Electoral (Māori Electoral Option) Legislation Bill

Electoral (Māori Electoral Option) Legislation Bill

Government Bill

139—1

Explanatory note

General policy statement

This is an omnibus Bill introduced under Standing Order 267(1)(a). That Standing Order provides that an omnibus Bill to amend more than one Act may be introduced if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy.

The single broad policy implemented by the amendments in this Bill is to facilitate the more effective operation of the Māori representation model that applies to the electoral processes for Parliament and local authorities. This is primarily being done by the introduction of a continuous option model to enable Māori electors to change electoral rolls between the general and Māori rolls whenever they wish. The choice of roll is called the Māori option and is exercised by parliamentary electors (or Māori eligible to enrol as a parliamentary elector) under the Electoral Act 1993 (the Electoral Act). The Electoral Act changes impact on the operation of elections under the Local Electoral Act 2001 (the Local Electoral Act). Those who are registered as electors on the Māori parliamentary electoral roll under the Electoral Act are eligible to register in Māori wards or constituencies under the Local Electoral Act.

The Bill replaces the current 4-month option period for the Māori electoral option, which is notified in the Gazette by the Minister of Justice and enables Māori electors to change between the Māori and general electoral rolls in the year of a census (or the following year if a census and general election are in the same year), with a continuous option model. The continuous option model gives Māori the option of changing from the Māori electoral roll to the general electoral roll or from the general electoral roll to the Māori electoral roll at any time and without restriction as to the number of times they can choose to exercise the option. The Bill clarifies that the option may also be exercised by special vote under the Electoral Act.

The only exception to being able to move between electoral rolls is during the period of a parliamentary by-election for an electorate in which an elector resides or moves to, except when a local election is being held at the same time.

The number of electors on the Māori parliamentary electoral rolls are important for the setting of electorate boundaries and determining the number of Māori seats under the Electoral Act. They are also important for the representation reviews carried out by local authorities that involve Māori wards or constituencies under the Local Electoral Act.

Under the Electoral Act, the Electoral Commission is required to provide information to the Government Statistician as soon as practicable after the counting day for the purposes of calculating the Māori electoral population and General electoral population. The new counting day definition replaces the current approach of counting the population figures as at the end of the 4-month Gazette notice period by providing that the population figures are to be counted as at the day of the census, except if the general election and census are in the same year, in which case 1 April in the following year applies.

The Bill also makes changes to the Local Electoral Act relating to the calculation of the Māori electoral population. Currently, the process for determining the numbers to make this calculation is the same under both Acts. Under the Bill, the Māori electoral population is to be calculated for the purposes of the representation reviews under the Local Electoral Act only as at the day of the census. A second change to the Local Electoral Act is to provide that Māori who change parliamentary electoral rolls during the election period for a local election can vote as a special voter for the local election. These changes ensure the effective operation of the representation review process under that Act.

The Bill also makes 2 consequential amendments to the Bay of Plenty Regional Council (Maori Constituency Empowering) Act 2001 for consistency with the changes made to the Local Electoral Act.

Departmental disclosure statement

The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Ministry of Justice produced a regulatory impact assessment to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill will come into force on 31 March 2023.

Part 1Amendments to Electoral Act 1993

Clause 3 states that Part 1 amends the Electoral Act 1993 (the Electoral Act). The amendments to the Electoral Act are in 2 main categories. These are the calculation of the Māori electoral population by the Government Statistician and the exercise of the Māori option by individual electors who can choose to be registered in a Māori electoral district (or Māori electorate) or a General electoral district (or General electorate).

Main amendments relating to calculation of Māori electoral population

There are 3 key provisions in the Electoral Act relating to the calculation of the Māori electoral population: sections 3, 35(6), and 77(6). Section 3(1) contains the definition of Māori electoral population, which sets out the formula for calculating this. The calculation is done by the Government Statistician under section 35(6) using numbers supplied by the Electoral Commission under section 77(6).

The Bill replaces section 77(6) with new section 79 to make one substantive change to the means and timing of obtaining the numbers needed to calculate the Māori electoral population (see the description of the change made by new section 79 below for further details). Amendments are also made to the definition of Māori electoral population in section 3(1), and to section 35(6), to reflect the change made by new section 79. The 3 provisions relating to the calculation of the Māori electoral population otherwise remain unchanged in effect but the language has been modernised.

Clause 4 amends the definition of Māori electoral population in section 3(1) by replacing a reference to section 77 with a reference to counting day. Clause 4 also inserts into section 3(1) definitions for the new terms counting day and on census day. Both of those new terms are defined in new section 79(2).

Clause 5 replaces section 35(5) and (6)(b). In new section 35(5) and (6)(b), references to section 77 and some details of the process under section 77 (which will no longer apply) are replaced with references to new section 79(1).

Section 35 is a reserved provision under section 268(1)(c) of the Electoral Act. Section 268(2) requires an amendment to a reserved provision to be passed by a majority of 75% of all the members of the House of Representatives.

Clause 6 replaces 4 sections of the Act. One of these is section 77(6), which is replaced with new section 79. These both relate to the means and timing for updating the numbers needed for calculating the Māori electoral population. At present, that is done under section 77 by way of the Gazette notice process that happens in the year in which a census is taken or, if a general election is held in the same year as a census, in the following year (see section 77(4) and (5)). New section 79 replaces the Gazette notice process with a requirement that the numbers be counted by the Electoral Commission as on counting day, which is defined as—

  • on census day; or

  • if a periodic census and a general election take place in the same calendar year, on 1 April in the following year.

On census day, in relation to a number or information, is defined as the number or information as determined by the last periodic census.

The numbers that the Electoral Commission must supply to the Government Statistician are currently listed in section 77(6) and are not changed by the Bill in new section 79(1).

The numbers must be provided by the Electoral Commission to the Government Statistician as soon as practicable after counting day.

Main amendments relating to exercise of Māori option

Clause 6 replaces sections 76 to 79. New sections 76 to 78A relate to the exercise of the Māori option. (New section 79 relates to the calculation of the Māori electoral population and is discussed above.)

New section 76 is largely based on the existing section 76. It gives a Māori person who is eligible to be registered as an elector an option to be registered in either a Māori electorate or a General electorate.

New section 77 sets out the circumstances in which the Māori option may be exercised under the Act—

  • a person who is aged 17 years, may exercise the option when making an early application for registration as an elector under section 82(2):

  • a person who applies to be registered as an elector may exercise the option in an application under section 83:

  • a person who is registered as an elector may exercise the option at any time by advising the Electoral Commission they wish to swap rolls.

The ability to exercise the Māori option when applying for registration as an elector (see the second bullet point above) covers both new applications and applications from persons who are named on a dormant roll (so have been registered previously).

The Māori option may be exercised at any time for those registered as electors (see the third bullet point above). In other words, an individual who is registered as an elector of either a Māori electorate or a General electorate may advise the Electoral Commission at any time that they wish to swap electorates (sometimes called swapping rolls). This new process replaces the Gazette notice process that operates at present under section 77. However, a limit is placed on the ability to swap electorates by new section 78A (see below).

New section 78 sets out the process for, and states the effect of, exercising the Māori option. It repeats existing content from section 78(5), (6), and (8).

New section 78A is new and limits the exercise of the Māori option in an election period for a by-election. A person currently registered as an elector or named on a dormant roll and who lives in, or moves into, the electorate may not swap the type of electorate in which they are or were registered if this would result in them becoming eligible to vote in the by-election. This does not apply to new registrations.

In new section 78A, election period (for the by-election) is defined as the period beginning on the date on which a notice of vacancy for the electorate is published by the Speaker and ending on the day after the day of the return of the writ (inclusive).

New section 78A does not apply—

(a)

if no writ is issued under section 131:

(b)

for the period in which the by-election and an election for a corresponding local electorate are both underway.

Other amendments to principal Act

Clauses 7 to 12 make the following minor amendments to implement the 2 main categories of amendments discussed above:

  • clause 7 updates language and cross-references in section 86B(1)(b):

  • clause 8 repeals section 89(2), which will no longer apply because of changes made by the Bill:

  • clause 9 inserts new subsections (5A) and (5B) into section 89D to place additional requirements on the Electoral Commission when updating the particulars on electoral rolls for Māori electors, for example, to inform them that they may exercise the Māori option at any time:

  • clause 10 corrects incorrect numbering in section 89F:

  • clause 11 removes a reference in section 89G(1)(a) to a process that will no longer apply because of changes made by the Bill:

  • clause 12 updates section 98(1)(g) to reflect changes made by the Bill.

Part 2Amendments to Local Electoral Act 2001

Clause 13 states that Part 2 amends the Local Electoral Act 2001 (the Local Electoral Act). The amendments relate to the definition of Māori electoral population and how it is calculated, except clause 15, which relates to special voting by individuals at local elections.

Clause 14 inserts new definitions of dormant roll, General electoral district, Māori, Māori electoral district, Māori electoral population, and on census day into section 5(1). The definition of Māori electoral population (including the formula for calculating this) is based on the definition of this term in section 3(1) of the Electoral Act. The only difference between the definitions of Māori electoral population in the 2 Acts is the day on which certain information needed to make the calculation is counted. Under the Local Electoral Act that day is always census day.

On census day, in relation to a number or information, is defined as the number or information as determined by the last periodic census.

The other 4 definitions all refer back to the definitions of the same terms in the Electoral Act.

Clause 15 allows an elector to vote as a special voter in a local election if they have exercised the Māori option under section 76 of the Electoral Act (which is amended by this Bill) in the election period and are therefore named on the wrong roll for a ward, local board area, community, or constituency in which they are qualified to vote. Clause 15 also inserts a new definition of election period into section 21.

Clause 16 replaces clause 7(2) of Schedule 1A. This clause provides the means of updating the population numbers for both the Māori electoral population and General electoral population for districts and regions. At present a certificate with those numbers is supplied to territorial authorities and regional councils by the Government Statistician. Currently, this is based on numbers in the most recent report of the Government Statistician under section 35(6) of the Electoral Act (which is amended by this Bill). The numbers in that report are based, in part, on information supplied by the Electoral Commission under section 77(6) of that Act (replaced by new section 79).

New clause 7(2) retains the process described above. However, it also provides that the certificate will be based on an alternative report by the Government Statistician when the report under new section 35(6) will not count the numbers as on census day (see the definition of counting day in new section 79).

Clause 17 makes 2 consequential amendments to sections 3 and 9 of the Bay of Plenty Regional Council (Maori Constituency Empowering) Act 2001 for consistency with the changes made to the Local Electoral Act.

1 Title

This Act is the Electoral (Māori Electoral Option) Legislation Act 2022.

2 Commencement

This Act comes into force on 31 March 2023.

Part 1 Amendments to Electoral Act 1993

3 Principal Act

This Part amends the Electoral Act 1993.

4 Section 3 amended (Interpretation)

(1)

In section 3(1), replace the definition of Maori electoral population with:

Māori electoral population means a figure representing both the persons registered as electors of the Māori electoral districts and a proportion of Māori persons who are not registered as electors of any electoral district and a proportion of Māori persons under the age of 18 years, which figure must be fixed—

(a)

by ascertaining a proportion determined by dividing—

(i)

the total number of persons, on counting day, registered as electors of Māori electoral districts and named on the dormant rolls for Māori electoral districts; by

(ii)

the total number of Māori persons, on counting day, registered as electors of Māori electoral districts or General electoral districts and named on the dormant rolls for Māori electoral districts or General electoral districts; and

(b)

by applying the proportion ascertained under paragraph (a) to the total number of ordinarily resident Māori persons on census day

(2)

In section 3(1), insert in their appropriate alphabetical order:

counting day has the meaning given in section 79(2)

on census day has the meaning given in section 79(2)

5 Section 35 amended (Division of New Zealand into General electoral districts)

(1)

Replace section 35(5) with:

(5)

The Electoral Commission must supply the Government Statistician with the information required to be supplied under section 79(1) in accordance with that section.

(2)

Replace section 35(6)(b) with:

(b)

has been supplied by the Electoral Commission with the information required to be supplied under section 79(1),—

(3)

In section 35(6), replace “at the close of the last day of that period” with “on counting day”.

6 Sections 76 to 79 replaced

Replace sections 76 to 79 with:

76 Māori option

(1)

A Māori who is eligible to be registered as an elector may choose to be registered as an elector of—

(a)

a Māori electoral district; or

(b)

a General electoral district.

(2)

The option under subsection (1) (the Māori option) may be exercised by a person in accordance with section 77.

77 Exercise of Māori option
Exercise of option by 17-year olds

(1)

A Māori who is 17 years old may exercise the Māori option at the time they apply for registration as an elector under section 82(2).

Exercise of option when person applies for registration as elector

(2)

A Māori may exercise the Māori option at the time they apply to be registered as an elector in an application under section 83.

Exercise of option by registered elector

(3)

A Māori who is registered as an elector may, at any time, exercise the Māori option by advising the Electoral Commission,—

(a)

in the case of a person registered as an elector of a Māori electoral district, that they wish to be registered as an elector of a General electoral district:

(b)

in the case of a person registered as an elector of a General electoral district, that they wish to be registered as an elector of a Māori electoral district.

78 Process for and effect of exercise of Māori option
How option is exercised

(1)

A person may exercise the Māori option by indicating their choice,—

(a)

in writing, by completing and signing a form that the Electoral Commission has approved and returning it to the Electoral Commission:

(b)

in an approved electronic medium, by providing the required information:

(c)

in an application for registration as an elector.

Representatives may act on behalf of some persons

(2)

A person who is outside New Zealand or who has a physical or mental impairment may exercise the Māori option through a representative and section 86 applies with any necessary modifications.

Effect of exercise of option

(3)

The exercise of the Māori option (if not made in an application under section 83) is to be treated as an application for registration as an elector for the purposes of—

(a)

the definition of electoral roll in section 3(1); and

(b)

sections 89, 89A, 98, and 103.

78A Māori option paused for registered electors and persons on dormant roll if by-election called

(1)

This section applies if the Speaker has published a notice of vacancy for an electoral district.

(2)

In the election period, the Electoral Commission must not do either of the following for a person relating to that district if the result will be that the person is eligible to vote in a by-election to fill that vacancy:

(a)

give effect to advice given under section 77(3) (by a person who is registered as an elector):

(b)

if processing an application under section 83 in which the Māori option is exercised by a person named on a dormant roll, give effect to the choice made by the person if it would register them as an elector for a different type of district from that for which they were previously registered.

(3)

Subsection (2) does not apply—

(a)

if no writ is issued under section 131:

(b)

for any period during which any part of the process for the by-election, and any part of the process for an election under section 10(2) of the Local Electoral Act 2001 for a corresponding local electoral district, are both underway.

(4)

In this section,—

corresponding local electoral district means a district of a local authority that has a geographical area that overlaps the geographical area of the electoral district in which the by-election is being held

election period means the period beginning on the date on which the notice of vacancy is published and ending on the day after the day of the return of the writ

person relating to that district means a person—

(a)

whose place of residence in the district in which the vacancy has arisen and for which registration as an elector is claimed is the same as their place of residence immediately before the notice of vacancy was published; or

(b)

who has moved their place of residence, for which registration as an elector is claimed, within or into the district in which the vacancy has arisen.

79 Determination of Māori electoral population

(1)

For the purpose of enabling the Government Statistician to calculate the Māori electoral population, the Electoral Commission must, as soon as practicable after counting day, supply to the Government Statistician the following information as on counting day:

(a)

the total number of persons registered as electors of Māori electoral districts; and

(b)

the total number of Māori persons registered as electors of General electoral districts; and

(c)

the total number of persons whose names are on the dormant rolls maintained under section 109 for Māori electoral districts; and

(d)

the total number of Māori persons whose names are on the dormant rolls maintained under section 109 for General electoral districts.

(2)

In this Act,—

counting day

(a)

means on census day; or

(b)

if a periodic census and a general election take place in the same calendar year, means 1 April in the following year

on census day, in relation to a number or information, means that number or information as determined by the last periodic census.

7 Section 86B amended (Prison manager to collect and send enrolment information to Electoral Commission)

Replace section 86B(1)(b) with:

(b)

if the prisoner is Māori, whether their choice is to be registered in a Māori electoral district or a General electoral district.

8 Section 89 amended (Procedure following application for registration)

Repeal section 89(2).

9 Section 89D amended (Inquiry to be made to update electoral rolls)

After section 89D(5), insert:

(5A)

An inquiry under subsection (1), for a Māori registered as an elector,—

(a)

must inform the elector that they are currently registered in a Māori electoral district or a General electoral district (whichever applies); and

(b)

must inform the elector that they are entitled to exercise the Māori option under section 76 at any time and change the type of district in which they are registered; and

(c)

must include a form or information about an approved electronic medium to use to exercise the Māori option; and

(d)

may give information about the differences between the 2 types of electoral districts that the Electoral Commission considers would be useful.

(5B)

To avoid doubt, section 78 applies to the exercise of the Māori option following an inquiry under this section.

10 Section 89F amended (Procedure following inquiry under section 89D)

(1)

In section 89F(2) and (3)(a) and (b), replace “89D(5)(c)” with “89D(5)(b)”.

(2)

In section 89F(4), replace “89D(5)(c)(i)” with “89D(5)(b)(i)”.

(3)

In section 89F(5), replace “89D(5)(c)(ii)” with “89D(5)(b)(ii)”.

11 Section 89G amended (Elector who cannot be contacted to be included in dormant roll)

In section 89G(1)(a), delete “or a notice sent under section 78(2)”.

12 Section 98 amended (Removal of names from roll by Electoral Commission)

Replace section 98(1)(g) with:

(g)

the name of every Māori person who has exercised the Māori option under section 76 and chosen to be registered as an elector for a different type of electoral district:

Part 2 Amendments to Local Electoral Act 2001

13 Principal Act

This Part amends the Local Electoral Act 2001.

14 Section 5 amended (Interpretation)

(1)

In section 5(1), insert in their appropriate alphabetical order:

dormant roll means a dormant roll referred to in section 109 of the Electoral Act 1993

General electoral district has the meaning given in section 3(1) of the Electoral Act 1993

Māori has the meaning given in section 3(1) of the Electoral Act 1993

Māori electoral district has the meaning given in section 3(1) of the Electoral Act 1993

on census day, in relation to a number or information, means that number or information as determined by the last periodic census

(2)

In section 5(1), replace the definition of Māori electoral population with:

Māori electoral population means a figure representing both the persons registered as electors of the Māori electoral districts and a proportion of Māori persons who are not registered as electors of any electoral district and a proportion of Māori persons under the age of 18 years, which figure must be fixed—

(a)

by ascertaining a proportion determined by dividing—

(i)

the total number of persons, on census day, registered as electors of Māori electoral districts and named on the dormant rolls for Māori electoral districts; by

(ii)

the total number of Māori persons, on census day, registered as electors of Māori electoral districts or General electoral districts and named on the dormant rolls for Māori electoral districts or General electoral districts; and

(b)

by applying the proportion ascertained under paragraph (a) to the total number of ordinarily resident Māori persons on census day

15 Section 21 amended (Special voting)

(1)

After section 21(b), insert:

(ba)

the elector has exercised the Māori option under section 76 of the Electoral Act 1993 in an election period and as a consequence paragraph (b) applies; or

(2)

In section 21, insert as subsection (2):

(2)

In subsection (1)(ba)

election period means the period beginning at the time prescribed for the rolls to close prior to an election (see section 50) and ending on the day before polling day.

16 Schedule 1A amended

In Schedule 1A, replace clause 7(2) with:

(2)

The numbers included in the certificate must be derived from information contained in—

(a)

the most recent report of the Government Statistician to the Surveyor-General and to the other members of the Representation Commission made under section 35(6) of the Electoral Act 1993; or

(b)

if subclause (2A) applies, from the alternative report referred to in subclause (2A)(b).

(2A)

In a year where a periodic census is held but a report under section 35(6) of the Electoral Act 1993 is not due to be completed (for the purposes of that Act) until after 1 April of the following year (see the definition of counting day in section 79(2) of that Act)—

(a)

the Electoral Commission must, as soon as practicable after census day, supply to the Government Statistician the information listed in section 79(1) of that Act as on census day; and

(b)

the Government Statistician must prepare an alternative report for the purposes of this Act, with the information referred to in paragraph (a).

17 Consequential amendments to Bay of Plenty Regional Council (Maori Constituency Empowering) Act 2001

(1)

In section 3, replace the definition of Māori electoral population with:

Māori electoral population has the same meaning as in section 5(1) of the Local Electoral Act 2001

(2)

Replace section 9(2) with:

(2)

The numbers included in the certificate must be derived from information contained in the most recent of the reports referred to in clause 7(2) of Schedule 1A of the Local Electoral Act 2001.