Electoral Amendment Bill

  • enacted

Electoral Amendment Bill

Government Bill

162—2

As reported from the Justice Committee

Commentary

Recommendation

The Justice Committee has examined the Electoral Amendment Bill. We have been unable to reach agreement on whether to recommend that the bill be passed. However, we recommend unanimously that the House adopt the amendments set out below if it decides that the bill should proceed.

Introduction

This bill seeks to amend the Electoral Act 1993 and the Electoral Regulations 1996.

Clause 4 would allow voters to enrol or update their enrolment details on election day. To allow the Electoral Commission to process election-day enrolments, clause 11 would extend the latest date for the return of the writ from 50 to 60 days after writ day.

The bill also proposes two changes to enable voting to take place in a wider range of venues. Clauses 13 and 14 would remove a blanket prohibition on using, as voting places, licensed premises that are open for the sale, supply, or consumption of alcohol. Voting would be allowed in licensed premises, but not in those parts of the premises where alcohol is available for sale, supply, or consumption, and voters would have to be able to get to the voting area without needing to pass through an area where alcohol is being consumed.

Clause 16 would allow votes to be moved from a voting place to another area for the conduct of a preliminary count of votes. Currently, election-day votes must be counted at the voting place. Clause 16 would allow votes to be moved to another area designated by the Electoral Commission when necessary for counting. An example of when this provision could be used is when votes cast in the precinct of a shopping mall need to be moved to a more suitable, secure place, such as a staffroom, for counting.

Clause 6 would allow any voter who enrols after writ day and whose name is on an electronic roll to be able to cast an ordinary vote rather than a special vote. Ordinary votes are preferred because special votes take longer to process and count.

Clause 5 would enable special vote declarations to be treated as applications to enrol or update details. Currently, the enrolment form and special vote form contain largely the same information. The change would allow (but not require) the Electoral Commission to treat the special vote form also as an enrolment form.

We understand that clauses 5 and 6 are not expected to be implemented for the 2020 elections, but would allow changes to be implemented in time for the 2023 elections.

Clause 17 would update provisions about managing disruptions to polling on election day.

Proposed amendments

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Accompanying ballot boxes to counting places

Clause 16 would allow election-day votes to be moved to another area, designated by the Electoral Commission, for counting. We were advised that the Electoral Commission would seek to use counting places that are as close to the voting place as reasonably possible. We expect that in many cases it would be on the same site; for example, using a conference room or a staffroom in a mall or supermarket.

We consider that the bill should make it clear that ballot boxes should be accompanied at all times by polling place officials. We also consider it important to provide the ability for scrutineers to accompany ballot boxes that are being moved from a voting area to a counting area. We recommend replacing proposed new section 174(1B) in clause 16 to incorporate these clarifications.

Managing disruptions on election day

Aligning pre-requisites in new sections 195 and 195A

Under clause 17, new section 195(1), polling could only be adjourned if the unforeseen or unavoidable disruption was likely to:

(a)

prevent voters voting at the polling place or places, or

(b)

pose a risk to the proper conduct of the election.

New section 195A provides for the use of alternative voting processes. It would apply in the event of an unforeseen or unavoidable disruption at one or more polling places, but there is no mention of the effects in paragraphs (a) and (b) above.

We consider that new section 195A should be aligned with new section 195 so that alternative voting processes could only be used if the disruption was likely to have an effect as described in paragraphs (a) or (b) above. To achieve this, we recommend amending clause 17 by inserting new section 195AAA to define unforeseen and unavoidable disruptions for the purposes of new sections 195, 195A, and 195C. Consequentially, we recommend removing paragraphs (a) and (b) from proposed new section 195(1) and deleting new section 195(6) as this would be incorporated in our new section 195AAA.

Include terrorism as an example of a disruption

In the bill as introduced, clause 17, new section 195(6) sets out some situations that would be considered unforeseen or unavoidable disruptions. We have recommended moving this list into our new section 195AAA(2).

It was suggested that a terrorist act should be included in this list. We note that the list is not exhaustive; it does not try to cover all possible situations. However, we agree that it would be useful to explicitly provide for terrorism as an example. We recommend inserting “a terrorist act (as defined in section 5 of the Terrorism Suppression Act 2002)” into the list at clause 17, new section 195AAA(2)(d).

Inform Prime Minister and Leader of the Opposition about initial adjournment

Clause 17, proposed new section 195 would allow the Electoral Commission to adjourn one or more polling places on polling day because of an unforeseen or unavoidable disruption. Under new section 195(2), voting could be adjourned for:

(a)

an initial period of no more than 3 days, and

(b)

one or more subsequent periods of no more than 7 days each.

Proposed new section 195(3) would require the Electoral Commission to consult the Prime Minister and the Leader of the Opposition about any subsequent adjournments under paragraph (b).

The Commission should inform the Prime Minister and the Leader of the Opposition as soon as possible about initial adjournments made under paragraph (a) above. We recommend making this explicit by replacing section 195(4) and inserting new section 195(4A).

Effects of disruption on election results

Clause 17, proposed new section 195C would require the release of preliminary results to be deferred if the close of poll was delayed at any polling place. Preliminary results could not be released until all polling places were closed. Under new section 195C(2) as introduced, the results could only be released if the Electoral Commission considered that doing so would not unduly influence voters who have yet to cast their votes.

This situation requires a balancing of two competing interests: the public’s interest in knowing election results as soon as possible, and the interest of not unduly influencing people who have yet to vote. It could be hard to establish whether and how people who had yet to cast their vote were influenced by preliminary results. We consider it more practical to focus instead on whether releasing the preliminary result could unduly influence the overall electorate or national result.

We recommend making this clear by amending new section 195C(2).

We considered two scenarios that could be contemplated in new section 195C:

  • A civil emergency leads to the adjournment of a polling place for several days. The adjournment affects 2,000 voters who postpone voting until the polling place re-opens. The Electoral Commission sees from the preliminary count that it is a very close election.

  • As above, except the preliminary count shows that the election is not close.

In the first scenario, the Chief Electoral Officer would be unlikely to release the preliminary results until all electors had voted. In the second, the Chief Electoral Officer may decide to exercise their discretion to release the preliminary results.

Other matters raised in submissions

We heard submissions on several issues that are out of scope of the bill because they are not relevant to the principles and objects of the bill as introduced. The issues include prisoner voting, foreign donations, and reducing the voting age.

We are unable to recommend changes that are out of the bill’s scope. However, we note that we have considered these issues in the course of our Inquiry into the 2017 General Election and 2016 Local Elections. We make several further comments here.

Prisoner voting

We heard several submissions asking for prisoners to be given the right to vote. This issue is out of the bill’s scope. We also note that Labour Party members and National Party members of the committee disagree about the issue of prisoner voting rights.

Ensuring former prisoners go on the electoral roll

We heard a persuasive submission about the importance of enrolling former prisoners as voters when they are released. This issue is within the bill’s scope. We agree that prisoners should be enrolled as soon as possible after their release. However, we were advised that it would be difficult to legislate for this in the time available to us for consideration of this bill.

We urge the Electoral Commission and the Ministry of Justice to work together on a process for getting prisoners back on the electoral roll as soon as they are released.

Voting age

We received many submissions about lowering the voting age from 18 to 16 years. We also considered this issue during our Inquiry into the 2017 General Election and 2016 Local Elections. We believe that this issue should continue to be debated in the public arena. We note, too, that the voting age is an entrenched law, meaning that a change would require a 75 percent majority in Parliament rather than the usual majority of 50 percent.

National Party view

New Zealand’s lack of a written constitution requires that Governments show restraint in advancing electoral law changes without strong cross-party consultation and engagement. It is disappointing that this bill is the fourth in this term of Parliament to be promoted by the Government without any consultation. It follows previous bills giving the power for party leaders to dismiss MPs, the transfer of power from Parliament to the Cabinet on referendums at general elections, and the foreign donations law that was announced and passed within 24 hours. The previous National Government promoted nine electoral amendment bills under Justice Ministers Power, Collins, and Adams and all involved consultation with Opposition parties.

The issues in this bill over the timing of enrolment, giving greater flexibility over polling places, and emergency powers were all canvassed but not concluded in the Justice Committee’s inquiry into the 2017 election. It made a mockery of that process for the Minister to announce Cabinet decisions prior to the conclusion of the inquiry. The late timetable for the inquiry were issues of the Government’s making, with it starting late, its terms of reference being extended, and six different Chairs. If the Minister was concerned about timing issues, he could have written to the committee seeking views on these specific issues by a defined date.

The Minister of Justice compounded these problems with his misleading press release announcing this bill. It made no mention that, to accommodate same-day enrolment and voting on election day, it would require an extension of the writ day and final election result by 10 days. Many lesser details were released in the press release. This was sneaky in that it did not tell the public the full story on the bill. The Electoral Commission has advised the committee that the 10-day extension to the announcement of the final election result is a direct consequence of allowing same-day enrolment because of the extra complexity and time it adds to the count. The Commission previously told the committee that it did not support same-day enrolment and voting for Election 2020.

National does not support allowing same-day enrolment and voting on Election Day for three reasons:

(1)

This is about a balancing of the objective of maximising participation with concluding the election efficiently. There were approximately 19,000 (or less than 1 percent of voters) who attempted to same-day enrol and vote in 2017. The trade-off for enabling their votes to count is that the other 2.6 million voters have to wait another 10 days to get a result and a Government. This is a significant delay. We do not believe that 99 percent of voters who did enrol should face the cost and uncertainty of delay for less than 1 percent who did not bother to enrol.

(2)

There will be no incentive or need to enrol if people know that anyone can vote without enrolment. The risk is that over time fewer people choose to enrol before election day, and the efficiency and integrity of the electoral system is eroded.

(3)

Candidates are required to register well in advance of the election so that voters have time to get to know them. It is reasonable that candidates know who the enrolled voters are so they can communicate with them on their ideas, values, and policies.

National does support the increased flexibility around location of polling booths. The current restrictions on venues with liquor licences are too tight. We are supportive of the increased use of supermarkets and other venues that make it easier for people to vote. We are pleased the detail of the bill has been refined around ensuring ballot boxes are always supervised when the counting venue is different from the voting venue.

National also supports the extended provisions around civil emergencies. These powers need to be used with caution so as to ensure the election is fair. The Leader of the Opposition does need to be included in the process to ensure there is no bias in the decisions over handling a disruption in the voting.

National Party members of the committee note another issue regarding the voting age, namely that Parliament has recently raised the age of adult criminal liability to 18. It could be argued that, if a person is considered mature enough to vote, they should also be considered mature enough to be fully responsible for their own actions and therefore liable to be treated as an adult in respect of any offences they may be alleged to have committed.

We look forward to hearing further debate on this issue.

Appendix

Committee process

The Electoral Amendment Bill was referred to the committee on 6 August 2019. The closing date for submissions was 20 September 2019.

We received and considered 131 submissions from interested groups and individuals. We determined that 70 of these contained unique material and the remaining 51 were form submissions. The written submissions are on our website at www.parliament.govt.nz.

We heard oral evidence from 11 submitters.

We received advice from the Ministry of Justice.

Committee membership

Hon Meka Whaitiri (Chairperson)

Ginny Andersen

Hon Clare Curran

Hon Tim Macindoe

Hon Mark Mitchell

Greg O’Connor

Chris Penk

Hon Dr Nick Smith