New Zealand Law Society suggested broadly that entrenching sections of legislation makes it harder to “respond to changing societal expectations” of the law.17 But many would see the partnership between Māori and the Crown, on which New Zealand was founded, as being beyond that concern. In the current climate, the requirement that an entrenched provision be passed with the same level of support it would need to be changed makes a shift on this issue inconceivable.
Securing our future democracy
The final section of the Review deals with changes to protect our electoral system from disinformation and foreign interference. On disinformation, preventive measures like better civic education were endorsed.18 Multiple agencies are concerned about the risks of electoral interference, with the NZSIS reporting multiple states act “persistently” and carry a threat of “significant harm”.19 Chinese groups in New Zealand, for example, have been targeted by the intelligence wing of the People’s Republic of China. The panel recommended banning international funding for election promoters and they endorsed work on regulating the lobbying sector to make the influence of special interest groups more transparent.20
Footnotes
1 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report: Our Recommendations for a Fairer, Clearer, and More Accessible Electoral System, Wellington, 2023).
2 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 141; Coalition Agreement: New Zealand National Party & ACT New Zealand (Wellington: 2023), 9.
3 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 31.
4 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 141.
5 “Constitution (Enabling a 4-Year Term) Amendment Bill”, New Zealand Parliament, 2023, https://www.parliament.nz/media/8335/constitution-enabling-a-4-year-term-amendment-bill.pdf.
6 “Government rejects four voting changes as review lands,” RNZ, January 16, 2024.
7 The Independent Working Group on Constitutional Transformation, The Report of Matike Mai Aotearoa (2016), 104-111.
8 “‘This really needs to change’: Electoral review head criticises government’s refusal to let prisoners vote,” RNZ, January 17, 2024.
9 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 194.
10 Electoral (Registration of Sentenced Prisoners) Amendment Act 2020.
11 Attorney-General v Taylor [2018] NZSC 104 at [70]; Taylor v Attorney-General [2015] NZHC 1706 at [77]-[79].
12 “‘This really needs to change’: Electoral review head criticises government’s refusal to let prisoners vote,” RNZ, January 17, 2024.
13 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 197; Māni Dunlop, “Call for repeal to law banning prisoners from voting,” RNZ, August 12, 2019.
14 Waitangi Tribunal, He Aha I Pērā Ai? The Māori Prisoners’ Voting Report (WAI 2870, Wellington:
Legislation Direct, 2020) 33-35.
15 He Arotake Pōtitanga Motuhake | Independent Electoral Review Final Report, 82.
16 Adam Gifford, “Māori seat entrenchment needed,” Waatea News, January 22, 2024.
17 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 79.
18 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 474-475.
19 Te Pā Whakamarumaru | New Zealand Security Intelligence Service, New Zealand’s Security Threat Environment 2023: An assessment by the New Zealand Security Intelligence Service (Wellington: New Zealand Security Intelligence Service, 2023), 27.
20 He Arotake Pōtitanga Motuhake | Independent Electoral Review, Final Report, 485-486.