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Chen, Mai --- "Superdiversity, Democracy & New Zealand's Electoral & Referenda Laws" [2015] NZLFRRp 5

Last Updated: 24 March 2021

Superdiversity, Democracy & New Zealand’s Electoral & Referenda Laws

Published with the support of the New Zealand Law Foundation

By Mai Chen

Superdiversity, Democracy & New Zealand’s Electoral & Referenda Laws

By Mai Chen

Chair, Superdiversity Centre for Law, Policy and Business

This paper has been sponsored by:

If you would like to know more about the Superdiversity Stocktake and the

Superdiversity Centre’s work, please contact the Centre at: info@superdiversity.co.nz

Superdiversity, Democracy & New Zealand’s Electoral & Referenda Laws

Contents

Local Government Elections

29. Right to Vote in Local Elections

31 Recommendation

31 Content of Voting Documents

31 Issuing Voting Documents – Booth Voting

31 Recommendation

31 Content of Voting Documents

33 Recommendation

33. Candidate Profile Statements
34. Polling Day

34 Recommendation

34. Special Voting
35. Recommendation
35. Summary of Recommendations on Local Electoral Act and Regulations
35. Voting in Referenda
36. Government-Initiated Indicative Referenda

36 Citizen-Initiated Indicative Referenda

36 Form of Petition

36. Participating in the Petition Process
37. Recommendation

37 Voting Qualifications

37 Voting Papers

39 Recommendation

39 Voting Information

39 Recommendation

39 Voting in a Referendum not held by Post

39. Recommendation
40. Issuing Ballot Papers

40 Recommendation

40 Assistance with Voting

40 Recommendation

40. Referenda held pursuant to Empowering Act
41. New Zealand Flag Referendums Act 2015
42. Electoral Referendum Act 1993

43. Electoral Referendum Act 2010
44. Compulsory Retirement Savings Scheme Referendum Act 1997

47 Summary of Recommendations

47. Elections and the New Zealand Bill of Rights Act 1990
48. Section 12: The Right to Vote in Elections
50. Section 19: Freedom from Discrimination
51. Section 20: Rights of Minorities
52. Conclusion

52 Recommendation

52. Comparable Superdiverse Jurisdictions
53. United Kingdom – London
54. Recommendation
55. Singapore
56. Recommendations
56. South Africa
57. Recommendation
58. Canada – Toronto
58. Canadian Charter of Rights and Freedoms
59. Official Languages Act 1988
59. Canada Elections Act 2000 and Referendum Act 1992
60. Recommendations
60. Municipal Elections Act 1996
61. Recommendations
61. Australia
62. Recommendations
62. Summary of Recommendations from Comparable Superdiverse Jurisdictions

64 Index

69 Endnotes

Foreword

This study explores the constitutional law and public policy implications of New Zealand’s increasingly ethnically diverse population – and the impact on electoral laws provides a perfect example. This angle of narration makes tangible what would otherwise be difficult to grasp – that is, why the demographic transformation that New Zealand is undergoing, especially in Auckland, has democratic and civic engagement implications.

This paper makes concrete recommendations which will only become more important as superdiversity grows – Statistics New Zealand projections tell us that by 2038, 51 per cent of New Zealand’s population will identify as Asian, Māori and Pacific. Even the flag referenda that we are about to have raises the question of whether New Zealanders who have little or no Eng- lish will really be able to participate. The issue arises again for the Local Government elections in 2016 and the Central Government election in 2017.

I hope the recommendations in this paper will be given serious consideration. I also hope that through understanding how superdiversity can impact on one area of the law – that concerning elections and referenda – thinking will be sparked on how else superdiversity may affect law and policy issues. That is why I set up the Superdiversity Centre for Law, Policy and Business.

Acknowledgments

This paper would not have been possible without the generous support of the New Zealand Law Foundation which recognised the importance of this project to improving civic engage- ment among migrants as New Zealand comes to grips with growing ethnic superdiversity.

I also want to acknowledge the support of Chen Palmer and the University of Auckland, as well as the useful information provided by the Electoral Commission and the Ministry of Justice.

Finally, I wish to thank Sir Geoffrey Palmer, Sir Anand Satyanand, Professor Andrew Stock- ley (University of Auckland, School of Law), Professor Andrew Geddis (University of Otago, Law Faculty), Robert Peden (the Chief Electoral Officer, Electoral Commission), Glyn Walters (Manager, Elections Planning, Auckland Council), Dale Ofsoske (Managing Director, Election

Services), and Kylie Archer, (Director, New Zealand Flag Consideration Project) who were kind enough to review the paper, although any errors are of course my own. I also want to thank Dr John Sinclair, my husband, who reviewed this manuscript.

I want to acknowledge the contribution to this paper of Superdiversity Centre CEO, James Dunne, and the assistance of Imogen Welling, a lawyer in the Wellington Office of Chen Palmer.

Executive Summary

1. The legitimacy of the New Zealand government rests on its election in periodic dem- ocratic elections, in which everybody who is entitled to vote is treated equally and in

which everybody’s vote is worth the same. Alongside this is an arguably evolving convention that constitutional change is authorised by referenda, as are other matters such as the upcom- ing flag referenda.

2. New Zealand’s electoral laws achieve this aim by regulating how elections and refer- enda are to be carried out. The transition to ethnic superdiversity – and the accom-

panying growth in linguistic diversity – means that the old assumption that elections could essentially be carried out in English and that this would not exclude anybody who was lawfully entitled to vote is no longer necessarily true. For example, unlike many countries, New Zealand permits permanent residents to vote as well as citizens. Almost all those with permanent resi- dent status will be new migrants for some of whom English will not be a mother tongue.

3. This paper conducts a detailed analysis of New Zealand’s electoral law and practice regarding eligible voters who have little or no English and how they have changed to

reflect shifts in New Zealand’s ethnic and linguistic makeup, together with analysis of electoral law and practice of other superdiverse jurisdictions regarding eligible voters who have English or other language limitations, and makes recommendations for improvement.

4. New Zealand is already, as the Electoral Commission warns, suffering a “steep and consistent” decline in electoral participation. Māori, Pacific peoples and new mi-

grants are all disproportionately represented in the growing number of New Zealanders who could vote but who simply choose not to, with new migrants voting the least of these three groups. The young also disproportionately do not vote and demographic projections show that New Zealand will be younger and browner in future, especially north of Taupo.

5. Over time, if new migrants continue not to vote, there is a risk that the existing un-

der-representation of New Zealand’s ethnic minority and immigrant populations in cen- tral 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. Historically, the voting rates of long-term migrants eventually ad- just to mirror those of New Zealand-born voters. However, the proportion of non-voters who were long-term migrants increased between the 2008 and 2011 elections.1 In addition, New Zealand continues to attract new migrants – for example, as at the 2013 Census, approximately 80 per cent of people identifying as Asian living in New Zealand were born overseas.2

6. There may be many reasons why the superdiverse do not vote,3 including:

1. Limited or no understanding of the democratic process, or about how New Zealand central and local government work, and why voting matters;
2. A lack of confidence, based on their experiences in their countries of origin, that the vote will be fair or secret, or that the democratic process in New Zealand is genuine;

100. No access to information about how they can vote, including what their options are if they are not able to reach a polling booth; and/or

d. Limited or no English.

7. As the Electoral Commission found in its Report into the 2014 General Elections, Asian, Pacific and young voters (aged 18-29) were more likely than other voters to report hav-

ing a poor or very poor understanding about the electoral process and Asian and young voters were more likely to report poorer understanding of how and where to vote and what to do if they could not get to a voting place.4

8. New Zealand currently has three official languages – English, Māori and New Zealand Sign Language. Most government business is only transacted in English. This potential

obstacle to voting can be removed through law reform to make it easier for ethnic and linguis- tic minorities who speak little or no English to participate in elections and referenda 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 identity to elec- tion officials and to cast their votes or special votes.

9. New Zealand should also consider the adoption of compulsory voting in parliamenta- ry elections. While this duty would fall on non-migrant New Zealanders as well, voter

participation is falling for all New Zealanders. Voting in elections is a fundamental part of partic- ipation 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.

10. Such an approach would be consistent with the public policy discourse around the role of new migrants, as Simon-Kumar identifies:5

Civic engagement – a second dimension of political citizenship highlighted in policy – reflects a broad duty for ethnic people to articulate their needs to the government. It was the government’s intent to improve the conditions and ‘settlement’ outcomes for migrants from ethnically different backgrounds and, to some extent, ethnic people were expected to contribute to the policies and programmes that would augment this improvement. Thus, ethnic citizenship was also to be enact- ed through participation in the activities of government policy making, as co-producers of policy making or in the delivery of social services.

11. Compulsory voting may also require the better delivery of measures under the

New Zealand Bill of Rights Act 1990 (“NZBORA”) 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.

12. However, it is important that the penalties associated with failing to vote do not themselves lead to disenfranchisement. The Singaporean approach where non-voters

are removed from the roll until they pay a penalty is potentially problematic in this regard and should not be adopted in New Zealand. The Australian approach, of imposing a very modest fine for failing to vote without an acceptable excuse, effectively serves as a reminder to vote.

13. There are already a significant number of accommodations in New Zealand’s electoral laws to assist voters with little or no English. However, many of these accommodations

are difficult to use and appear to be seldom used in practice.

14. There is also a lack of consistency of accommodations for voters with little or no Eng- lish across electoral and referenda legislation and even at different stages of the voting

process. The critical path for a voter with little or no English to cast their vote is essentially ad-hoc.

15. There has been no systematic development of an end-to-end statutory process to help those with little or no English to vote in central and local government elections, or in

referenda. This may explain why the rate of voting among new migrants is so poor despite the large number of accommodations in law to help them.

16. A balance must be struck between facilitating voting in languages other than Eng- lish and retaining the essential characteristics of free and fair secret ballot elections

affirmed by s 12 of the NZBORA. Otherwise, indirect discrimination against different racial and ethnic groups may be alleged under s 19 of the NZBORA if they are not able to vote under s 12 due to limited or no English.

17. 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 even on the fundamental right to vote may be reasonable and demonstrably justified in a free and democratic society.

18. New Zealand has never required voters to meet a particular standard of English ability to be eligible to vote in general or local elections, or to participate in referenda. And

since 1956, New Zealand’s electoral laws have made various allowances for the fact that some eligible voters speak little or no English and require assistance to vote.

19. These measures are included in the Electoral Act 1993, the Local Electoral Act 2001, the Citizens Initiated Referenda Act 1993, and the various laws empowering govern-

ment-initiated referenda, which are analysed below.

20. While voting in elections for central and local government is important, voting in referenda is equally so, particularly given the arguable constitutional convention that

significant constitutional change is authorised by referendum. Even citizen-initiated referenda require support from 10 per cent of eligible voters before they are held.

21. There appear to be five key areas in which language issues can pose a barrier to voting:

1. The languages information about the election is made available in, including in particular how to enrol and cast a vote;
2. How prospective voters satisfy electoral officials that they are legally entitled to cast a vote and be issued a ballot paper;

100. Whether translators or interpreters are available at polling places for voters with little or no English;

d. Whether ballot papers are only provided in English; and

5. Whether assistance for voters with little or no English is provided to answer questions about identity to get the ballot paper and to help cast the vote in the booth.

22. The particular accommodations made in New Zealand to address these issues vary across the relevant legislation, but all share the general approach that a person who re-

quires assistance to vote because of English language difficulties may be assisted in voting by a third party, contrary to the general rule that voting should be done alone and in secret. While on the one hand, this helps to ensure that eligible voters are not prevented from voting purely because of language limitations, it also creates a risk of electoral fraud or undue influence on such voters from the “assisting” individual. Such cases would likely breach prohibitions on un- due influence in our electoral laws, but more may be needed given New Zealand’s increasingly superdiverse population, and the pressure that hard fought contests place on current laws, to ensure that elections are free and fair.

23. Many other provisions could be used to help those with limited or no English to vote, but they depend on the discretion of the relevant electoral authority or officer. The

discretion is usually exercised by relatively low-level electoral officials, which may provide op- portunities for discrimination or abuse. There are also few mandatory relevant considerations that need to be taken into account before exercising the discretion. For example:

1. The voter verification procedures in the Electoral Act create the possibility that a person lawfully entitled to vote could be denied that right because of their inability to give answers to basic questions about themselves in written English to an official at a polling place;
2. The Electoral Act permits the appointment of interpreters at polling places, but does not require that they are in fact appointed, and before a voter can make use of an available interpreter, they must go through a complex process including being directed to a poster containing voting instructions in languages other than English;

100. The Local Electoral Act allows the relevant electoral officer to include voting information in other languages, but once again this is not mandatory. A poster may also be erected inside polling booths giving instructions on how to vote in languages other than English, but it is not required;

4. The Local Electoral Act also permits the submission of candidate statements for distribu- tion in languages other than English, provided that a translation into English is provided;
5. The Referenda (Postal Voting) Act permits, but does not require, the inclusion of voting information, together with ballot papers, on how to vote and how to return the ballot paper in any language or languages.

24. In contrast, the Local Electoral Regulations 2001 provide that the electoral officer “must” provide translations of the “Directions to voter” sections of the voting docu-

ment if he or she “considers it desirable in order to ensure that every elector has a reasonable and equal opportunity to vote.”

25. Finally, there are aspects of New Zealand’s electoral laws that effectively require cer- tain aspects of New Zealand’s electoral administration to be conducted exclusively in

English. In some cases this has the potential to undermine the accommodations made for vot- ers with poor English. For example, while a voter may be provided with detailed information on how to vote in a language that they understand, they may still be unable to effectively exercise their right to vote if the ballot paper is exclusively in English.

26. The prescribed form for enrolment as a ratepayer elector (as opposed to a residential elector, for which there is a different, simpler process) in the Local Electoral Regu-

lations is exclusively in English, as is the prescribed ballot paper under the Citizens Initiated Referenda Regulations. The various Acts to empower government referenda have all required that the referenda question be put to the voter in English.

Summary of Findings

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

residency to vote. Most countries restrict the franchise to their own citizens or to citizens of countries with whom they have a strong relationship (such as Commonwealth citizens or citi- zens of the European Union in the United Kingdom).

28. New Zealand can improve its accommodations in its electoral law to help those with little or no English language to vote. Although s 12 of the NZBORA, which affirms the

right to vote, 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 or the various referenda legislation, even if there is no legal obligation to do so.

29. 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.

30. In dealing with those with little or no English, New Zealand’s electoral laws need to find a balance 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.6 New migrants with little or no English are unlikely to know how to complain or to whom.

31. This paper also considers electoral laws in comparable superdiverse jurisdictions, such as London, Singapore, Johannesburg, Toronto and Australia.
32. The comparative analysis 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 particu- lar 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:

1. 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);
2. Requiring election information to be made available in every language spoken in 2 per cent or more of the homes in a city (Canada – Toronto). If New Zealand were to adopt Toronto’s approach, election information for general elections would be required in English, Te Reo Māori and Samoan. In Auckland elections, information would be required in English, Te Reo Māori, Samoan, Hindi, Northern Chinese, Yue, and other Sinitic languages;

100. Requiring election information to be made available in multiple specified languages, instead of leaving it to the discretion of electoral officials (Singapore);

4. Allowing voters to answer questions put to them to ascertain whether they are permitted to vote “satisfactorily”, which will allow a person to answer other than in English (United Kingdom).
5. Compulsory voting in elections (Australia and Singapore), provided that the penalties for non-voting are not unduly harsh.

33. 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 accom- modations for those with little or no English are considered reasonable.

Summary of Recommendations

34. This paper makes the following recommendations about how New Zealand’s electoral laws should change to help those voters with little or no English vote:

Parliamentary Elections

1. Consideration should be given to whether forms for voter registration (which is compul- sory) should be provided in languages apart from English, especially as New Zealand’s superdiversity grows.
2. 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 and issuing officers can avoid unconscious bias and ensure that such voters can use the accommodations afforded to them.

100. The recommendation of the Report of the Electoral Commission into the 2014 General Election that promoting voter participation be made a whole-of-Government priority with multi-party support and that a long-term national strategy to nurture and celebrate our democratic culture and encourage participation be developed to reverse the “particularly steep and persistent” decline should be adopted.

4. 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.7
5. The Commission also recommended looking to expand Kids Voting and to continue to provide and develop curriculum linked resources.8 Kids Voting is a programme for young New Zealanders that encourages them to experience and understand an authentic electoral event. Given that Māori, Pacific 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.
6. 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 informa- tion 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.
7. 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 commu- nity and have the relevant language skills.9
8. A person should be permitted to obtain assistance (from an interpreter or otherwise) to answer 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 satis- factory answer, which may allow a voter to answer the question in a language other than English.
9. 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 popula- tion;
10. 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;

11. 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).

50. 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 the NZBORA.
    

Local Government Elections

13. The recommendation from the Justice and Electoral Committee’s report on the 2013 Local Authority Elections be implemented that the Government review the available teaching material in civics education and investigate commissioning of research into the impact of civics education in New Zealand on voter turnout and voter behaviour.
14. The Local Electoral Act 2001 should be amended so that the notice given about enrolment as a ratepayer elector, and about the election or poll, can be made available in languages other than English.

o. The Local Electoral Act should be amended to make provision for the use of interpreters.

16. Regulation 34 of the Local Electoral Regulations, which specifically deals with how a voting document or special voting document may be marked by voters with specified difficulties in voting, including “is not sufficiently familiar with any language or languages used on the document to vote without assistance”, appears too narrow to extend to assis- tance in providing any necessary identifying details before the voter is issued with voting documents. Thus, such a provision needs to be added by law reform.

q. Regulation 34 of the Local Electoral Regulations also appears too narrow to extend to assisting a special voter with little or no English to make a special voting declaration. Thus, such a provision needs to be added by law reform.

Referenda

18. The Citizens Initiated Referenda Act should be amended to prohibit promoters of peti- tions from deceiving voters into signing petitions that they do not understand if they have limited or no English. Using s 218 of the Electoral Act as a precedent, it should be a specific offence to, by abduction, duress, or any fraudulent device or means, compel, induce, or prevail upon any elector to sign or not sign a petition, similar to provisions prohibiting undue influence in other electoral legislation.
19. As with parliamentary elections held under the Electoral Act, the provisions governing access to interpreters should be streamlined so that voters in referenda with little or no English are able to access an interpreter if necessary.
20. The Referenda Regulations should be amended to at least make it legally possible to provide a ballot paper in Te Reo Māori, and consideration should be given to whether ballot papers should be available in other languages as New Zealand’s demographic makeup shifts.
21. The Referenda (Postal Voting) Act should be amended to require the Returning Officer to exercise his or her discretion under s 36(2)(b) taking account of whether information in other languages is needed to ensure that all electors who are qualified to vote have a reasonable and equal opportunity to vote, using s 75(3)(a) of the Local Electoral Act as a precedent.

5. A person should be permitted in a referendum to obtain assistance to answer questions from scrutineers confirming their name (from an interpreter or otherwise), or be permitted to answer the question 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.

23. The Schedules to the New Zealand Flag Referendums Act 2015 should be amended to make it legally possible to provide a ballot paper in Te Reo Māori and other languages. Section 25(2)(b) of the 2015 Act should also be amended to require the Returning Officer to exercise his or her discretion taking account of whether information in other languages is needed to ensure that all electors who are qualified to vote have a reasonable and equal opportunity to vote, using s 75(3)(a) of the Local Electoral Act as a precedent.
    

Comparable Superdiverse Jurisdictions

10. New Zealand should consider the adoption of compulsory voting to improve voter partici- pation rates, as in Australia and Singapore;

25. New Zealand’s Electoral Commission should be required to adopt a formal multicultural plan like Australia’s Electoral Commission, which focusses on improving voter partic- ipation rates among new migrants, and be properly funded to implement such a plan. New Zealand’s increasing superdiversity makes communicating with all voters more complicated and expensive;
26. Where possible, decisions about how and in what languages information is to be provided should be made by the Electoral Commission, and be rules-based rather than discre-

tion-based, provided that the rules are kept under review so that they can change to reflect New Zealand’s changing demographic makeup;

27. There should be a requirement during elections and referenda to provide information in particular languages based on a statistical analysis of the most commonly spoken

languages in New Zealand. If the decision depends on a regulator’s assessment of what is needed, then the main languages spoken in New Zealand should be a mandatory relevant consideration; and

28. People assisting others to vote should be required to swear a declaration that they will follow the voter’s instructions and preserve secrecy. Breaching this declaration should be an offence.

Table: Summary of measures to assist voters with limited or no English

The Under-Representation of the Ethnically Diverse

35. Voting in democratic elections is a fundamental part of civic life. Despite this,

New Zealand’s electoral participation rate is, as the Electoral Commission warns, suf- fering 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 Pacific peoples have low rates of voting, but new migrants are the lowest.

36. Māori, Pacific peoples and Asians are also under-represented in local government and have low voter turnout in local government elections. For example, the General Social

Survey, which analysed voter turnout in the Auckland local government elections, found that only 53 per cent of Asian respondents voted in the 2010 local body elections.10 This puts those of Asian ethnicity in the company of single parents with dependent children (55 per cent); those living on their own (53 per cent); those not in paid employment (50 per cent); those with personal incomes under $20,000 (55 per cent); those with only high school certificate and equivalent (54 per cent); and those living in the most deprived areas (54 per cent). The reasons for not voting included “I didn’t know enough about the people standing for election” and “I didn’t know about the election”.11

37. There is also low representation in Parliament. Following the 2014 general election,

Parliament is comprised of only 22 per cent Māori MPs, 6 per cent Pacific MPs and 4 per cent Asian MPs. Only two political parties have Asian MPs, and 84 per cent of ministers (in- side and outside Cabinet) are European. Of 20 councillors in Auckland, none are Asian or Māori and only two are of Pacific descent.

Growing Linguistic Diversity

38. New Zealand’s growing ethnic diversity has resulted in a corresponding increase in linguistic diversity.
39. The 2013 Census results show that English is still the most common language in which people hold conversations about everyday things, with 3,819,972 speakers (96.1 per

cent of the population).12 After English, the next most common languages spoken are Te Reo Māori, Samoan and Hindi. Between 2001 and 2013, the number of people who could speak Hindi in New Zealand nearly tripled (from 22,749 people in 2001 to 66,309 in 2013).

40. The number of people who could speak Northern Chinese (including Mandarin) almost doubled between 2001 and 2013 (from 26,514 people in 2001 to 52,263 in 2013).
41. In 2013, however, more than 87,000 (about 3%) people did not speak English. Of those who did not include English as one of their spoken languages, 65.3 per cent lived in the

Auckland region, and most identified with at least one Asian ethnicity (63.8 per cent or 55,320 people). The most common languages spoken by non-English speakers were:

1. Sinitic not further defined (including Chinese) (13.7 per cent of all non-English speakers or 11,961 people);

b. Yue (including Cantonese) (12.1 per cent or 10.551 people);

c. Northern Chinese (including Mandarin) (11.7 per cent or 10,218 people);

d. Samoan (11.2 per cent or 9,825 people);

e. Te Reo Māori (10.2 per cent or 8,916 people).

42. Around 62 per cent of Asians, however, speak a second language (compared with 19 per cent of all New Zealand residents), and four times as many Asians speak a third

language compared to the total population.13

43. According to the 2013 Census, Samoan was the most commonly spoken Pacific lan- guage among the Pacific population, with 60 per cent of New Zealand’s Samoan popu-

lation reporting that they could speak Samoan. This was followed by Tuvalu (66 per cent of the Tuvaluan population in New Zealand), Tongan (53 per cent), Fijian (43 per cent), Tokelauan (34 per cent), Niuean (19 per cent) and Cook Island Māori (13 per cent). Samoan was the third most commonly spoken language in New Zealand (2.2 per cent of the total New Zealand population), behind English (96.1 per cent) and Te Reo Māori (3.7 per cent).

Why Does Ethnically Diverse Representation Matter?

44. Given the importance of civic participation to social cohesion, improving migrant and ethnic voter turnout is an important consideration for policy makers. There have been increased attempts to educate these groups in civics to encourage participation and voting in

recent years. The Electoral Commission’s Statement of Intent for 2014/15–2020/21 considered that lower participation rates for new migrants and the Māori and Pacific communities would require “particular attention” from multiple agencies.14

45. The Electoral Commission’s Report on the 2014 General Election found that, while over- all there is a high understanding of the voting process Asian, Pacific and young voters15

...were more likely than other voters to report having a poor or very poor understanding about the electoral process, and Asian and young voters were more likely to report poorer understanding of how and where to vote and what to do if they could not get to a voting place on election day.

46. The Justice and Electoral Committee’s report on the 2013 Local Authority Elections said that the Committee was aware that the participation rate of Asian voters is low, and of

the need for local authorities such as Auckland Council to encourage participation by Asian voters. Auckland Council has a close partnership with the Electoral Commission on enrolment. The report also said that voting appears to be habit-forming, meaning that an elector who did not vote in 2013 is more likely not to vote in future. Thus, immigrants who arrive with no habit of voting may need more encouragement to vote than the general population.16 The Commit-

tee also recommended that the government review the available teaching material in civics education and investigate commissioning research into the impact of civics education in New Zealand on voter turnout and voter behaviour.17 However, these recommendations have not been adopted.

47. There is a strong correlation between a sense of belonging and an individual’s likeli- ness to vote: the stronger the sense of belonging, the more likely a person is to vote.18

Therefore, as superdiversity grows, an increasing portion of New Zealanders risk being disen- gaged from political processes because they do not understand our system of government – for example, they may not come from a democracy, or may come from a country where voting is not free or fair – or because they do not read or speak English well, or at all.

48. The potential problem is illustrated by the fact that approximately 49 per cent of residence approvals for 2013/14 were granted to people whose source country was

assessed by Freedom House as being either “not free” or “partly free”. The Philippines (with 3,990 people) surpassed the United Kingdom as the largest source country for Essential Skills workers in 2013/14. In addition, the Philippines had the largest absolute increase (920 people or 30 per cent) from 3,070 in 2012/13. The Philippines was ranked “partly free” by Freedom House in 2015. It received a score of 3 for both political rights and civil liberties (with 1 being the most free and 7 the least free). The United Kingdom (3,919 people), India (3,512 people) and Fiji (1,661 people) were the next largest source countries of Essential Skills workers. The UK and India were both ranked “free” in 2015. Fiji was ranked “partly free” (receiving a score of 3 for political rights and 4 for civil liberties). Over the last four years, the number of Essen- tial Skills workers from India has been increasing year on year, with the number approved in 2013/14 double what it was in 2009/10.

The Growing Problem of Under-Representation

49. Lower than average participation by migrants and minorities in civic life would be concerning in any society. However, it is particularly serious in societies which are un-

dergoing a transition to ethnic and cultural superdiversity where the numbers of migrants and ethnic minorities are increasing relative to the European population. Even though migrant vot- ing rates eventually trend towards the average the longer migrants stay in New Zealand, there will continue to be a steady stream of new migrants who may not speak English as a first lan- guage. The downstream effect of this is that the proportion of the public who do not vote may increase. For example, the percentage of non-voters who were Asian increased between the 2008 and 2011 general elections.19 Approximately 80 per cent of Asians living in New Zealand were born overseas as at the 2013 Census.20

50. Such disenfranchisement has impacts at all levels of society. If most new migrants choose not to vote in parliamentary elections, then the resulting Parliament is less

likely to reflect their political aspirations; and Parliament is also less likely to be “representa- tive” insofar as it is supposed to be a House of Representatives. The relevance of, and “buy-in” to, a parliamentary democracy whose inhabitants neither represent nor resemble them may decrease for minorities and new migrants.

51. Low voting rates have similar ramifications at a local level. From community and local boards to district health boards to local authorities, voting representation at a local lev-

el is an equally important part of participating in civic life which may be closed off to those who do not vote. Local government at all levels is intended to reflect the diversity of New Zealand’s communities and to acknowledge that different communities may have different needs, values and aspirations. Section 10 of the Local Government Act 2002 provides that the purpose of local government is to enable democratic local decision making and action by, and on behalf of, communities and to meet the current and future needs of communities for good-quality local infrastructure, local public services, and performance of regulatory functions in a way that is most cost-effective for households and businesses. How can it achieve this goal if large numbers of new New Zealanders feel no connection to it?

52. Finally, low participation rates by ethnic minorities and new migrants will have long- term constitutional ramifications. There is arguably an evolving constitutional conven-

tion that major constitutional change should be authorised by the public through a majority

at a plebecite, even where such referenda would not legally be required.21 For example, New Zealand held referenda on our electoral system – the move to MMP and its retention –

and two referenda will be held over the next two years on the New Zealand flag. There may be further significant constitutional referenda in the near future, on questions such as republican- ism, the entrenchment of the Treaty of Waitangi, the adoption of a supreme law constitution, or adding economic, social, or property rights to the NZBORA.

53. But the rationale for such a convention – that sovereignty arises from the people and therefore major changes to our constitution should be made with the majority’s approv-

al – is undermined if significant portions of New Zealanders do not actually vote in such refer- enda. Genuine mass participation is vital if referenda are to have genuine legitimacy, and this will not be achievable unless we can be confident that New Zealanders from all backgrounds are able to participate.

The Causes of Under-Representation

54. There are many possible reasons why the superdiverse may decide not to vote even though they are able to, including:
    1. Limited or no understanding of the democratic process, or about how New Zealand central and local government works, and who and what exactly they are voting for and why it matters; and/or
    2. No access to information about how they can vote, or what their options are, especially if they cannot get to the voting booth on polling day;22 and/or

c. Limited or no English;23 and/or

4. Lack of confidence that the vote will be fair or secret, or that the democratic process in New Zealand is genuine, based on their experiences in their countries of origin.24

55. This paper considers in particular whether the way in which New Zealand’s electoral law deals with people who speak no or limited English, Māori or New Zealand Sign

Language can be improved. New Zealand has chosen not to have a language qualification to vote or to stand for office. New Zealand’s electoral legislation includes various provisions to fa- cilitate voting by people who speak no or limited English, Māori or New Zealand Sign Language. The question this paper seeks to answer is whether those provisions need to be improved, while striking a balance between ensuring that everyone who is lawfully entitled to vote is

able to vote and protecting the principles of a free and fair secret ballot affirmed by s 12 of the NZBORA.

Parliamentary Elections

57. There is no explicit language qualification on the right to vote in New Zealand. Section 12 of the NZBORA provides that every New Zealand citizen who is of or over the age of

18 years has the right to vote in genuine periodic elections of members of the House of Repre- sentatives, which elections shall be by equal suffrage and by secret ballot.

58. This right is given effect in respect of elections for the House of Representatives by the Electoral Act 1993. In summary, every registered elector is qualified to vote. Every citi-

zen and permanent resident aged over 18 is qualified to be registered as an elector, and indeed must register as an elector. There is no statutory requirement that for a person to be qualified to vote they must speak or understand English, Māori or New Zealand Sign Language.

59. Nor does it follow that a migrant who is a New Zealand citizen or permanent resident will necessarily be able to speak English to any particular standard, as the statistics

set out above show. There are pathways to permanent residence and citizenship which do not require that a particular standard of English be met before a person can reside in New Zealand.

60. For example, under the Citizenship Act 1977 a person can be a New Zealand citizen by birth, descent, or a grant made under special circumstances without necessarily

meeting an English language requirement.25 Similarly, the Investor Plus visa category provides a pathway to permanent residence without having to meet English language requirements.

Entitlement to Vote in New Zealand

61. Section 60 of the Electoral Act 1993 sets out who is qualified to vote in an election:

60 Who may vote

Subject to the provisions of this Act, the following persons, and no others, shall be qualified to vote at any election in any district, namely,—

(a) any person whose name lawfully appears on the main roll or any supplementary roll for the district and who is qualified to be registered as an elector of the district:

(b) any person—

(i) who is qualified to be registered as an elector of the district; and

(ii) who is registered as an elector of the district as a result of having applied for registration as an elector of the district before polling day:

(c) any person who is qualified to be registered as an elector of the district, and was at the time of the last preceding election duly registered as an elector of the district or, where a change of boundaries has intervened, of some other district in which his or her then place of resi- dence within the first-mentioned district was then situated:

(d) any person—

(i) who is qualified to be registered as an elector of the district; and

(ii) who is registered as an elector of the district as a result of having applied, since the last preceding election and before polling day, for registration as an elector of the district or, where a change of boundaries has intervened, of some other district in which that person’s then place of residence within the first-mentioned district was then situated:

(e) any person who is qualified to be registered as an elector of the district pursuant to section 74 and who resides on Campbell Island or Raoul Island or has resided on either of those Islands at any time in the 1 month before polling day:

(f) any member of the Defence Force who is outside New Zealand, if he or she is or will be of or over the age of 18 years on polling day, and his or her place of residence immediately before he or she last left New Zealand is within the district.

62. In essence, the test as to whether a person may vote in a particular electoral district is whether they are registered as an elector in that district and are qualified to be so

registered, with the exception of members of the Defence Force. There are administrative exceptions where, for example, a district boundary has shifted or where their registration has not yet been processed, and provision in s 61 for qualified voters to cast special votes outside of their electoral district. But the general rule is that a person is qualified to vote if they are a registered elector. There is no rule that they must speak or understand a particular language to be qualified to vote.

63. Accordingly, s 74 of the Electoral Act sets out who is qualified to be registered as an elector:

74 Qualification of electors

(1) Subject to the provisions of this Act, every adult person is qualified to be registered as an elector of an electoral district if—

(a) that person is—

(i) a New Zealand citizen; or

(ii) a permanent resident of New Zealand; and

(b) that person has at some time resided continuously in New Zealand for a period of not less than 1 year; and

(c) that electoral district—

(i) is the last in which that person has continuously resided for a period equalling or exceeding 1 month; or

(ii) where that person has never resided continuously in any one electoral district for a period equalling or exceeding 1 month, is the electoral district in which that person resides or has last resided.

(2) Where a writ has been issued for an election, every person—

(a) who resides in an electoral district on the Monday before polling day; and

(b) who would, if he or she continued to reside in that electoral district until the close of polling day, have continuously resided in that electoral district for a period equalling or exceeding 1 month,—

shall (whether or not he or she does so continue to reside in that electoral district) be deemed, for the purposes of subsection (1)(c), to have completed on that Monday a period of 1 month’s continuous residence in that electoral district.

64. In other words, New Zealand citizens and permanent residents are entitled to be regis- tered as electors if they have resided in New Zealand continuously for at least one year

at some point in their lives. Precisely which district they will be registered to vote in depends on where they live.

65. Registration as an elector is technically compulsory under s 82 of the Electoral Act and failure to do so can attract a modest fine of $100 for a first offence and $200 for second

and subsequent offences. It does not appear that any charges have ever been laid under this section.

66. Section 80 of the Electoral Act sets out those who are disqualified from registration as electors (and consequently unable to vote):

80 Disqualifications for registration

(1) The following persons are disqualified for registration as electors:

(a) a New Zealand citizen who (subject to subsection (3)) is outside New Zealand and has not been in New Zealand within the last 3 years:

(b) a permanent resident of New Zealand (not being a New Zealand citizen) who (subject to subsection (3)) is outside New Zealand and has not been in New Zealand within the last 12 months:

(c) a person who is detained in a hospital under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a secure facility under the Intellectual Disability (Compul- sory Care and Rehabilitation) Act 2003, and to whom one of the following applies:

...

(d) a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010:

(e) a person whose name is on the Corrupt Practices List made out for any district.

...

67. Importantly, a person is not disqualified from registration as an elector, and consequent- ly from being able to vote, merely because they do not speak or understand English.

68. Section 83 of the Electoral Act sets out how a person goes about becoming registered:

83 Application for registration

(1) An application for registration as an elector may be made to a Registrar of Electors—

(a) in writing, by completing and signing the prescribed form and returning it to the Registrar of Electors; or

(b) in an approved electronic medium, by providing the information necessary to complete the prescribed form.

(2) An application for registration as an elector must state, in respect of the person making the application,—

(a) the person’s full name; and

(b) the person’s date of birth; and

(c) the place of residence in respect of which registration is claimed, specified in a manner that enables it to be clearly identified; and

(d) the person’s postal address, if different from the address given under paragraph (c); and

(e) the person’s occupation, if any; and

(f) the honorific (if any) by which the person wishes to be addressed; and

(g) whether or not the person is a Maori; and

(h) any other particulars that are prescribed in regulations.

(3) A Registrar of Electors may reject an application for registration as an elector if—

(a) the application is made under subsection (1)(a) and the prescribed form is not—

(i) signed; or

(ii) completed with the details specified in subsection (2)(a), (b), (c), and (h); or

(b) the application is made under subsection (1)(b) and the information provided does not include the details specified in subsection (2)(a), (b), (c), and (h).

(4) If a person does not specify in his or her application whether he or she is a Maori, this Act applies as if the person had specified in his or her application that he or she is not a Maori.

(5) An application for registration as an elector that is rejected by the Registrar of Electors is treated as not having been made.

(6) Where it appears to a Registrar of Electors that a person who has applied for registration as an elector in an electoral district is qualified to be registered as an elector in another elec- toral district, the Registrar must immediately send that person’s application to the Registrar of Electors of that other district.

69. Once again there is no requirement that an application for registration must be com- pleted in a particular language, other than the prospect that the “prescribed form”

referred to may not be intelligible to somebody with little or no English. But there is no particu- lar requirement that the prescribed form itself be exclusively in English, other than the general presumption that English, Māori and New Zealand Sign Language are New Zealand’s “official” languages. This raises the question of whether registration forms should be provided in lan- guages apart from English, especially as New Zealand’s superdiversity grows.

70. There is also no requirement that an elector fill out an application for registration with- out assistance provided that the elector signs the form themselves, and in practice

given that as many as 90,000 electors do not speak English, many electors are likely to receive help filling out their registration forms.

71. Finally, s 89 of the Electoral Act provides that where a Registrar of Electors is satisfied that an applicant for registration is entitled to be registered, they must enter that appli-

cant’s name on the roll for that district.

History of Entitlement to Vote

72. The franchise in New Zealand has never been qualified by reference to language. The New Zealand Constitution Act 1852 limited the franchise to male British subjects over

the age of 21 who met property thresholds. While these provisions were in principle col- our-blind, in practice they restricted the franchise to European males, as Chinese and other

Asians generally were not able to become British subjects, and the communal nature of Māori

land ownership did not meet the property thresholds (although Māori who held land under indi- vidual title could register and vote). Māori parliamentary representation was first established by the Māori Representation Act 1867.

73. While the technical details of registration and voting evolved as New Zealand moved towards the abolition of the property requirement in 1879 and women’s suffrage in

1893, New Zealand never formally required voters to demonstrate that they were literate in the English language before they could vote.

74. In 1975, New Zealand extended the franchise to permanent residents, although they are still not eligible for election as members of Parliament and their right to vote is not

affirmed by s 12 of the NZBORA, which only applies to citizens.

The Role of the Electoral Commission

75. The Electoral Commission, established by s 4B of the Electoral Act, is an independent Crown entity and is specifically required to act independently.26 The Commission’s ob-

jective is to administer the electoral system impartially, efficiently, effectively, and in a way that facilitates participation in parliamentary democracy, promotes understanding of the electoral system and associated matters, and maintains confidence in the administration of the electoral system.

76. The Commission’s functions include (among others) carrying the provisions of the Electoral Act into effect, and promoting public awareness of electoral matters by means

of the conduct of education and information programmes or by other means. To this end the Commission’s powers include initiating, sponsoring, and carrying out any studies or research, making any inquiries, consulting with any persons or classes of persons, and publicising its work, as well as its general powers as a Crown entity.

77. The 2014 General Election was the first where all elements of electoral participation – enrolment, voter education and voting – were within the statutory responsibility of the

Commission. The Commission’s Report on the 2014 General Election stressed 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.27

78. In terms of communications and outreach, the Commission noted28

There are some segments of New Zealand society who are harder to reach and engage in elec- toral processes. Research shows that enrolling and voting has less relevance in the lives of these groups, motivation to enrol and vote is low, and other things in their lives take priority. Specific approaches, work programmes and activities needed to be created to reach these groups.

79. Before the 2014 election, the Commission piloted a new community engagement programme, focussing on “geographical areas/communities with high concentration of

those who are ‘hardest to reach’ with electoral information – Māori, Pasifika and ethnic commu- nities”. The results were:

a. 385 influencer relationships established;

b. 378 influencer agreements established to promote the 2014 election;

c. Influencers reached 377,000 members of the target population;

d. 63 media engagements to promote the 2014 election; and

e. Media engagements reached 506,000 members of the target population.

80. As part of the community engagement pilot programme, the Commission reported that contracts were established with the Chinese New Settlers Services Trust, NZ

Federation of Multi-Cultural Councils Inc, Auckland Regional Migrant Services Trust, and Christchurch Migrant Centre to deliver enrolment, voting and motivational messages direct to their communities.

81. Enrolment and voting brochures were redesigned and available in 21 languages (as well as New Zealand’s three official languages) through Commission staff, community

organisations and other outreach contacts. The languages were chosen with the advice of Sta- tistics New Zealand. The information for voters are developed and produced centrally without any discretion being exercised by registering officers who are temporary staff. 29

82. The Commission said it will be looking for ways to improve outreach and information for Asian, Pacific and young voters.30 However, the Commission needs to be properly

funded to communicate with all New Zealanders, especially as superdiversity makes this more complicated and expensive. Yet the Commission said in its Report on the 2014 General Election that its overall budget for the public information campaign was broadly the same as for the last three elections, meaning a significant decrease in real terms.31 There has been a significant increase in the last 10 years of the number of New Zealand voters not born here and speaking a different language.

Voting on Polling Day and Election Staff

83. This section considers how the Electoral Act currently deals with a voter who is law- fully entitled to vote, but who speaks little or no English, Māori or New Zealand Sign Language, when they come to vote on polling day. There appears to be scope to improve the

availability of interpreters, the issue of ballot papers, and assistance to voters to actually vote.

The Electoral Commission advises that in 2014, around 2690 voting place staff out of a total of 14,854 staff employed on polling day cited the ability to speak a second language in their

job application – approximately 18 per cent. The Commission appoints electoral officers which best reflect the community they are working in. This includes hiring issuing officers who can speak the languages of the voters they are likely to be serving in a particular electorate or com- munity.32 Many of the accommodations discussed below depend on the discretion of Returning Officers, polling place managers, issuing officers and other electoral officials. Because general elections only happen once every three years, most of the staff involved in the administration of an election work on relatively short-term contracts.

84. All of the staff employed or engaged by the Electoral Commission are “electoral offi- cials”. Section 20A of the Electoral Act provides that the Electoral Commission may

give oral or written directions to all or any electoral officials, who must “exercise or perform his or her powers, duties, and functions in accordance with any directions given by the Electoral Commission”. This means that the Commission can give guidance and directions to electoral officials about how they exercise their functions and powers in terms of the accommodations made for those with little or no English. Section 158A gives the Commission and Returning Officers similar power in respect of polling place officials.

85. The Commission already produces an extensive and detailed confidential operational manual to Returning Officers which constitutes directions from the Commission as

to how Returning Officers are to deliver elections. This should therefore include directions to electoral and polling place officials about how they should exercise their powers, duties and functions in relation to voters with little or no English so that there is a fair and consistent ap- proach across all of New Zealand.

86. Section 20B of the Electoral Act requires the Commission to designate an electoral offi- cial as the Returning Officer for each district. Section 20C provides that the Returning

Officer may delegate any of their functions, duties, or powers, except for the power of delega- tion, to another electoral official.

87. Section 158 further provides that for each polling place, a Returning Officer must appoint in writing as many polling place officials as the Returning Officer thinks are required for the conduct of the poll, and the preliminary count of votes, at that place. Polling place officials may be authorised as issuing officers, designated as interpreters, or to act as the manager of that polling place.

88. There are no statutory criteria as to the personal characteristics of appointees (al- though they cannot be candidates for election). On appointment, Returning Officers,

electoral officials and polling place officials must make a declaration that they will “well and

truly serve” in the relevant office, and will not do anything forbidden by s 203 of the Act, includ- ing disclosing information obtained in their official capacity, interfering with a voter, or disclos- ing voter information (such as who a voter voted for or what their ballot paper number is).

89. The Electoral Commission’s Report on the 2014 General Election stated that Returning Officers received three days of induction training in April 2014 followed by four further

days of training in June/July 2014. The training was developed and delivered with assistance from more than 20 experienced field staff. Film footage obtained during the 2011 election and through simulations was a key element in delivering training to staff performing many different roles. Follow-up regional training took place during August and September 2014. The Commis- sion intends to expand regional training with an emphasis on targeting services to the local community (for example through recruitment and voting place selection).

90. Over 16,000 staff were trained in the two and a half weeks before Election Day. Be- cause many Election Day staff work during the week, training is generally delivered in

the evenings or weekends. In 2014, polling place staff were required to watch a DVD, read an instruction manual and complete a study guide prior to attending a face-to-face training ses- sion. Ordinary Issuing Officers received 2 hours, Special Issuing Officers 3.25 hours and Voting Place Managers almost 5 hours of training.

91. The primary aims were for staff to:

a. Understand the responsibilities, expectations and importance of their role;

b. Understand how their role fits into wider voting services being delivered;

100. Practise the key tasks they would undertake in accordance with legislative and opera- tional requirements; and

4. Have an awareness of safety, privacy and security issues – for both people and voting materials.
   

Recommendations

92. The Commission should emphasise when training staff that New Zealand is a superdiverse society with eligible voters from about 220 ethnicities speaking

about 160 different languages, but that all have the same right to vote. New Zealand’s de- mographic transition can provide the context for further training on the challenges faced by voters with little or no English, the accommodations the legislation makes to assist them to vote, and how polling place officials and issuing officers can avoid unconscious bias and make sure that voters with little or no English are able to use the accommoda- tions afforded to them.

93. I support the recommendation of the Electoral Commission in its Report on the 2014 General Election that election staff pay rates should be reviewed 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 all New Zealanders vote. Proper pay is needed to attract candidates of the right calibre.33

94. I also support the Commission looking to expand Kids Voting and to continue to provide and develop curriculum linked resources.34 Kids Voting is a programme

for young New Zealanders that encourages them to experience and understand an authentic electoral event. Given that Māori, Pacific and Asian voters are younger than Eu- ropean New Zealand voters, this should help engage and inform them of the importance of voting and help to establish a habit of doing so.

Interpreters

95. The Electoral Act makes detailed provision for the discretionary appointment of inter- preters at polling places to assist voters who do not speak English. While in principle,

the appointment of interpreters would seem to be a straightforward way to help people who

cannot speak English to vote, there are a number of difficulties, both in a practical sense and with the provisions of the Act, which make it doubtful that the provisions work as intended. Indeed, these provisions are not widely publicised or well understood.

96. In 2014, the Electoral Commission employed five interpreters for the 2014 general elec- tion and they were utilised in the Nelson, New Lynn, Mt Roskill and Maungakiekie elec-

torates. The Commission does not hold records of how often these interpreters were used.35

97. The main practical difficulty with appointing interpreters at polling places is the near-impossibility of ensuring that every polling place is staffed by sufficient inter-

preters, speaking sufficient languages, such that every person with little or no English who is entitled to vote and who wishes to do so can receive language support.

98. Without comprehensive coverage, the ability of voters without English to obtain sup- port from an interpreter depends on whether:
    1. The district’s Returning Officer considers that an interpreter should be appointed to a particular polling place at all; and
    2. The Returning Officer considers that an interpreter who speaks the relevant language other than English should be available at a particular polling place; and

c. There is in fact a suitable interpreter available for appointment; and

4. Voters who speak the languages which the interpreter speaks know which polling place or places the interpreter is at.

99. While the Electoral Act permits the appointment of interpreters to assist voters who do not speak English on polling day, it does not require that qualified interpreters be

appointed for each polling place, or indeed that interpreters are appointed at all.

100. Section 158(3)(b) of the Electoral Act provides that the Returning Officer for each district may, in relation to a polling place, designate in writing one or more of the polling

place officials as interpreters. Section 159A(1) of the Act provides that whenever the Return- ing Officer designates polling place officials as interpreters, the Returning Officer must, at the request of a candidate, give the candidate the names of the interpreters, and that regulations may be made under s 267 of the Act to prescribe procedures governing the use of interpreters. Finally, s 165(1) of the Electoral Act contains an exception to the general rule that voters are not to be communicated with in a polling place, allowing an interpreter to assist the person issuing a voter with a ballot paper if necessary.

101. The Electoral Regulations 1996 also impose prior requirements before a person can use an interpreter, as follows. Regulation 66 of the Electoral Regulations 1996 prescribes

procedures for the use of an interpreter. Regulation 66(2) provides that, when it appears to a Returning Officer that an elector is unfamiliar with English, the Returning Officer must first draw the elector’s attention to a prominently displayed poster containing information on how to vote, both in English and in other languages before an interpreter can be called on (assuming one is available).

102. Regulation 66(3) provides that the Returning Officer may only call on an interpreter to assist if the required poster is not in fact available or if the elector has seen the poster

but still requires assistance.

103. Finally, reg 66(4) reflects s 159A by providing that the Returning Officer must provide the names of any interpreters appointed by the Returning Officer and the polling places

in respect of which they have been appointed to a candidate on request. This may be helpful for candidates in terms of voter mobilisation, but it is not necessarily useful for voters.

Recommendations

104. The regulations governing the availability of interpreters should be made less complex so that there are fewer preconditions imposed before a voter can

access an interpreter. The requirement that voters can only make use of an interpreter if they can show that they do not understand a poster should be deleted. Voters should be

able to make use of an interpreter if a suitably trained interpreter is available.

105. The Commission should also seek to employ more interpreters for Auckland ethnoburb booths, for example, which are likely to have more foreign language

speakers. 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 commu- nity and have the relevant language skills.36

Issuing Ballot Papers

106. One of the ways in which we ensure that an election is fair is to prohibit voters from voting twice or from impersonating other people. It is reasonable that issuing officers

should be able to make some inquiries of voters before issuing ballot papers to them, but this practice should not be able to be used as a de facto literacy test, either intentionally or by mistake. Issuing officers need training to ensure that they do not exercise unconscious bias or discriminate when asking the questions.

107. Before an elector can be issued with ballot papers they must confirm who they are. The Electoral Act makes provision for an elector to confirm their identity with the assistance

of another person or by gesture where they do not speak English. However, the issuing officer may ask further questions, either on their own initiative or at the request of a scrutineer. The Electoral Act is silent on whether a person who does not speak English can receive assistance to answer these questions, which raises the prospect of a qualified voter being denied the right to vote.

108. Section 167(1) of the Electoral Act requires an issuing officer to issue ballot papers to every elector who applies to vote. Under s 167(2) of the Electoral Act, an elector apply-

ing to vote must verbally give or confirm their name, and any other particulars necessary to find the elector’s name on the roll. Section 167(2A) of the Electoral Act provides that if an elector cannot verbally give or confirm their name because of an inability to understand English or because of a physical disability, the elector may comply with that requirement by gesture or any other means with the assistance of a person nominated by the elector.

109. However, s 166 of the Electoral Act enables the issuing officer to make further queries of an elector before permitting that person to vote. The officer must make those que-

ries if required to do so by a scrutineer. The questions are:

Are you the person whose name appears as AB in the electoral roll now in force for the [name of district] Electoral District?

Have you already voted at this election in this or any other electoral district?

110. Section 166(2) requires issuing officers to obtain signed answers in writing. A person who fails to answer the questions or fails to give the “correct” answers (that is, yes

followed by no) is liable to a fine of $1,000 and is prohibited from voting then or afterwards at that election. Deliberately false answers also attract a penalty of $1,000.

111. There is no provision for the use of interpreters or other assistance to answer these questions, which raises the prospect of an otherwise qualified voter being denied the

right to vote simply because they did not understand the questions being put to them, or were not able to answer the questions in written English.

Recommendation

112. A person should be permitted to obtain assistance (from an interpreter or other- wise) to answer all 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 a language other than English, rather than in written English.

Content of Ballot Papers

113. Section 150(1) of the Electoral Act prescribes the form of ballot papers used in general elections as follows:
     
114. Section 150 further prescribes requirements about how the names of candidates and parties should be ordered and presented, including permitting the Electoral Com-

mission to abbreviate a candidate’s name if it is too long: s 150(19). No provision is made for making the ballot paper available in languages other than English, although Māori is an official language. Similar provisions apply to the format of a special ballot paper issued to a special voter under the Electoral Regulations 1996.

Recommendation

115. 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 percent- age of the population.

Casting the Vote

116. The general rule in New Zealand is that voting is to be conducted by secret ballot; that is, the only person who should know how a person has voted is the voter. This is

achieved by requiring voters to vote alone. However, this requirement can potentially act as an obstacle to a person voting if they do not understand English well enough to be able to vote without assistance. Accordingly, the Electoral Act permits such electors to vote with assis- tance, which creates the risk of voter fraud.

117. Voting Place Managers and Returning Officers do not hold records of how many voters with little or no English asked for assistance from an electoral official or were provid-

ed assistance by a friend or family member because of language needs. There is no separate application process that needs to be completed in order to be assisted to vote. It happens seamlessly – but this also means no records are available.

118. Section 168 of the Electoral Act incorporates the general rule that an elector should vote “alone and secretly”, reflecting the right affirmed in s 12 of the NZBORA to partici-

pate in elections by means of secret ballot.

119. Section 170 provides an exception to this rule for an elector who is blind, disabled, illiterate or insufficiently familiar with the English language to vote without assistance.

Section 170(2) provides that such an elector may request that a nominated third person, or the issuing officer, accompany the elector into the voting booth and either assist the voter to vote or mark the ballot paper on the voter’s instructions. Section 170(3) enables the voter to request that another person inspect the paper before it is put in the ballot box, to ensure that their instructions have been complied with.

120. In other words, contrary to the general rule that elections should be conducted by secret ballot, a person who speaks little or no English may bring somebody else into

the voting booth with them, who may well end up voting on their behalf. While the Act implicitly requires that the person assisting act on the voter’s instructions, there is no specific penalty for a person who does not do so. Section 170(5) makes it an offence to say how the person you are assisting to vote cast their ballot.

121. Section 218 of the Electoral Act, which creates an offence of undue influence, likely will be engaged where an elector exercising their rights under s 170 has been mistreated.

Section 218 renders it a corrupt practice where a person, among other conduct:

... by abduction, duress, or any fraudulent device or contrivance, impedes or prevents the free exercise of the franchise of an elector, or thereby compels, induces, or prevails upon an elector either to vote or to refrain from voting.

122. This provision has not been tested in the context of s 170, but it is possible that in some circumstances (such as where a voter has been misled as to the effect of their vote or

as to whom their vote has been cast for) an offence would be committed. Such misconduct could also be investigated in the context of an electoral petition heard before the High Court if it has impacted the outcome of an election.

History of this Provision

123. The Act’s predecessor – the Electoral Act 1956 – was the first Act in New Zealand’s electoral law to make provision for non-English speaking voters:

108 Blind, disabled or illiterate voters—

(1) Any elector who is wholly or partially blind, or is unable to read or write (whether because of physical handicap or otherwise), or is not sufficiently familiar with the English language to vote without assistance, may vote in accordance with the provisions of this section.

(2) At the request of any voter who has received a ballot paper the Deputy Returning Officer shall accompany him into one of the inner compartments provided for the marking of ballot papers, and the ballot paper may there be marked by the voter with the assistance of the Deputy Returning Officer or may be marked by the Deputy Returning Officer in accordance with the instructions of the voter.

(3) The person assisting the voter shall sign his name on the back of the ballot paper and shall add the words “Witness for blind or partially blind person” or “Witness for person not familiar with the English language”, as the case may be, and shall fold the ballot paper so that its face cannot be seen before depositing it in the ballot box.

(4) A poll clerk or some other person nominated by the voter shall also accompany him into the inner compartment and may, if so desired by the voter, inspect the ballot paper before it is deposited in the ballot box...

124. The current Act allows non-English speaking voters to have a person of their choosing mark (or assist with marking) their ballot paper, while the 1956 Act required the Deputy

Returning Officer to mark (or assist with marking) their ballot paper.

125. During the 1956 Act’s second reading, a number of members of Parliament observed that the 1956 Act was intended to ensure that everybody could vote. However, the

effect of s 108 in terms of electors who simply did not speak English was not specifically ad- dressed during the debates on the Electoral Bill (as it then was).

126. Then Attorney-General Hon Jack Marshall observed that:37

The principles which we have tried to apply in the drafting of this Bill are worthy of mention. The first is that no qualified person should be deprived of the opportunity to register or to vote. In other words everyone who is entitled to vote should be able to vote...

127. Rt Hon Walter Nash, speaking for the Opposition, agreed:38

The objective on both sides was the same. We wanted to find a way by which everyone qualified to vote would have the right to vote.

128. Sir Eruera Tirikatene described the purpose of s 108 of the 1956 Act in particular:39

The Bill may not be absolutely perfect but I do believe an endeavour has been made to make things easier for electors. There is provision for those who are not capable of voting. It is left for the returning officer or poll clerk, or other agreed persons, to assist blind, disabled, or illiterate voters. That is in clause 108. A lot of elderly people will have to depend on that provision. It is a new provision that such people can take a friend with them to see that the voting is done properly. That is a step in the right direction.

129. Previous New Zealand electoral legislation was silent on the question of non-Eng- lish speaking voters.40 In essence, such legislation presumed that anybody who was

qualified to vote would also be able to speak English, such was the very different demographic context in 1950s New Zealand.

Recommendation

130. Persons assisting those with little or no English should have to sign a declara- tion 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 instruc- tions are complied with, and it is an offence to say how someone voted if you were the person assisting.

131. 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 assist-

ing, just as there is for divulging how they voted, in subsection (5). I note that s 58(2) of the New Zealand Flag Referendums Act 2015 creates just such an offence, stating:

Every person commits an offence and is liable on conviction to a fine not exceeding $5,000—

(a) who—

(i) is authorised by a voter to mark the voting paper under section 27(4)(b); or

(ii) is the Returning Officer or a person acting under a delegation under section 17(1) and marks a voting paper under section 27(5); and

(b) who does not mark the voting paper in accordance with the voter’s instructions.

Special Votes

132. The Electoral Act also makes provision for special votes, reflecting the reality that not everybody will be able to attend a polling place on polling day to vote.41 Special voting

can pose particular challenges to those with limited English because the administrative re- quirements in ensuring that special voting is not a vehicle for electoral fraud can make it more difficult for such voters to vote.

133. Special voting ballot papers are prescribed by reg 17 of the Electoral Regulations 1996 and are broadly similar to standard ballot papers. There is no provision for such papers

to be made available other than in English.

134. Regulation 20 of the Electoral Regulations provides that the application for a special vote may be made in person by the elector, by a written application signed by the

elector, by a written application signed on behalf of the elector pursuant to an authority signed by the elector, or in any other manner, if the person issuing the ballot paper is satisfied that the application is made in good faith and that it is not practicable to make it in one of the pre- scribed ways. This provision should assist a person with little or no English to be able to apply for a special vote.

Advance and Hospital Voting

135. Since 2011, it has been possible to cast special votes in person and in advance of polling day without having to give a reason. Such votes are governed by reg 24 of the

Electoral Regulations 1996 and are treated similarly to votes cast in person on polling day – for example, reg 24(6) provides that s 170 of the Electoral Act applies where an advance voter “is not sufficiently familiar with the English language to vote without assistance”.

136. The same observations made above about the risks associated with this accommoda- tion also apply. The application of s 170 overrides the general rule regarding advance

votes set out in reg 24(6) that every person present when a special vote under this regulation is exercised by a voter:

a. Shall refrain from looking at or becoming acquainted with the vote given by the voter; and

2. Shall not in any way attempt to influence or interfere with the voter in the exercise of his or her vote; and

c. Shall not allow any person:

i. To see or become acquainted with the voter’s vote; or

ii. To assist the voter to vote; or

iii. To interfere in any way with the voter in relation to his or her vote.

137. Similar arrangements apply in respect of hospital votes, which are special votes exer- cised in accordance with reg 23 of the Electoral Regulations at a “hospital, maternity

home, or institution for the reception or relief of persons requiring medical or surgical or other treatment or suffering from any illness, disease, or disability, or for convalescent, aged, infirm, incurable, destitute, or poor people”.

Special Voting with Declarations

138. However, most special votes must be accompanied by a declaration. The form of the required declaration varies depending on whether the special voter was present at the

issuing office or polling place when the vote was cast. The declaration must include a reason why a special vote is necessary. Both declarations are prescribed by the Electoral Regulations as being in English only.

139. Voters with little or no English may struggle to understand the requirements of the dec- laration. Section 172(8) of the Electoral Act provides that:

Subject to the provisions of this section and section 61, and to the provisions of any regulations made for the purposes of this section, all the provisions of this Act shall, as far as applicable and with the necessary modifications, apply with respect to voting by special voters and to their votes (emphasis added).

140. This provision should allow a person making a special vote declaration to be assisted by an interpreter or other nominated person, if they do not understand what they must

do to cast a special vote.

Casting a Special Vote

141. The casting of a special vote is governed by reg 27 of the Electoral Regulations. As with hospital and advance votes, s 170 of the Electoral Act applies where the special vote is

cast at the polling place or issuing office, with the same potential issues around voter fraud.

142. However, where the special vote is cast away from a polling place or issuing office (that is, by post), then reg 27(10) simply provides that the person who witnesses the

declaration (unless they are a witness authorised for that purpose by a candidate) may assist the voter to mark the ballot paper, or mark the ballot paper on the voter’s instructions. Section 170(5) of the Electoral Act makes it an offence to divulge how the person you assisted voted under any regulations to the Act.

Summary of Recommendations on Electoral Act and Electoral Regulations

143. The Electoral Commission should emphasise in training electoral staff the challenges faced by voters with little or no English, the accommodations that

the legislation makes to assist them to vote, and how polling place officials and issuing officers can avoid unconscious bias and make sure that voters with little or no English are able to use the accommodations afforded to them.

144. The regulations governing the availability of interpreters should be streamlined, and the Electoral Commission should also seek to employ more interpreters, or

more issuing officers who have language skills relevant for the voting place they are hired to staff.

145. A person should be permitted to obtain assistance to answer questions (from an interpreter or otherwise), or be permitted to answer questions about eligibility

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 ques- tion in a language other than English, as opposed to in written English.

146. Ballot papers should be available in all of New Zealand’s official languages. As linguistic diversity grows, it may be appropriate to consider making ballot papers

available in other languages.

147. 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 in- spect the ballot paper before it is put in the ballot box to ensure their instructions are com- plied with, and it is an offence to say how someone voted if you were the person assisting.

148. 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).

Local Government Elections

149. The right to vote in parliamentary elections affirmed by s 12 of the NZBORA does not appear to extend to local body elections or polls, although this proposition has not

been tested in court.

150. As with parliamentary elections, there is no statutory requirement that for a person to be qualified to vote they must speak or understand English, Māori or New Zealand Sign

Language. Qualification to vote in local elections flows from being qualified to vote in a parlia- mentary election and being resident in the relevant area.

151. Local elections can be conducted either by booth or postal voting, unlike Parliamentary elections which can only be conducted by booth voting. All local authorities have used

postal voting since 1986 with the exception of Hutt City Council which used booth voting once in 1992.

152. A small number of local authorities will participate in a trial of online voting for the 2016 local elections. Although regulations enabling such a trial to be held have not yet been

made, there is the potential for instructions, forms, voting documents and candidate profile statements to be made available in languages other than English, so that an online voter can receive information in a language of their choice.

Right to Vote in Local Elections

153. A person is entitled to vote if they are on the electoral roll as a residential or ratepayer elector for the relevant local authority, or have applied to be on the roll before the last

day of the voting period.

154. A person who is registered as a parliamentary elector will automatically be registered as a residential elector. However, registration as a ratepayer elector is more complex and

may be difficult for a person with limited or no English.

155. Sections 20, 23 and 24 of the Local Electoral Act 2001 set out the general rules as to who may vote in a local election or poll.

20 Right to vote in election or poll

(1) Every person whose name appears on the electoral roll in force in any district of a territorial authority or in the local government area of any other local authority as a residential elector or a ratepayer elector is, unless the person has ceased to possess a qualification as a resi- dential elector or ratepayer elector, an elector and is entitled to exercise 1 vote—

(a) at every election for which that roll indicates the elector is qualified to exercise a vote; and

(b) at every poll for which that roll indicates the elector is qualified to exercise a vote.

(2) Every person who has qualified as a residential elector before the close of voting, and who applied to enrol as an elector not later than the day before the close of voting but whose name does not appear on the electoral roll or whose voting entitlements are incorrectly recorded on that roll, is an elector and is entitled to exercise 1 vote—

(a) at every election for which that elector is qualified to exercise a vote; and

(b) at every poll for which that elector is qualified to exercise a vote.

(3) Every person who has qualified as a ratepayer elector before the close of voting and who applied to enrol as a ratepayer elector not later than the day before the close of voting but whose name does not appear on the electoral roll or whose voting entitlements are incor- rectly recorded on that roll, is an elector and is entitled to exercise 1 vote—

(a) at every election for which that elector is qualified to exercise a vote; and

(b) at every poll for which that elector is qualified to exercise a vote.

(4) No person is entitled more than once at the same election or poll.

156. Sections 23 and 24 set out who qualifies as a residential elector and ratepayer elector.

23 Residential electors

Every parliamentary elector is qualified as a residential elector of a local government area if the address in respect of which the person is registered as a parliamentary elector is within the local government area.

24 Ratepayer electors

(1) Every parliamentary elector is qualified as a ratepayer elector of a region, a district, a local board area, or a community if the address for which the person is registered as a parliamen- tary elector is outside the region, district, local board area, or community, and—

(a) that person is identified in the appropriate valuation roll as the sole ratepayer in respect of a rating unit within the region, district, local board area, or community; or

(b) that person is nominated to be enrolled as a ratepayer elector in respect of a rating unit within the region, district, local board area, or community, owned by 1 or more ratepay- ers, none of whom is qualified as a residential elector within the region, district, local board area, or community.

(2) Subsection (1) does not authorise the nomination of different persons by the same ratepayer or ratepayers in respect of different properties within the same region, district, local board area, or community.

157. In essence, every “parliamentary elector” is entitled to vote in local elections. This means that the qualifications to vote as a local elector effectively mirror those gov-

erning voting as a parliamentary elector. Persons who are disqualified from registration as parliamentary electors under s 80 of the Electoral Act 1993 are accordingly unable to be regis- tered to vote in local body elections.

158. Sections 38 and 45 of the Local Electoral Act 2001 require the electoral officer for each territorial authority to compile a roll of electors for that district. Residential electors are

determined by use of a computer-derived list provided by the Electoral Commission, since all parliamentary electors in a district are, by virtue of s 23 of the Local Electoral Act, qualified as residential electors in that district. This paper addresses elsewhere the challenges which can be faced by a non-English speaker in becoming a parliamentary elector.

159. However, because a ratepayer elector may not necessarily be resident in the district or districts in which they pay rates, there is a different and more complicated process

for registration as a ratepayer elector. Section 39 of the Local Electoral Act requires that public notice of the procedures for enrolment as a ratepayer be given in various forms before an election is held. Regulation 15 of the Local Electoral Regulations prescribes what such a notice must state:

15 Public notice of procedures for enrolment as ratepayer on electoral roll

For the purpose of section 39(1)(a) of the Act, the public notice of the qualifications and proce- dures for enrolment or nomination as a ratepayer elector must state the following:

(a) that a person may be a ratepayer elector for a local government area if he or she is listed on the district valuation roll as a ratepayer of a rating unit in that area and the address in respect of which he or she is registered as a parliamentary elector is outside that area; and

(b) that any organisation, body, society, or association (whether corporate or unincorporate), or any joint owners, that are ratepayers in respect of a rating unit may nominate as a ratepayer elector any member or officer of the organisation, body, society, or association, or one of the joint owners, as long as the person nominated is registered as a parliamentary elector for an address that is outside the local government area in which the rating unit is situated; and

(c) that eligibility to enrol or be nominated depends on criteria in the Act and in the regulations; and

(d) that only 1 enrolment or nomination may be made for any local government area, even if more than 1 rating unit is owned in that area; and

(e) that no person may be enrolled or nominated more than once for any local government area; and

(f) that existing ratepayer electors should have already received an enrolment confirmation form; and

(g) that if a person believes that he or she may be eligible to enrol as a ratepayer elector, that person must obtain an enrolment form from the local authority.

160. The Act and Regulations are silent as to the language the information about enrolment as a ratepayer elector must be made available, and it appears that in most cases the

information is only made available in English. In addition, the prescribed enrolment form for ratepayer electors in sch 1 to the Regulations is in English only.

161. There appear to be similar problems for public notice of the election or poll under s 52 of the Local Electoral Act, and relevant regulations only being in English.
162. Whether this is adequate to properly enable those with little or no English to vote de- pends on whether adequate assistance is provided.
     

Recommendation

163. The Local Electoral Act 2001 should be amended so that the notice given about enrolment as a ratepayer elector, and about the election or poll can be made

available in languages other than English.

Content of Voting Documents

164. The Local Electoral Act 2001 permits local authorities to conduct elections and polls either through booth voting (similar to parliamentary elections) or through postal voting.

Different issues around English language limitations arise depending on which option is chosen.

Issuing Voting Documents – Booth Voting

165. If the local authority is conducting an election by means of booth voting, reg 75 of the Local Electoral Regulations provides that voters must state their name to the electoral of-

ficer and provide any necessary identifying details before they are issued with voting documents:

75 Issue of voting documents

(1) Subject to this regulation, every electoral official in charge of a polling booth must issue voting documents to all voters who apply to vote at that polling booth.

(2) Every voter applying to vote must state his or her name to the electoral official, and must give any details that are necessary to identify the entry on the electoral roll for that voter.

(3) If the name of the voter appears on the roll and it appears from the roll that he or she is quali- fied to vote,—

(a) the electoral official must issue to the voter a voting document for any election or poll for which the voter is eligible to vote; and

(b) the roll must be marked to record the issue of voting documents to that voter.

166. This requirement could act as a barrier to voting for those who are not confident in the English language, as they may not understand or be able to fulfil the requirement to

identify themselves to the satisfaction of the electoral official without assistance.

167. This issue does not arise in the context of elections conducted by postal voting, where voting documents are simply posted to residential addresses, with no requirement that

voters positively identify themselves prior to casting a vote.

Recommendation

168. Regulation 34 of the Local Electoral Regulations which specifically deals with how a voting document or special voting document may be marked by voters with

specified difficulties in voting, including “is not sufficiently familiar with any language or languages used on the document to vote without assistance,” appears too narrow to ex- tend to assistance in providing any necessary identifying details before the voter is issued with voting documents. Thus, such a provision needs to be added by law reform.

Content of Voting Documents

169. There is a general requirement in the Act and Regulations for both postal and booth voting that the electoral officer (if he or she considers it necessary) provide informa-

tion in other languages as part of the voting documents to ensure electors are able to vote in local elections. However, this remains at the discretion of the electoral officer. For booth voting the Regulations require the electoral officer to provide translations of the “Directions to voter” section if he or she considers it necessary.

170. Section 78 of the Local Electoral Act provides that “an elector may cast a vote using a voting document during the voting period in accordance with regulations made under

this Act”.

171. Section 75 of the Act sets out what voting documents for local government elections must contain. These requirements are effectively mirrored in s 76 for polls conducted

by local authorities, and in reg 36 of the Local Electoral Regulations 2001 which deals with the information that special voting documents must contain.

75 What voting documents for election must contain

(1) Every voting document for an election must contain the following directions to the voter:

(a) the voter should read the directions carefully before voting; and

(b) if the First Past the Post electoral system is being used at the election,—

(i) how and where on the voting document a voter exercises his or her vote (for exam- ple, a tick against a box); and

(ii) the minimum and maximum number of candidates for which a voter may exercise his or her vote; and

(c) if the Single Transferable Voting electoral system is being used at the election,—

(i) how and where on the voting document a voter indicates his or her preferences; and

(ii) the minimum and maximum number of candidates for which a voter may indicate his or her preferences; and

(d) what the voter should do if he or she spoils the voting document; and

(e) what the voter must do with the voting document after voting; and

(f) any other relevant requirements that are particular to the voting method or the electoral system that is being used.

(2) In addition to the directions to the voter, every voting document for an election must contain the following:

(a) information necessary to identify the elector on the electoral roll and the voting docu- ments issued to that elector; and

(b) the name of the local government area to which the election relates; and

(c) the position or positions to be filled at the election; and

(d) the name under which each candidate is seeking election, and the name of any organ- isation or group with which the candidate claims to be affiliated or, if applicable, the status of the candidate as an independent candidate; and

(e) information that is necessary to distinguish any candidates that have the same or very similar names; and

(f) an illustration of how and where the voter indicates his or her choice or preferences, as the case may be; and

(g) a warning describing the offences that a person may commit under sections 122(1)(a), 123(1)(c), and 124(b).

(3) Voting documents for an election may contain any other information that the electoral officer considers appropriate to ensure that—

(a) all electors who are qualified to vote have a reasonable and equal opportunity to vote (including, without limitation, information in a language other than English)

(b) the secrecy of the vote is maintained. [Emphasis added.]

172. Section 75(3)(a) specifically envisages that information in a language other than Eng- lish can be included as part of a voting document to ensure that “all electors who are

qualified to vote have a reasonable and equal opportunity to vote”. This is helpful and should be replicated in other electoral referenda legislation.

173. Regulation 71 of the Local Electoral Regulations sets out what the electoral officer must provide for an election or poll using booth voting in an election using the First Past the

Post electoral system. Regulation 116 sets out the same for an election using the Single Trans- ferable Voting electoral system.

71 Booths, ballot boxes, and voting documents, etc

The electoral officer must provide the following things for holding an election or poll using booth voting:

(a) 1 or more polling booths at each official place at which voting documents are to be issued and, in each booth, 1 or more inner compartments that provide adequate facilities for each elector to vote in secret; and

(b) in each polling booth, 1 or more suitable containers that are able to be secured and that have a slit in the upper side by which the voting documents may be put into the container, to be used as ballot boxes; and

(c) if the electoral officer considers it desirable in order to ensure that every elector has a reasonable and equal opportunity to vote, translations in whatever languages the electoral officer considers necessary of the “Directions to voter” section of the voting document; and

(d) at each polling booth, 1 or more copies of the electoral roll; and

(e) a sufficient number of voting documents.

174. Regulation 71(c) provides that the electoral officer, if they “[consider] it desirable in or- der to ensure that every elector has a reasonable and equal opportunity to vote”, must

include translations in whatever languages the electoral officer considers necessary of the “Di- rections to voter” section of the voting document. Once again, there is no requirement that the officer do so, and no guidance as to how she or he exercises this discretion.

Recommendation

175. Section 75(3)(a) of the Local Electoral Act should be replicated in other electoral and referenda legislation. It specifically envisages that information in a language

other than English can be included as part of a voting document to ensure that “all elec- tors who are qualified to vote have a reasonable and equal opportunity to vote”.

Candidate Profile Statements

176. Section 61 of the Local Electoral Act allows a candidate to provide a candidate profile statement to the electoral officer to be included with voting documents. These state-

ments contain the candidate’s name and principal place of residence, and information about the candidate’s policies.

177. The Act envisages that these statements can be provided in languages other than Eng- lish or Te Reo Māori, but the candidate must also provide a translation of that candidate

profile statement into English.

178. Section 61(2) of the Act provides:

(2) A candidate profile statement,—

(a) if—

(i) in English or Māori or both, must not exceed 150 words in each of the languages used in the statement:

(ii) in a language other than English or Māori, must not exceed 150 words, or the equivalent, if the language uses symbols rather than words (including any translation of those words into another language provided by the candidate) [Emphasis added.]

179. Candidate profile statements can be in English, Māori, or another language. If the candidate profile statement is in English and Māori, s 61(3) of the Act requires the infor-

mation to be substantially consistent in each language.

180. If the candidate profile statement is in a language (wholly or in part) other than English or Māori, reg 27 of the Regulations requires the candidate to provide a translation of the

material into English or Māori to the electoral officer.

Polling Day

181. As in general elections, voters with little or no English are able to nominate someone else to mark, or assist them with marking, their voting documents in local elections.42

Regulation 34 of the Local Electoral Regulations provides:

34 Specified difficulties in voting

(1) A voting document or special voting document may be marked in the manner described in subclause (2) if the voter—

(a) is physically impaired; or

(b) is unable to read or write; or

(c) is not sufficiently familiar with any language or languages used on the document to vote without assistance.

(2) The manner is—

(a) by the voter, with the assistance of a person authorised by the voter; or

(b) by a person authorised by the voter, in accordance with the voter’s instructions

[Emphasis added.]

182. Regulation 34(1)(c) envisages that the voting document could include languages other than English, but a voter may still be assisted by another person where they are not

familiar with any of the languages on the ballot document.

183. Regulation 34(2) provides that the person may either receive assistance or have some- body else vote for them on their instructions. Regulation 74 provides that no person

may speak to, or communicate in any way with, any voter in a polling booth, either before or af- ter the voter has voted, but is subject to reg 34. Accordingly, in practical terms these provisions are similar to those in the Electoral Act which also allow for a person to be assisted to vote

if they have little or no English, and similar issues around the potential for voter fraud arise. Section 127(b) of the Local Electoral Act provides that it is an offence for a person “by abduc- tion, duress, or any fraudulent device or means” to impede or prevent the free exercise of the vote of any elector, or to compel, induce, or prevail upon any elector either to vote or to refrain from voting. Section 129 provides it is an offence “to interfere with or attempt to interfere with a voter when marking or recording his or her vote,” or to “attempt to obtain” information about how the voter has voted or communicate this information to another person.

184. Unlike in general elections, there is no provision for interpreters in the Local Electoral Act or Regulations.
     

Recommendation

185. The Local Electoral Act should be amended to make provision for the use of interpreters.
     

Special Voting

186. The Local Electoral Regulations also address the requirements for special voting.

Regulation 38 requires that every voter must make a special voting declaration before voting. Special votes accompanied by declarations that do not meet the requirements of reg 38 must be disallowed. Regulation 38(4) requires that a declaration must state:

a. The local government area of which the special voter is an elector or qualified to be an

elector; and

b. Whether or not the special voter is enrolled as a parliamentary elector; and

100. The full name, occupation, residential address, and postal address of the special voter; and

d. That the special voter has not already voted at the election or poll; and

e. Why the special voter is qualified to vote as a special voter under s 21 of the Act.

187. The Regulations do not prescribe a form for the declaration, although most local authorities provide a form which can be filled out. The issue is whether a person with

limited or no English would understand the requirements of the declaration such that they could cast a valid vote.

188. Section 22(2) of the Local Electoral Act provides that

(2) Subject to this Act and to any regulations made under this Act, the provisions of this Act and any regulations made under this Act, as far as applicable and with the necessary modifications, apply with respect to voting by special voters and to their votes.

Recommendation

189. Regulation 34 of the Local Electoral Regulations which specifically deals with how a voting document or special voting document may be marked by voters

with specified difficulties in voting, including “is not sufficiently familiar with any lan- guage or languages used on the document to vote without assistance,” appears too nar- row to extend to assisting a special voter with little or no English to make a special voting declaration. Thus, such a provision needs to be added by law reform.

Summary of Recommendations on Local Electoral Act and Regulations

190. The Local Electoral Act 2001 should be amended so that the notice given about enrolment as a ratepayer elector, and about the election or poll can be made

available in languages other than English. The Local Electoral Act should also be amend- ed to make provision for the use of interpreters.

191. Regulation 34 of the Local Electoral Regulations, which specifically deals with how a voting document or special voting document may be marked by voters

with specified difficulties in voting, including “is not sufficiently familiar with any lan- guage or languages used on the document to vote without assistance,” appears too narrow to extend to assistance in providing any necessary identifying details before the voter is issued with voting documents. It also appears too narrow to extend to assisting a special voter with little or no English to make a special voting declaration. Thus, such provisions needs to be added by law reform.

Voting in Referenda

192. In New Zealand referenda can be held by the government pursuant to empowering legislation, following a successful petition for a citizen-initiated referendum under the

Citizens Initiated Referenda Act 1993, or under a government-initiated indicative referendum under the Referenda (Postal Voting) Act 2000.

193. The Citizens Initiated Referenda Act 1993 sets out the requirements for citizen-initi- ated referenda. The provisions in the Referenda (Postal Voting) Act 2000 also apply

to citizen-initiated referenda held by post. The provisions in the Electoral Act 1993 apply to citizen-initiated referenda held at a general election or poll. Referenda held pursuant to em- powering legislation are administered according to that legislation.

194. A range of different approaches are taken in the above Acts, and they are not consist- ent with each other, or with the Electoral or Local Electoral Acts. When referenda are

authorised by Parliament, those referenda should have at least the same accommodations and

safeguards for those with little or no English as are provided for by the Electoral Act and Local Electoral Act. There is no clear justification for varying accommodations and standards across different forms of democratic engagement.

195. Voting in referenda is equally as important as voting in elections for central and local government, particularly given the arguable constitutional convention that significant

constitutional change is authorised by referendum. In New Zealand matters are not likely to go to referenda unless they are important. Even a citizen-initiated referendum requires 10 per cent of eligible voters to want it before it is held.

Government-Initiated Indicative Referenda

196. The government may initiate an indicative postal referendum under the Referenda (Postal Voting) Act 2000. If so, s 6(1) of the Referenda (Postal Voting) Act provides that

the wording of each proposal to be put to electors, and the responses for which they may vote, must be specified by the Governor-General by Order in Council.

197. No such Order has ever been made, but the Act is silent on whether the wording would or could be made available in languages other than English.

Citizen-Initiated Indicative Referenda

198. The Citizens Initiated Referenda Act 1993 enables citizens to trigger an indicative referendum if they are able to secure the signatures of 10 per cent of eligible electors

within a 12-month time period. Section 24 of the Act provides that other than specified provi- sions, the provisions of the Electoral Act and its regulations apply to any referenda not held by postal voting, whether or not it takes place on polling day.

Form of Petition

199. The process for presenting an indicative referendum petition to Parliament is as fol- lows. First, s 6 of the Act requires that a draft of the proposed indicative referendum

petition be submitted to the Clerk of the House of Representatives. Assuming that the pro- posal satisfies the form requirements of s 6, s 7 then requires the Clerk to publish notice of the receipt of that proposal in the Gazette, and in such newspapers as he or she considers nec- essary. The notice must invite comments on the wording of the proposed referendum question.

200. Section 11 requires the Clerk to determine the precise wording of the referendum ques- tion. Section 10 provides that the wording of the question:

a. Must convey clearly the purpose and effect of the indicative referendum; and

b. Must ensure that only one of two answers may be given to the question; and

100. Must take into account the original proposal, any comments on the wording received, and any other consultation carried out by the Clerk.

201. The Clerk must then approve a petition form, and give notice that he or she has done so. The approval of the petition form is important because s 16(1) of the Act requires

that signatures that are not on the approved form must be discarded.

202. The Act is silent as to whether a petition form can be approved in a language other than English or Māori. However, Standing Order 363 of the House of Representatives

requires that all petitions to Parliament be in English or Māori, so it is unlikely that a petition in a language other than English or Māori would be approved by the Clerk.

203. The Act is also silent as to whether the Clerk may approve a form which is partially in English or Māori but which includes translations into other languages. In practice,

approved petition forms have been in English, which may present a limit on the ability of those with little or no English to understand and participate in this process.

Participating in the Petition Process

204. Once the form of a petition has been approved, the promoter of the petition has 12 months to collect signatures from 10 per cent of eligible voters, which can be extended

by a further two months.

205. Section 15 of the Citizens Initiated Referenda Act sets out the requirements for each signature:

15 Requirements in relation to indicative referendum petition

(1) Every signatory to an indicative referendum petition—

(a) shall, against his or her signature, state—

(i) his or her full name; and

(ii) his or her residential address; and

(b) may, against his or her signature, state his or her date of birth.

2. Failure by a signatory to comply with any of the requirements of subsection (1) shall not of itself prevent the signature of that signatory from being used for the purposes of determining the number of signatures that must be checked in accordance with section 19.
206. A number of concerns arise from this process. The first is that electors with little or no English are likely to be wary of signing a petition that they do not understand. Balanced

against that, there are no protections in the Act to prevent people with English language limita- tions being tricked or coerced into signing a petition they do not understand.

207. Although it is an offence to bribe the promoter of a petition, or to attempt to compel a promoter to withdraw an indicative referendum petition, the same conduct in respect

of a voter choosing whether or not to sign appears not to be illegal.43 Nor is there any apparent requirement that a person signing a petition actually understand what they are doing.

Recommendation

208. The Citizens Initiated Referenda Act should be amended to prohibit promoters of petitions from deceiving voters into signing petitions that they do not under-

stand if they have limited or no English. Using s 218 of the Electoral Act as a precedent, it should be a specific offence, by abduction, duress, or any fraudulent device or means, to compel, induce, or prevail upon any elector to sign or not sign a petition, similar to provi- sions prohibiting undue influence in other electoral legislation.

Voting Qualifications

209. As with parliamentary elections and local government elections, there is no statutory requirement that a person must speak or understand English, Māori or New Zealand

Sign Language to vote in a referendum. The right to vote in referenda is tied to the right to vote in general elections.

210. In terms of referenda which are held by post, s 29 of the Referenda (Postal Voting) Act 2000 provides:

Every elector is qualified to vote at the referendum.

211. Similarly, s 60 of the Electoral Act (which sets out who may vote) applies to citizen-initi- ated referenda not held by post.

Voting Papers

212. The Returning Officer dispatches voting documents by post (or by fax or dictation in cer- tain circumstances) in referenda governed by the Referenda (Postal Voting) Act 2000.
213. The form of the voting paper is prescribed by s 7(1) of the Referenda (Postal Voting) Act for government-initiated indicative postal referenda:

7 Form of voting paper

(1) The voting paper used in a government initiated referendum—

(a) must have a heading that—

(i) begins with the words “REFERENDUM ON”; and

(ii) states the subject of the referendum; and

(b) must have an explanatory note that—

(i) has the heading “Explanation”; and

(ii) explains—

(A) the purpose of the voting paper; and

(B) the effect of the referendum; and

(iii) specifies—

(A) the referendum material, if any, accompanying the voting paper that summarises the subject of the referendum; and

(B) the title and date of government publications, if any, intended to provide electors with a full description of the subject of the referendum; and

(c) must also—

(i) set out the proposal and responses worded as specified in an Order in Council made under section 6(1); and

(ii) set out instructions on how to vote and how to return the voting paper; and

(iii) provide a space for electors to indicate the response for which they wish to vote; and

(iv) set out the following numbers:

(A) the elector’s roll identifier number, which must be unique to that elector:

(B) the elector’s electorate code:

(C) the voting paper’s number, which must be a number in a consecutive sequence that starts at 1; and

(v) be in the prescribed form.

214. Section 7(2) of the Referenda (Postal Voting) Act provides that the voting paper used in a citizen-initiated referendum must be in the form prescribed in s 28 of the Citizens

Initiated Referenda Act 1993:

28 Voting paper

The voting paper shall—

(a) contain the precise question to be put to voters in the indicative referendum; and

(b) provide, opposite the precise question to be put to voters, a space for the answers:

(c) provide a circle to the right of each answer:

(d) have a counterfoil in form 13 of Schedule 2 of the Electoral Act 1993:

(e) have printed on the top right-hand corner and in the space provided in the counterfoil a number (called a consecutive number) beginning with the number 1 in the case of the first voting paper printed and being consecutive on all succeeding voting papers printed, so that no 2 voting papers for the district bear the same number.

215. The Act is silent as to what languages the voting papers must or may be produced in.

216. However, the form for voting papers issued under the Citizens Initiated Referenda Act appears to have been prescribed by the Citizens Initiated Referenda Regulations 1995

as follows:

[Consecutive number] [Name of electoral district]

Directions

(Read carefully before voting)

1 Vote by putting a tick in the circle immediately after the answer you choose.

2. After voting, fold the voting paper so that its contents cannot be seen and place it in the ballot box.

3 If you spoil this voting paper, return it to the officer who issued it and apply for another.

4 You must not take this voting paper out of the polling booth.

217. Accordingly, it does not appear possible for an electoral officer to issue voting papers in a language other than English in the context of a referendum under the Citizens

Initiated Referenda Act.

Recommendation

218. The Referenda Regulations should be amended to at least make it legally possible to provide a ballot paper in Te Reo Māori, and consideration should be

given to whether ballot papers should be available in other languages as New Zealand’s demographic makeup shifts.

Voting Information

219. Section 36(2)(b) of the Referenda (Postal Voting) Act permits, but does not require, the Returning Officer to include “information, in any language or languages, on how to vote

and how to return the voting paper”.

Recommendation

220. The Referenda (Postal Voting) Act should be amended to require the Return- ing Officer to exercise his or her discretion under s 36(2)(b) taking account of

whether information in other languages is needed to ensure that all electors who are qualified to vote have a reasonable and equal opportunity to vote, using s 75(3)(a) of the Local Electoral Act as a precedent.

Voting in a Referendum not held by Post

Interpreters

221. The provisions on interpreters set out in the Electoral Act 1993 and the Electoral Reg- ulations 1996 apply in a referendum not held by post. The same potential limitations

apply, with the additional complication that what must be translated is not simply how to vote for a particular person or party, but the referendum question as a whole.

Recommendation

222. As with parliamentary elections held under the Electoral Act, the provisions governing access to interpreters should be streamlined so that voters in refer-

enda who consider that they require interpretation services to vote are able to access an

interpreter if they consider it necessary and that one is available.

Issuing Ballot Papers

223. If the referendum is not held by post, ss 166 and 167 of the Electoral Act require an elector, at the request of a scrutineer, to verbally confirm their name before they are

issued with ballot papers.

224. As in general elections, this could present difficulties for voters with limited or no English.
     

Recommendation

225. A person should be permitted in a referendum, to obtain assistance to answer questions from scrutineers confirming their name (from an interpreter or other-

wise), or be permitted to answer the question 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 a language other than English.

Assistance with Voting

226. As in general and local elections, voters who have difficulty with English can nominate a person to mark, or assist them with marking, their voting paper in referenda.

227. Section 38 of the Referenda (Postal Voting) Act provides:

38 Method of Voting

(1) The elector votes by marking the voting paper with a tick within the space provided for the response for which the elector wishes to vote.

(2) The voting paper may be marked in the manner described in subsection (3) if an elector—

(a) is visually impaired; or

(b) is unable to read or write for any reason; or

(c) is not sufficiently familiar with any language or languages used on the voting paper to vote without assistance.

(3) The manner is—

(a) by the elector, with the assistance of a person authorised by the elector; or

(b) by a person authorised by the elector, in accordance with the elector’s instructions.

228. Section 38 does not assume the language used on the voting paper will be English, instead referring to “language or languages”.
229. If the referendum is not held by post, s 170 of the Electoral Act, discussed above, ap- plies instead, as do the same potential issues in terms of electoral fraud.
     

Recommendation

230. As discussed above, although there are provisions in s 170 of the Electoral Act enabling 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 would still be value in requiring those assisting to make a declaration that they will follow the voter’s instructions, and maintain the secrecy of the vote.

Referenda held pursuant to Empowering Act

231. Since the advent of MMP, there have been three referenda held pursuant to their own empowering legislation, and two further scheduled to be held pursuant to the

New Zealand Flag Referendum Act 2015.

232. While legislation empowering a referendum is usually repealed shortly after the referendum has been held (and any binding consequences have been resolved), the

evolving constitutional convention that major constitutional change should be authorised by a referendum means that the provisions of such legislation should also be scrutinised to

determine if there are opportunities to make better provision for the participation of the ethnic minorities and migrants in future referenda.

233. The purpose of including these provisions in the paper is to show that there has been little change in the accommodations made for those with little or no English since

1993. Previous legislation empowering referenda has drawn very heavily on the Electoral Act 1993, which emphasises the importance of making sure that the Electoral Act is fit for purpose. New Zealand in 2015 is now demographically very different. New laws need to include appro- priate provisions for the growing number of voters who may have difficulties with written and/or spoken English.

New Zealand Flag Referendums Act 2015

234. The New Zealand Flag Referendums Act 2015 requires that referenda be held about the New Zealand flag. The first referendum will require voters to choose from one of four

alternatives to the current New Zealand flag, and the second referendum will require voters to choose between the winner of the first referendum and the current flag. The referenda will be held by post.

235. The provisions of the 2015 Act are very similar to those used for postal voting in other referenda. This means that the accommodations that have been made for those voters

with little or no English are limited, and depend essentially on the discretion of the Returning Officer and a panel appointed to produce referendum material. It also means that the observa- tions and recommendations that are made earlier in this paper as to improvements in respect of postal voting apply equally to the 2015 Act, specifically:

1. The Schedules to the Act should be amended to make it legally possible to provide a ballot paper in Te Reo Māori and other languages;
2. Section 25(2)(b) of the 2015 Act should be amended to require the Returning Officer to exercise his or her discretion taking account of whether information in other languages is needed to ensure that all electors who are qualified to vote have a reasonable and equal opportunity to vote, using s 75(3)(a) of the Local Electoral Act as a precedent.

236. Section 27 of the 2015 Act already provides for those with little or no English to be assisted in marking their ballot paper or to have it marked by another person they

authorise, and s 58 makes it an offence for any person assisting to divulge how the person they were assisting voted to others, or not to mark it as the voter wanted them to.

237. Section 25(2) of the 2015 Act provides that where the Returning Officer faxes or mails a referendum voting paper, the Officer must include with it “a copy of the referendum

material, if any”44 and “information, in any language or languages, on how to vote and how to return the voting paper”. The 2015 Act imposes no requirements and provides no guidance as to what languages the “referendum material” or voting information should be provided in.

238. However, from the beginning of its process, the Flag Consideration Panel has wanted its activities to be open and accessible to all New Zealanders. It sought advice from a

number of sources on how this should best be done, and subsequently took all reasonable and practical steps to act on that advice, including, for example, mirroring the Electoral Commis- sion’s practice of providing key information in 25 languages other than English. The Panel’s work has been complimented by work from other agencies, including the Electoral Commis- sion.45

239. During the consideration of the New Zealand Flag Referendum Bill by Parliament’s Justice and Electoral Committee, the Ministry of Justice’s Departmental Report set out

some aspects of the information campaign that is to be held.

240. The enrolment campaign will involve the distribution of an English language brochure reminding electors to enrol and providing information on how to vote to homes. Com-

munity, advocacy, public sector, education and sector interest organisations will receive the brochure in English and Māori, and versions in multiple languages will be available online.

241. Enrolled voters will receive brochures detailing the voting process in English, Māori and “multiple languages”, with additional information explaining the flag options in lan-

guages other than English and Māori available online.

242. The Electoral Commission will provide information on voting and enrolment in multi- ple languages online. The information brochure to be included in the voting pack will

be available online in 25 languages. Official descriptions of the flag designs are also available online in 25 languages.46

243. The websites associated with the flag project have been designed so that they can be read by translation software, and the information brochures and community resources

are made available in Te Reo Maori, Samoan and Mandarin, as well as English. Resources for schools are available online in English and Te Reo Maori.

244. Section 27 of the 2015 Act prescribes the method of voting and essentially reflects s 38 of the Referenda (Postal Voting) Act described above.
     

245. Finally, schs 1 and 2 to the 2015 Act prescribe voting papers for the flag referendum. As with other New Zealand electoral legislation, they prescribe papers in English:
     

Electoral Referendum Act 1993

246. The Electoral Referendum Act 1993 (now repealed) empowered a binding referendum on proposals for electoral reform. Section 3 of the 1993 Act provided that the 1956 Act

applied “subject to the provisions of this Act and of any regulations made under this Act”.

As noted above, the 1956 Act was the first to make allowance for assisted voting for those who did not speak English.

247. However, s 2(2) of the 1993 Act required that the proposals about the electoral system that were the subject of the binding referendum be submitted in the voting paper in

form 1 of the Schedule. Schedule 1 set out a voting paper exclusively in English:

248. There was no special provision made for voters with limited English other than those provisions made in the Electoral Act 1956.

Electoral Referendum Act 2010

249. The Electoral Referendum Act 2010 (now repealed) made provision for an indicative referendum to be held in conjunction with the next general election on the preferred

system of voting for election to the House of Representatives in New Zealand. Because the referendum was held at the same time as the 2011 General Election, s 9 of the 2010 Act provid- ed the Electoral Act applied to the conduct of the referendum, subject to the provisions of the 2010 Act.

250. The form of the ballot paper was prescribed as being exclusively in English by sch 1 to the Act:
     
251. There were no other specific provisions in the 2010 Act dealing with language issues, and so the various provisions discussed above in the Electoral Act 1993 applied.

Compulsory Retirement Savings Scheme Referendum Act 1997

252. The Compulsory Retirement Savings Scheme Referendum Act 1997 (now repealed) provided for the holding of a referendum of electors on a proposal for a compulsory

retirement savings scheme. The referendum was held by post, and all eligible electors in terms of the Electoral Act were entitled to vote.

253. Section 5 of the 1997 Act prescribed the question to be put to electors as:

“Do you support the proposed compulsory retirement savings scheme?”

254. There was no indication that the question could be put to electors in any language oth- er than English. Similarly, s 6, which prescribed the content of the voting paper, gave

no indication that the paper could be presented in any language other than English:

6 Form of voting paper

(1) The voting paper must have the following heading:

“Referendum on the Compulsory Retirement Savings Scheme”.

(2) The voting paper must have the following explanatory note: “Explanation

“Use this voting paper to have your say on the proposed compulsory retirement savings scheme. A summary of the scheme is with this voting paper. A full description is in the [title of Government publication describing the proposed compulsory retirement savings scheme] dated [date]. The Government will introduce legislation to set up the scheme if more people voting at the referendum vote ‘yes’ than vote ‘no’.”.

(3) The voting paper must—

(a) Set out the question; and

(b) Set out the following answers:

“YES I support the proposed compulsory retirement savings scheme

“NO I do not support the proposed compulsory retirement savings scheme”; and

(c) Set out instructions on how to vote and how to return the voting paper; and

(d) Provide a space for the voter to indicate the answer for which he or she wishes to vote; and

(e) Set out the following numbers:

(i) The elector’s roll identifier number and the elector’s electorate code; and

(ii) The voting paper’s number—

in accordance with the following rules:

(ii). An elector’s roll identifier number must be unique to that elector; and

(iv) A voting paper’s number must be unique to that voting paper; and

(v) Voting paper numbers must be in a consecutive sequence that starts at 1; and

(f) Be in the prescribed form.

4. When printed, the voting paper must set out, in place of the italicised words and square brackets in subsection (2), the title and date of the Government publication describing the proposed compulsory retirement savings scheme.
   
255. The form of the paper was prescribed by reg 2(2) of the Compulsory Retirement Sav- ings Scheme Referendum Regulations 1997 as follows:

256. Section 34(2) of the 1997 Act permitted, but did not require, the Returning Officer to include “information, in any language or languages, on how to vote and how to return

the voting paper”.

257. Similarly, s 36(2) of the Act permitted a voter with English language issues to vote with assistance, notwithstanding that the ballot was a postal one:

36 Method of voting

(1) The voter votes by marking the voting paper with a tick within the space provided for the answer for which the voter wishes to vote.

(2) If any voter—

(a) Is visually impaired; or

(b) Is, for any reason, unable to read or write; or

(c) Is not sufficiently familiar with any language or languages used on the voting paper to vote without assistance,—

the voting paper may be marked in the manner described in subsection (3).

(3) The manner is—

(a) By the voter, with the assistance of a person authorised by the voter; or

(b) By a person authorised by the voter, in accordance with the voter’s instructions.

(4) A voter to whom the Returning Officer has dictated the relevant parts of the voting paper under section 33(4)(b) may, in accordance with any regulations made under this Act, dictate his or her vote to the Returning Officer. The Returning Officer must mark the voting paper in accordance with the voter’s instructions.

Summary of Recommendations

258. The Citizens Initiated Referenda Act should be amended to prohibit promoters of petitions from deceiving voters into signing petitions that they do not under-

stand if they have limited or no English. Using s 218 of the Electoral Act as a precedent, it should be a specific offence to, by abduction, duress, or any fraudulent device or means, compel, induce, or prevail upon any elector to sign or not sign a petition, similar to provi- sions prohibiting undue influence in other electoral legislation.

259. As with parliamentary elections held under the Electoral Act, the provisions governing access to interpreters should be streamlined so that voters in refer-

enda who consider that they require interpretation services to vote are able to access an interpreter if they consider it necessary and one is available.

260. The Referenda Regulations should be amended to at least make it legally possible to provide a ballot paper in Te Reo Māori, and consideration should be

given to whether ballot papers should be available in other languages as New Zealand’s demographic makeup shifts.

261. The Referenda (Postal Voting) Act should be amended to require the Return- ing Officer to exercise his or her discretion under s 36(2)(b) taking account of

whether information in other languages is needed to ensure that all electors who are qualified to vote have a reasonable and equal opportunity to vote using, s 75(3)(a) of the Local Electoral Act as a precedent.

262. A person should be permitted in a referendum, to obtain assistance to answer questions from scrutineers confirming their name (from an interpreter or other-

wise), or be permitted to answer the question 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 a language other than English.

263. The Schedules to the New Zealand Flag Referendums Act 2015 should be amended to make it legally possible to provide a ballot paper in Te Reo Māori and

other languages.

264. Section 25(2)(b) of the 2015 Act should also be amended to require the Return- ing Officer to exercise his or her discretion taking account of whether informa-

tion in other languages is needed to ensure that all electors who are qualified to vote have a reasonable and equal opportunity to vote, using s 75(3)(a) of the Local Electoral Act as a precedent.

Elections and the New Zealand Bill of Rights Act 1990

265. The accommodations made for eligible voters with little or no English need to be considered in the context of the rights and freedoms affirmed under the NZBORA. The

right to vote affirmed by s 12 of the NZBORA is of central importance because it affirms the right for citizens to vote. However, in the context of minority languages and elections, the right to freedom from discrimination affirmed by s 19, and the rights of minorities in respect of their lan- guage, religion, and culture affirmed by s 20 are also relevant, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under s 5 of the NZBORA.

266. The question is whether the combined effect of the rights affirmed by s 12, which is a fundamental right, together with ss 19 and 20 read together, subject to reasonable

limits in terms of s 5 of the NZBORA, requires the government to do more to facilitate voting by eligible voters who speak little or no English, notwithstanding that the rights affirmed by ss 19 and 20 are negative rights – “freedoms from” rather than “rights to”.47

Section 12: The Right to Vote in Elections

267. Section 12 of the NZBORA affirms that every New Zealand citizen who is of or over the age of 18 years:

(a) Has the right to vote in genuine periodic elections of members of the House of Represent- atives, which elections shall be by equal suffrage and by secret ballot, and is qualified for membership of the House of Representatives; and

(b) Is qualified for election to Parliament.

268. New Zealand already extends the franchise further than s 12 requires, because permanent residents are able to vote. Section 12 applies only to citizens, and not to

permanent residents or any other class of person who may be able to vote at some point in the future. Almost all new migrants will spend some time as permanent residents before becoming citizens, so this accommodation has particular significance for those with limited or no English.

269. The right to vote in free and fair elections is a fundamental part of the democratic process. In Taylor v Attorney-General,48 the High Court declared that s 80(1)(d) of the

Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) was inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the NZBORA, and cannot be justified under s 5 of that Act.

270. As part of that case, the High Court made a number of observations about the impor- tance of the right affirmed under s 12, noting:49

A democracy is built around the idea that a state is governed by elected members of a legislative body. For that reason, the right to vote is arguably the most important civic right in a free and dem- ocratic society. Affirmation of the importance of that right is apparent from the terms in which both s 12(a) of the Bill of Rights and art 25(b) of the International Covenant on Civil and Political Rights (the International Covenant) are expressed.

271. The Court went on to say, in explaining why a declaration ought to be granted in the particular circumstances of Taylor:50

The question whether a citizen’s right to vote has been removed in a manner inconsistent with the Bill of Rights is a point of such constitutional importance that it justifies the Court exercising a discretion to grant relief in the form of a declaration.

272. The Court further stated:51

The inconsistency arises in the context of the most fundamental aspect of a democracy; namely, the right of all citizens to elect those who will govern on their behalf.

273. The fundamental right affirmed by s 12 is potentially engaged in a languages context where New Zealand’s electoral law may prevent citizens who are otherwise entitled to

vote from exercising their right to vote because they have limited or no English. Examples of how provisions in electoral laws might do this include:

1. Requiring particular electoral documents to be prepared or presented in English, such as prescribed forms;

b. Making information about how to vote available only in English; or

100. Imposing administrative requirements that voters with little or no English cannot meet, such as requiring voters to answer questions in English to confirm that they are eligible to vote.

274. Whether a particular aspect of New Zealand’s electoral law in fact prevents or may pre- vent a person from voting because they have limited or no English may depend on what

other accommodations are made in the law to help such a person cast a vote. The absence of such accommodations may bring an otherwise innocuous provision of the law into conflict with the right to vote, if its effect is to prevent citizens from exercising their right to vote because they have limited or no English. The question, then, is whether such a limitation is reasonable, prescribed by law, and demonstrably justified in a free and democratic society under s 5 of the NZBORA.

275. In R v Hansen,52 a majority of the Supreme Court set out the approach to determining whether a limitation on a right affirmed under the NZBORA can be justified under s 5:

[104] This approach can be said to raise the following issues:

(a) does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?

(i) is the limiting measure rationally connected with its purpose?

(ii) does the limiting measure impair the right or freedom no more than is reasonably neces- sary for sufficient achievement of its purpose?

(iii) is the limit in due proportion to the importance of the objective?

276. In an electoral law context, the purpose of “limiting measures” will essentially be to ensure that elections are held fairly, efficiently and consistently across New Zealand

by, for example, prescribing a ballot paper which all voters must use. Whether the particular measure has a rational connection with that objective and imposes a reasonable and propor- tionate limit on the right to vote will depend on the application of the measure to the particular facts at the time of an election.

277. Where the cost or difficulty of making an accommodation for voters who do not speak English is small, and the number of voters affected is large, it may be harder to justify

not making such an accommodation in terms of s 5. This is because it will be more difficult to show that the infringement on the very important right to vote impairs the right or freedom

no more than is reasonably necessary for sufficient achievement of its purpose. On the other hand, where the number of voters affected is very small, and the cost or difficulty of the ac- commodation is very large, the limitation may be demonstrably justified.

278. The reasonableness or otherwise of the failure to make accommodations may also shift over time as New Zealand’s demographic makeup changes. For example, as the

number of citizens who do not speak English but speak other languages increases, the reason- ableness of failing to make accommodations for minority linguistic groups is likely to diminish, particularly given ss 19 and 20 of the NZBORA.

279. Canadian courts have considered similar issues in the context of the right to vote guaranteed by the Canadian Charter of Rights and Freedoms. For example, in Hoogbru-

in v Attorney-General of British Columbia,53 the British Columbian Court of Appeal noted in the context of British Columbia’s failure to make provision for absentee voting:

[14] Mr. Welsh, for the appellants, at first asked that we “direct” the legislature to enact provisions for absentee voting. Under questioning by the court, he amended his submission asking only for

a declaration. In our view it would be “appropriate and just in the circumstances” to declare (see Que. Assn. of Protestant Sch. Bd. c. P.G. Que., [1982] C.S. 673, 140 D.L.R. (3d) 33 (sub nom. Que. Assn. of Protestant Sch. Bd. v. A.G. Que.), affirmed [1983] C.A. 77, 1 D.L.R. (4th) 573 (Que.), as well as Maltby, supra) that in the court’s view the right to vote as guaranteed by s. 3 of the Charter is denied to British Columbia registered voters where the sole reason they are unable to exercise their right to vote is that no procedural mechanism exists which would reasonably enable them to do so. [Emphasis added.]

280. In Hoogbruin, the Court concluded that the British Columbian government’s lack of provision to enable absentee voting was itself an interference with the right to vote.
281. However, Canadian courts have not imposed a standard which requires sufficient ac- commodations so that every voter may vote. The Court of Appeal for British Columbia in

Henry v Canada (Attorney-General), in the context of whether voter identification laws unjustifi- ably infringed the right to vote, upheld54 the Supreme Court of British Columbia’s finding that:

The [appellants] submit that precluding even one voter from casting a ballot would be a signifi- cant deleterious effect. Indeed, that would be a deleterious effect, as would be the creation of inconvenience that discourages voters from coming to the polls. In an ideal world, no elector would ever be inconvenienced or precluded from voting by any aspect of the electoral system.

However, that is not the constitutional requirement. Just as it cannot be constitutionally required for an individual polling station to be set up for each individual voter, a system of voter identifica- tion need not be such that not one person is ever inconvenienced or precluded from voting by its requirements. The state has a positive obligation to create an electoral system that is sensitive to the needs of all electors and that maximizes access in every way possible, but a standard of absolutely perfect access cannot be imposed. [Emphasis added.]

282. Some limitations on the right to vote are inevitable – for example, in Taylor, the High Court noted in obiter that disqualifying prisoners convicted of serious offences might

well be a justified limitation on the right to vote.55 However, any accommodations that are made to enable citizens to cast votes must themselves be consistent with the right to “vote in genu- ine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot”.

283. More significantly, s 12 applies only to elections to Parliament, and not to elections held under the Local Electoral Act or the various referenda legislation. However, s 12 and

the accommodations it may require in respect of language represent best practice and should be applied in the context of the Local Electoral Act or the various referenda legislation, even if there is no legal obligation to do so.

Section 19: Freedom from Discrimination

284. The right to freedom from discrimination affirmed by s 19 of the NZBORA is also en- gaged by New Zealand’s electoral law. Section 19 provides:

19 Freedom from discrimination

(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

285. Importantly, unlike s 12, s 19 applies to “everyone”, and its application is not limited to parliamentary elections. Accordingly, s 19 also applies in respect of permanent resi-

dents, and in respect of elections held under the Local Electoral Act and referenda held under the various referenda legislation.

286. Language is not specified as one of the prohibited grounds of discrimination in the Hu- man Rights Act 1993, but there are a range of other grounds of discrimination which are engaged by discrimination on the basis of language, such as colour, race, and ethnic or nation-

al origins, and the concept of indirect discrimination contained in the Human Rights Act.56 For example, if an electoral official discriminated against Asian and Pacific voters by deliberately asking them complex questions to establish their identity in a way they could not comprehend that would be a breach of the freedom affirmed by s 19.

287. Indirect discrimination may also arise in an electoral law context where eligible voters suffer a disadvantage in terms of their ability to vote because of provisions in elec-

toral legislation that have a disproportionate impact on those with little or no English, such as requirements that ballot papers or other voter information documents be provided exclusively in English.

288. Whether a particular measure in fact disadvantages voters with little or no English such that s 19 is engaged should be considered in light of any accommodations made for

such voters as part of that measure. A measure will be less likely to be discriminatory if there is no actual resulting disadvantage to voters with little or no English. So, for example, it is likely to be permissible for the voting system to be administered primarily in English as long as there is reasonable assistance for those voters of different race and ethnicity with little or no English to vote.

289. It is also relevant that s 19(2) provides that measures taken in good faith for the pur- pose of “assisting or advancing persons or groups of persons disadvantaged because

of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993” does not constitute discrimination. This provision may therefore permit, in principle, “affirmative action” for voters with little or no English, provided it can be demonstrated that such measures have been adopted in good faith and are to assist persons who have been disadvantaged by unlaw- ful discrimination.

290. As with s 12, the right to freedom from discrimination affirmed by s 19 is not absolute and may be subject to reasonable limits in terms of s 5 of the NZBORA. This means

that measures in electoral laws that disadvantage eligible voters because they speak little or no English may nevertheless be justified if it can be shown that the discriminatory provision serves an important purpose (such as ensuring that elections can be held efficiently and fairly) and that the measures are rationally connected with that purpose, infringe on the right to free- dom from discrimination no more than is reasonably necessary, and are proportionate.

291. Provisions in New Zealand’s electoral law should be reviewed to ensure they do not, di- rectly 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 in a way that cannot be justified in terms of s 5 of the NZBORA. The areas where there may be breaches of the NZBORA are reflected in the recommendations for change made in this paper

Section 20: Rights of Minorities

292. Section 20 of the NZBORA provides that a person belonging to an “ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with

other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority”.

293. Like s 19, s 20’s application is not limited to New Zealand citizens, or parliamentary elections. Accordingly, s 20 also applies in respect of permanent residents, and in

respect of elections held under the Local Electoral Act and referenda held under the various referenda legislation.

294. Section 20 is expressed in negative terms, which suggests that the only obligation on the state is to refrain from interfering in particular minority activities: the state has no

positive duty to foster a minority’s enjoyment of its culture, religion or language. This was the conclusion of the Court of Appeal in Mendelssohn v Attorney-General in rejecting the plaintiff’s contention that the government was obliged to protect his religious beliefs from criticism.57 The Court considered that, in contrast to other rights in the NZBORA (such as the rights of persons charged with criminal offences), s 20 affirmed a negative freedom and therefore did not impose a positive duty on the state to act.58

295. The purpose of s 20 is to prevent “oppressive government action which would pursue a policy of cultural conformity by removing the rights of minorities to enjoy those things

which go to the heart of their very identity – their language, culture and their religion”.59 The UNHRC has further observed that art 27 of the International Covenant on Civil and Political Rights (ICCPR), on which s 20 is based, is “directed towards ensuring the survival and contin- ued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole”.60

296. The word “minority” is not defined in the NZBORA or in the ICCPR. However, the UNHRC has observed that “minority” tends to relate to a group “numerically inferior” to the rest

of the national population.61

297. In terms of identifying an “ethnic minority” for the purposes of s 20, the test adopted by the Court of Appeal in King-Ansell v Police is likely to be useful.62 First, members of

the group must hold a subjective belief that they are alike and share historical bonds. Second, other people must recognise the group as sufficiently distinct in the community. The use of this mixed objective/subjective test has been approved by the House of Lords.63

298. Although the meanings of “religious minority” and “linguistic minority” have not been subject to such consideration by the courts, the Ministry of Justice’s 2004 Guidelines

on the New Zealand Bill of Rights Act 1990 suggest that these terms will be given a broad and

liberal construction. The Guidelines suggest groups that use a language other than English are likely to qualify as linguistic minorities for the purposes of s 20.

299. The right affirmed in s 20 is not absolute and nor can it be used to circumvent other rights affirmed in the NZBORA.64 Accordingly, interference with the right is capable

of being justified in accordance with s 5 of the NZBORA. Section 20 is unlikely to be directly engaged by electoral legislation because the right only applies to the enjoyment of culture, practice of religion or use of language by a minority in community with other members of that minority. However, s 20 may be engaged if it can be demonstrated that the overall effect of failing to make accommodations for voters with little or no English is to discourage the use of a minority language both in public and at home as part of a de facto assimilation policy.

300. Many of the observations above in the discussion about ss 12 and 19 in respect of accommodations for eligible voters with limited or no English also apply in respect of s

20. Where the overall effect of electoral law creates no tension between members of a minority continuing to use its language in community with other members of that minority, and voting, s 20 is even less likely to be engaged.

301. As with ss 12 and 19, the right of minorities “in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the lan-

guage, of that minority” can also be subject to reasonable limits under s 5 of the NZBORA.

Conclusion

302. The significant number of accommodations already made in New Zealand’s elector- al laws to assist voters with little or no English makes it difficult to argue that the law

requires more. However, many of these accommodations are difficult to use and appear to be seldom used in practice.

303. Although New Zealand has implemented a range of accommodations across its elec- toral law, there is a lack of consistency across electoral legislation and even at different

stages of the voting process. The critical path for a voter with little or no English to cast their vote is essentially ad-hoc. There has been no systematic development of an end-to-end statutory process to help those with little or no English to vote. This may explain why the rate of voting among new migrants is so poor despite the large number of accommodations which have been made. This may also open New Zealand’s electoral laws to challenge for breach of the NZBORA

304. Certainly better implementation of the measures already in place is needed to ensure that the assistance to those with little or no English is real, and is not dependent on

discretions which are not exercised or which can be easily abused. Statutory amendments to make processes to help the superdiverse vote consistent and practically usable need to be considered. This will become more urgent as the superdiversity of New Zealand’s population grows.

Recommendation

305. 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 in a way that cannot be justified in terms of s 5 of the NZBORA.

Comparable Superdiverse Jurisdictions

306. This part of the paper considers comparable overseas superdiverse jurisdictions, and what steps, if any, they have taken to enable those who do not speak the majority

language or languages to vote.

307. The jurisdictions considered in this paper are:

a. The United Kingdom – London;

b. The Republic of Singapore;

c. The Republic of South Africa;

d. Canada – Toronto; and

e. Australia.

308. These jurisdictions have been chosen because they either are superdiverse (such as Singapore) or contain superdiverse cities (such as London, Johannesburg and Toronto).

In particular, this paper considers how those jurisdictions address the issues of:

a. Compulsory voting or enrolment;

b. Provision of election information, such as instructions on how to vote;

c. Voting documents and what languages they are prepared in; and

d. What assistance is given to voters to vote.

309. The comparative analysis shows that New Zealand is the only country of those con- sidered that allows permanent residents as well as citizens to vote. New Zealand also

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.

310. The main measure which is in place overseas which has not been adopted in

New Zealand is compulsory voting. The experience in both Australia and Singapore suggests that this may significantly improve the participation rate in elections. However, the consequence of failing to vote must not itself effectively serve to entrench a pattern

of non-voting, which is a potential risk in Singapore. The modest fines associated with the Australian model are more likely to encourage voting without the risk of long-term disenfran- chisement. We should also be studying countries where voter participation remains high despite being voluntary. For example, the Danish participation rate was 85.89 per cent in the 2015 parliamentary elections, however, the population is very homogenous.65

311. A number of jurisdictions also apply more “rules-based” approaches to measures to assist those with little or no English, although as with New Zealand the majority of

measures still depend on the discretion of relatively low-level electoral staff. At one extreme, the most rules-based approaches are those of Singapore and South Africa, where voting infor- mation and materials are in certain languages and there is little or no statutory assistance for those who do not speak prescribed languages.

312. Such measures should not be adopted in New Zealand. On the other hand, the ap- proach taken in Toronto to the provision of electoral information, where there is a bylaw

which creates a process for determining the languages in which electoral information should be made available, is a model which should be considered for adoption in New Zealand.

United Kingdom – London

313. Elections to the Greater London Authority are governed by the Greater London Authority Elections Rules 2007, made under the Representation of the People Act 1983. London

is highly superdiverse. As early as 2005 there were over 300 languages spoken in London, and more than 50 non-indigenous communities with populations over 10,000. The 2011 UK Census found that 37 per cent of Londoners were born outside of the United Kingdom.

314. London’s electoral system is very similar to that of New Zealand, although a person with limited or no English cannot get assistance to vote in the same way that they

could in New Zealand. London also requires voters to answer questions about their identity if they are asked, but does not require voters to respond in English which reduces the risk of disenfranchisement.

Is Voting Compulsory?

315. There is no obligation to vote in elections to the Greater London Authority. Turnout in the 2012 Authority elections was 40.9 per cent, a drop of 4.38 per cent since the 2008

election.

Is Election Information Available in Languages other than the Majority Languages?

316. Provision is made for the distribution of election information in languages other than English, but, like New Zealand, there is no obligation on the constituency Returning

Officers to in fact issue information in languages other than English.

317. The programme team at the Greater London Authority responsible for the 2016 London elections has made key voting information available in 16 languages other than English:

Arabic, Bengali, Chinese – simple, Chinese – traditional, French, Gujarati, Hindi, Lithuanian, Polish, Portuguese, Punjabi, Somali, Spanish, Tamil, Urdu and Yoruba. These languages have been identified as the 16 key languages spoken in the capital.

318. Similarly, the handbook for staff at polling stations for elections held under the Rules published by the UK Electoral Commission advises that the Returning Officer may

provide “instructions and guidance in alternative languages or formats depending on require- ments within the community”. Whether the Returning Officer in fact does so is at his or her discretion.

319. The Rules provide, in respect of elections to the London Assembly and for the Mayor- alty of London, that constituency Returning Officers must “issue to those entitled to

vote by post such information as he thinks appropriate about how to obtain...translations into languages other than English of any directions to or guidance for voters sent with the ballot paper”.66 So, what information about obtaining translations is made available depends on what constituency Returning Officers consider to be appropriate.

320. The Rules also require that notices for the guidance of voters must be exhibited outside the polling station, inside the polling station and in the communal areas. The

content of these notices is prescribed by the Schedule 9 to the Rules, but in accordance with s 199B(2)(b) of the Representation of the People Act 1983, translations of these documents into languages other than English may also be made available by the constituency Returning Officer.67 What, if any, translations are made available appears to be at the discretion of the Returning Officer.

321. The Rules provide for questions to be put to voters to ascertain whether they are permitted to vote. However, unlike the New Zealand Electoral Act, answers are not

required in writing, and a ballot paper may only be withheld from somebody if he has not “an- swered each question satisfactorily”, which suggests that a person could answer this question other than in English.

What Languages are Voting Documents Made Available in?

322. The content of ballot papers and nomination documents is prescribed by sch 10 to the Rules. All ballot papers and nomination documents appear to be prescribed as being in

English.

What Assistance is given to Voters with Language Difficulties?

323. The Rules do not make any specific provision for persons with little or no English to receive assistance in casting their vote. The Rules provide for the presiding officer to

mark a person’s ballot paper in accordance with their directions where that voter is illiterate or incapacitated by blindness or other disability from voting. But, unlike New Zealand, there is no specific provision made for a person who speaks little or no English.

Recommendation

324. The London electoral model and how it deals with those with little or no Eng- lish is very similar to New Zealand’s electoral model, although New Zealand’s

approach appears to be more sophisticated in most respects.

Singapore

325. Singapore is a superdiverse city. In 2014, Singapore was 74 per cent Chinese, 13 per cent Malay and 9.1 per cent Indian. Languages spoken in Singapore include English,

Mandarin, Hokkien, Teochew, Cantonese, Malay, Tamil, and a range of other Chinese and Indian languages or dialects. Singapore is one of the cities being studied by the Max Planck Institute for the Study of Religious and Ethnic Diversity’s GlobaldiverCities project.68

326. Singapore makes limited provision for non-majority language speakers in its Parlia- mentary Elections Act and Presidential Elections Act. The approach taken is to make

arrangements for English, Chinese, Tamil and Malay speakers on the basis that most if not all Singaporeans who are entitled to vote will speak at least one of these languages.

327. The Constitution of Singapore also requires that a person be able to speak, read and write at least one of English, Tamil, Chinese or Malay to be eligible for election as a Member of

Parliament, although this is not a specific requirement for eligibility to be elected President.

Is Voting Compulsory?

328. Section 43(1) of the Parliamentary Elections Act provides that every elector must vote in Parliamentary elections, and s 26(1) of the Presidential Elections Act imposes the same

requirement in respect of Presidential elections. The 2011 Presidential elections had a turnout rate of 94.8 per cent and the 2011 parliamentary elections had a turnout rate of 93.18 per cent.

329. In the case of both Parliamentary and Presidential elections, a person who fails to vote has their name expunged from the register of electors, so that they cannot vote or

stand for office. A person can have their name restored to the register of voters on payment of a SG$50 fine, or on providing a “good and sufficient reason for not having recorded his vote”. Examples of acceptable reasons, according to the Singapore Elections Department, include working, studying or holidaying overseas, illness, and childbirth.

330. There is a risk that if striking people off the roll for failing to vote without a “good and sufficient reason” was adopted in New Zealand, it would create an underclass of

people who never voted, having been struck off the roll once, lacking a “good and sufficient reason for not having recorded his vote”, and being unwilling or unable to pay the fine to be reinstated.

Is Election Information Available in Languages other than the Majority Languages?

331. Voting information in Singapore published by the Singapore Elections Department is published in English, Malay, Chinese and Tamil.
332. Section 37 of the Parliamentary Elections Act and s 20(1) of the Presidential Elections Act require that outside each polling station, a list of candidates must be posted show-

ing the name of each candidate in English, Malay, Chinese and Tamil. The candidates’ names must be arranged alphabetically according to their English names (or in groups if the election is for a group representation constituency).

333. Section 42(7) of the Parliamentary Elections Act and s 20(1) of the Presidential Elec- tions Act further require that, when the poll is open, the presiding officer must exhibit

outside his polling station a notice in English, Malay, Chinese and Tamil, giving directions for the guidance of voters in voting, “substantially” in the form set out below:

1. The voter may vote for one candidate or, if the electoral division is a group representation constituency, one group of candidates.

2. The voter has one vote.

3. The voter will go into the place reserved for the marking of ballot papers and mark a cross in the space provided for the purpose on the right hand side of the ballot paper opposite the name of the candidate or, if the electoral division is a group representation constituency, the names of the group of candidates, for which he votes, thus, X.
4. The voter will then fold up the ballot paper so as to show the official mark on the back, and without showing the front of the paper to any person, show the official mark on the back to the

presiding officer, put the paper into the ballot box and immediately leave the polling station.

5. If the voter inadvertently spoils a ballot paper, he can return it to the presiding officer who will, if satisfied of such inadvertence, give him another paper.
6. If the voter votes for more than one candidate or, if the electoral division is a group representation constituency, more than one group of candidates, on any ballot paper, his ballot paper will be void and will not be counted.
7. If the voter places any mark on the ballot paper by which he may afterwards be identified, his ballot paper will be void and will not be counted.

What Languages are Voting Documents Made Available in?

334. Section 40(2) and (3) of the Parliamentary Elections Act and s 23(2) of the Presidential Elections Act require that ballot papers list candidates in English – not in Malay, Chin-

ese or Tamil. There do not appear to be any provisions relating to the translation of ballot papers.

What Assistance is given to Voters with Language Difficulties?

335. There is no statutory provision made for the assistance of a voter who does not speak English, Malay, Chinese or Tamil, although the Registration Officer and the Returning

Officer can appoint interpreters as necessary:

Appointment of clerks and interpreters

(1) The Registration Officer and the Returning Officer may, from time to time, appoint such numbers of clerks and interpreters as may be necessary for the purposes of this Act.

(2) The appointments made under subsection (1) may be revoked at any time

336. The provisions governing the election of the President of Singapore are, as regards language, in substance the same as those governing parliamentary elections.
     

Recommendations

337. The Singaporean approach would exclude eligible voters who do not speak English, Malay, Chinese or Tamil to a high enough standard to vote. There is vir-

tually no provision made for voters who do not speak one of the above languages. On the other hand, by requiring that information be made available in the country’s four official languages, Singapore removes the element of discretion when deciding what languages information should be published in, ensuring a consistent approach across all electorates.

338. The Senior Director of the Prime Minister’s Office in Singapore said that there is compulsory education at primary school by law, and a bilingual policy so all chil-

dren would learn English as well as their mother tongue – be it Malay, Chinese or Tamil. It is therefore very unlikely that there are eligible voters who do not understand any of the languages and are thus unable to vote. There has been no feedback or indication of any chilling effect on the rights of linguistic minorities to cast a vote. Voting cards are also deliberately made very simple with diagrams to help the voting process.69

South Africa

339. The 2011 Census in South Africa found that 79.2 per cent of South Africans identified as “Black”, 8.9 per cent as “White”, and 8.9 per cent as “Coloured”. However, South Afri-

cans who identify as Black are culturally and linguistically diverse. Johannesburg is one of the cities being studied by the Max Planck Institute for the Study of Religious and Ethnic Diversity’s GlobaldiverCities project.

340. The Constitution of the Republic of South Africa provides that the “official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans,

English, isiNdebele, isiXhosa and isiZulu”. General elections in South Africa are governed by the Electoral Act 1998.

341. The Constitution further provides that:

6(3)

(a) The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.

(b) Municipalities must take into account the language usage and preferences of their resi- dents.

Is Voting Compulsory?

342. Voting is not compulsory in the Republic of South Africa. Voter turnout in the 2014 Par- liamentary election was 73.48 per cent.

Is Election Information Available in Languages other than the Majority Languages?

343. The South African Electoral Commission’s functions under the Electoral Commission Act 1996 include to:

a. Ensure that any election is free and fair;

b. Promote knowledge of sound and democratic electoral processes; and

c. Promote voter education.

344. In 2014, the Commission produced fact sheets, educational posters, a voter educa- tion booklet, a training manual and school education material. All fact sheets, posters

and the booklet were produced in 12 languages (11 official languages plus Nama), as well as in Braille and audio versions.

345. The Commission also published a Multilingual Election Terminology List in February 2014, aimed at educating the public about election terminology, providing election

practitioners and language experts with a tool to standardise and improve the quality of trans- lation, as well as broadening the public’s knowledge about elections.

What Languages are Voting Documents Made Available in?

346. The Electoral Act 1998 section 68 provides that the Commission determines which language should be used on a ballot paper, taking in account the election in which that

paper is to be used, which allows it to determine which language is most likely to be spoken in a particular region and arrange publication of voting documents in that language. This is an

improvement on systems where these decisions are made on a case-by-case basis by relative- ly low-level staff:

68 Ballot papers

The Commission must determine— [...]

(b) The language to be used on a ballot paper, taking into account the election in which that ballot paper is to be used.

[...]

What Assistance is Given to Voters with Language Difficulties?

347. The Electoral Act does not seek to make arrangements for a voter who does not speak one of the 11 official languages, or who does not understand the languages in which

voting documents have been made available.

Recommendation

348. As with Singapore, the South African approach is to provide all voting materials in one of the 12 languages, as well as in and virtually no other provision made

for voters who do not speak one of the above languages. There is a chilling effect on the

rights of linguistic minorities who cannot speak one of these languages to cast a vote but that should be a limited group.

Canada – Toronto

349. Canada faces particular diversity issues because of its colonial history and indigenous population. As well as French and English, there are over 60 aboriginal languages

spoken in Canada as at the 2011 Census. Other languages spoken by more than 100,000 Cana- dians in 2011 included Punjabi, Spanish, Italian, German, Mandarin, Cantonese, other Chinese dialects, Arabic and Portuguese. The approach which Canada has taken to helping those with poor English or French language skills vote must be viewed in the context of the Canadian Charter of Rights and Freedoms, and the electoral and linguistic freedoms which it guarantees.

Canadian Charter of Rights and Freedoms

350. The right to vote in Canadian elections is one of the rights guaranteed by the Canadian Charter of Rights and Freedoms. The Charter provides at s 3:

Every citizen of Canada has the right to vote in an election of the members of the House of Com- mons or of a legislative assembly and to be qualified for membership therein.

351. In Figueroa v Canada (Attorney General),70 the Canadian Supreme Court noted that:

...the purpose of s. 3 includes not only the right of each citizen to have and to vote for an elected representative in Parliament or a legislative assembly, but also the right of each citizen to play a meaningful role in the electoral process. This, in my view, is a more complete statement of the purpose of s. 3 of the Charter.

352. The Charter also protects language rights. Section 16 of the Charter provides that Eng- lish and French are the official languages of Canada, and “have the equality of status

and equal rights and privileges as to their use in all institutions of the Parliament and govern- ment of Canada”.

353. However, s 22 of the Charter preserves rights in respect of other languages, and states that:

Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

354. In practice, however, it appears that English and French continue to be explicitly privi- leged over other languages in Canadian legislation.

355. Section 133 of the Constitution Act 1867 continues in force, and states:

Either the English or the French Language may be used by any Person in the Debates of the Hous- es of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and pub- lished in both those Languages.

356. In 2005, the Standing Committee on Rules, Procedures and the Rights of Parliament con- sidered whether this provision might make it illegal to use a language other than French

or English in Parliament, and in particular whether a Canadian aboriginal language could be used, and concluded that it did not, French-Canadian Senator Serge Joyal OC OQ noting that:71

How do we solve this problem? To me it is not a problem; it is an asset. If the Parliament of Canada, and singularly the Senate, makes way to allow Aboriginal people to use their language, they allow those people to be themselves, to demonstrate their true identity as a component part of Canada and as a respected part of Canada.

Official Languages Act 1988

357. The Official Languages Act 1988 confirms and restates the principles of Canadian bilingual- ism. Section 24(3) specifically provides that the duty to “ensure that any member of the

public can communicate with and obtain available services from all of its offices or facilities in Cana- da or elsewhere in either official language” applies to the Office of the Chief Electoral Commissioner.

Canada Elections Act 2000 and Referendum Act 1992

358. The Canada Elections Act governs the election of members of Parliament to the Cana- dian House of Commons.
359. There is no language qualification for voting – s 3 of the Act provides that every person who is a Canadian citizen and is 18 years of age or older on polling day is qualified as an

elector.

360. The Referendum Act governs referenda in Canada. Section 3 of the Act provides that the Governor in Council may by proclamation “direct that the opinion of electors be ob-

tained by putting the question to the electors of Canada or of one or more provinces specified in the proclamation at a referendum called for that purpose”.

361. Section 3(5) provides:

The Chief Electoral Officer shall ensure that the text of a referendum question is available in such aboriginal languages and in such places in those languages, as the Chief Electoral Officer, after consultation with representatives of aboriginal groups, may determine.

362. Section 7 provides that the Canada Elections Act applies to the conduct of a referen- dum, subject to any necessary amendments made by the Chief Electoral Officer. The

same observations made below accordingly apply.

Is Voting Compulsory?

363. Voting is not compulsory in Canadian elections at a federal, provincial or local level. Voter turnout to the 2011 federal election was 61.4 per cent.

Is Election Information Available in Languages other than the Majority Languages?

364. Section 48 of the Canada Elections Act provides that before a new elector can be registered, they must be sent the Chief Electoral Officer’s information relating to him

or her, and asked if he or she wishes to be included in the Register of Electors. A new elector who wishes to be included in the register must confirm, correct or complete the information, in writing, and give it to the Chief Electoral Officer along with a signed certification that he or she is qualified as an elector.

365. There does not appear to be any requirement that the Chief Electoral Officer provide the information in a language the person can understand.
366. Once a writ has been issued, s 95 requires Returning Officers to send a notice of confirmation of registration to every elector (other than soldiers, prisoners, or overseas

electors). Section 95(3) invites the elector to contact the Returning Officer if he or she requires a language or sign language interpreter. In practice, the notice itself appears to be in English and French.

367. Elections Canada provides extensive information to minority language speakers on how to vote. Voting information is made available in 43 languages, including the major

Canadian aboriginal languages.

What Languages are Voting Documents Made Available in?

368. Ballot papers are printed in English and French, Canada’s official languages, consist- ent with the Canadian government’s obligations in respect of bilingualism discussed

above. The form of the ballot paper is prescribed by sch 1 to the Act.

What Assistance is Given to Voters with Language Difficulties?

339. Section 155 enables any elector who requires assistance to vote to have the assis- tance of a friend, spouse, or relative:

155 Assistance by friend or related person

(1) If an elector requires assistance to vote, a friend, the spouse, the common-law partner or a relative of the elector or a relative of the elector’s spouse or common-law partner may

accompany the elector into the voting compartment and assist the elector to mark his or her ballot.

(2) No person shall as a friend assist more than one elector for the purpose of marking a ballot.

(3) A person described in subsection (1) who wishes to assist an elector in marking a ballot shall first take an oath, in the prescribed form, that he or she

(a) will mark the ballot paper in the manner directed by the elector;

(b) will not disclose the name of the candidate for whom the elector voted;

(c) will not try to influence the elector in choosing a candidate; and

(d) has not, during the current election, assisted another person, as a friend, to mark a ballot.

(4) No person who assists an elector under this section shall, directly or indirectly, disclose the candidate for whom the elector voted.

370. This provision is similar to other provisions relating to assisting others to vote, albeit with stronger prohibitions to attempt to avoid misconduct.
371. Section 156 permits a deputy Returning Officer to appoint and swear in “a language or sign language interpreter to assist the officer in communicating to an elector any

information that is necessary to enable him or her to vote”.

Recommendations

372. Canada has a complex relationship with language because of its bilingual origin, as well as its settler origins (like New Zealand). This means that there are some

key parts of the voting process and the documents and information made available which are restricted to English and French. Despite this, there is a large volume of information made available in many other languages, particularly aboriginal languages.

373. The provision dealing with assisted voting is also the most sophisticated in this case study, in as far as it actually attempts to discourage misconduct by the

person assisting. This is a sensible approach which should be considered for adoption in New Zealand.

Municipal Elections Act 1996

374. This is an Ontarian statute regarding the conduct of municipal elections, including in Canada.

375. Section 9 of the Act addresses the language in which notices and forms may be given:

9 Language of notices and forms

(1) Notices, forms and other information provided under this Act shall be made available in English only, unless the council of the municipality has passed a by-law under subsection (2).

(2) A municipal council may pass a by-law allowing the use of,

(a) French, in addition to English, in prescribed forms;

(b) French, other languages other than English, or both, in notices, forms (other than prescribed forms) and other information provided under this Act. 1996, c. 32, Sched., s. 9 (2).

376. The City of Toronto passed bylaw number 1176-2009 on 2 December 2009, which provides that:

Election information provided to electors under the Municipal Elections Act, 1996 for a regular municipal election or a City-wide by-election may be prepared in any language which the most recent and available Statistics Canada data shows was spoken and understood in the home by at least two percent of a ward’s population at the time of the census.

377. In the 2014 municipal election in Toronto, information was accordingly made available in 24 languages.

378. Section 52(4) of the Act simply states that:

The deputy returning officer may permit an elector who needs assistance in voting to have such assistance as the deputy returning officer considers necessary.

Recommendations

379. Toronto’s approach to the provision of electoral information appears to strike a balance between ensuring voters can access voting information while recognis-

ing that every single language cannot reasonably be accommodated. Effectively setting a mechanism to determine which languages will be recognised ensures that particular languages are not marginalised, although the effectiveness of this mechanism depends primarily on the accuracy of data from Statistics Canada.

380. However, in terms of actually assisting voters, the Act depends essentially on the discretion of the deputy Returning Officer at a particular polling place. There

is no standard procedure for assisting a person with language limitations to vote.

Australia

381. Australia is also superdiverse. In June 2014, 28 per cent of Australian residents were born outside Australia. New Zealanders and people from the United Kingdom and

Chinese people are the three largest groups. Federal elections in Australia are governed by the Commonwealth Electoral Act 1918. Constitutional referenda are governed by the Referendum (Machinery Provisions) Act 1984.

Is Voting Compulsory?

382. Section 245 of the Commonwealth Electoral Act makes it “the duty of every elector to vote at each election”. Failure to vote incurs an initial penalty notice of $20 unless a

“valid and sufficient” reason is given for the failure to vote. A person who fails to pay after the subsequent issue of a reminder notice can be convicted of an offence and fined $50. There is no other consequence for failing to vote.

383. Section 45 of the Referendum (Machinery Provisions) Act 1984 establishes a similar regime, including penalties, for electors who fail to vote in constitutional referenda.
384. In the 2013 elections for the federal Parliament, Australia had a 93.23 per cent voter turnout. The advantage of imposing a small penalty for failing to vote is that it serves

as a gentle reminder rather than a severe penalty. A severe penalty may paradoxically lead to migrants feeling less engaged with their new country rather than improving civic engagement.

Is Election Information Available in Languages other than the Majority Languages?

385. Section 7 of the Commonwealth Electoral Act provides that it is a function of the Elec- toral Commission to “promote public awareness of electoral and parliamentary matters

by means of the conduct of education and information programs and by other means”.

386. The Australian Electoral Commission has a Multicultural Plan 2013–2015 which aims to promote knowledge of and participation in Australia’s electoral system equitably

across the Australian community. Examples of the steps undertaken by the Australian Electoral Commission include:

a. Community education workshop programmes using bilingual educators;

2. Supporting new citizens to enrol by providing relevant information for inclusion in citizen application packs, providing partially completed enrolment forms to new citizens at their citizenship ceremonies and, wherever possible, having Commission staff available at ceremonies to assist with completing and collecting enrolment forms;

c. Publishing translated material on its website;

d. Providing access to a telephone translator service for phone enquiries;

5. Using a specialist consultant (and ABS data) to determine the priority languages into which to translate material, and regularly updating this advice;
6. Providing translated materials in polling places and aiming to employ as many as possible bilingual or multilingual staff in those polling places; and
7. Creating a new category of bilingual/multilingual polling staff for polling places with high levels of informal voting. Staff will explain voting procedures to voters.

What Languages are Voting Documents Made Available in?

387. Nomination and ballot papers are prescribed as being in English by sch 1 to the Elec- toral Act 1918. There does not appear to be any provision made for their translation into

other languages.

388. It is also relevant that s 93A(2)(c) of the Act provides that the Commissioner may de- cide not to include a person’s name on the electoral roll (rendering them ineligible to

vote) if the name “is not written in the alphabet used for the English language”.

What Assistance is given to Voters with Language Difficulties?

389. The Electoral Act 1918 makes no specific provision for voters with limited or no English.

390. Section 234 of the Act provides that if a voter satisfies the presiding officer that “his or her sight is so impaired or that the voter is so physically incapacitated or illiterate that

he or she is unable to vote without assistance”, the voter may appoint a person to enter the polling booth and “mark, fold, and deposit the voter’s ballot paper”. But, unlike New Zealand, there is no specific provision made for a person speaks little or no English.

Recommendations

391. While the Australian Electoral Commission has a comprehensive strategy to improve voting by migrants, New Zealand’s electoral legislation is more sophisti-

cated in terms of the measures and accommodations to enable those migrants to actually vote. New Zealand’s Electoral Commission already adopts some of the strategies of the Australian Electoral Commission, and should consider whether more can be done.

392. However, compulsory voting in Australia does appear to have delivered con- sistently high participation rates. The advantage of imposing a small penalty for

failing to vote is that it serves as a gentle reminder rather than a severe penalty. A severe penalty may paradoxically lead to migrants feeling less engaged with their new country rather than improving civic engagement.

Summary of Recommendations from Comparable Superdiverse Jurisdictions

394. The following accommodations made overseas appear to have merit and should be adopted in New Zealand:

a. New Zealand should consider the adoption of compulsory voting to improve voter participation rates;

b. New Zealand’s Electoral Commission should adopt a formal multicultural plan which focusses on improving voter participation rates among new migrants, and be prop- erly funded to implement such a plan;

c. If voters are to be asked questions to verify their identity and eligibility to vote, then

they should only be required to provide “satisfactory” answers instead of specified written answers in English;

4. Where possible, decisions about how and in what languages information is to be provided should be rules-based rather than discretion-based, provided that the rules are kept under review so that they can change to reflect New Zealand’s chang- ing demographic makeup ;
5. There should be a requirement during elections and referenda to provide informa- tion in particular languages based on a statistical analysis of the most commonly spoken languages in New Zealand, rather than on a regulator’s assessment of what is needed, and if the decision depends on a regulator’s assessment of what is needed then the main languages spoken in New Zealand should be a mandatory relevant consideration; and
6. People assisting others to vote should be required to swear a declaration that they will follow the voter’s instructions and preserve secrecy. Breaching this declaration should be an offence.

Table: Comparison between New Zealand and superdiverse jurisdictions

* Some exceptions for Commonwealth and European Union citizens.

Index

Subject.....paragraph reference

2013 Census 5, 39-43, 49

accommodations for voters, conclusions 300-302

advance voting

parliamentary elections 135-136

assistance to register to vote 69, 70

assistance to vote 8, 11, 13, 14, 15, 16, 17, 22, 116-

129 see also interpreters, person assisting voter assisting person 32, 34

Australia 32, 387-390

Canada......32, 367-369, 376

chance of electoral fraud 22

citizens initiated referenda 226-230

discrimination 23, 34

electoral referendum 1993 244

local government elections 181-183

London 311, 313, 322

numbers requiring 117

practical limitations 17

recommendations 130-131

Singapore 32, 324, 333, 334

South Africa 345

statutory accommodations 19, 22, 25, 28, 29

undue influence 22

United Kingdom 32

Australia 12, 32, 379-390

assistance to vote 387-390

compulsory voting, penalties 380, 381

compulsory voting, turnout 382

compulsory voting......380-382, 390 ethnic breakdown 379

language of ballot papers 385-386

language of election information 383-384

ballot papers

citizens initiated referenda 26

content 113-114

exclusively in English 25

giving answers in writing 110

language, Australia 385-386

language, Canada 366

language, London 320

language, Singapore 332

language, South Africa 344

languages used, New Zealand 114, 115

other languages 34

parliamentary elections 106-115

problems of limited English language 108

recommendation 112, 115, 146

referenda 245, 248, 252, 253

Te Reo Māori 34

unconscious bias 106

use of interpreter 111

verification of voter identification 106, 107,

108, 109

barriers to voting see also language limitations availability of interpreter 21, 23

ballot paper in English 21, 25, 34

coming from ‘non-free’ countries 48

disengagement 47

lack of access to information 54

lack of confidence in processes 54

lack of understanding of process 54

lack of understanding 47

language limitations 54

language 21

local government elections 153-191

questions about identity 21, 23, 34

voter verification 21, 23

voting information 21, 23

New Zealand Bill of Rights Act 1990 limitations on rights 273-276

to whom does it apply 266

booth voting 165

First Past the Post 173

Single Transferable Voting 173

Canada 32, 347-378

assistance to vote......367-369, 376 language of ballot papers 366

language of election information ..362-365,

373-375

languages spoken 347

municipal elections 372-376

official languages 350-355

parliamentary elections 356, 357

referenda 358-360

right to vote......277-279, 348, 349

rights in respect of languages 351-355

voting not compulsory 361

candidate statements 23, 176-180

citizens initiated referenda 34, 193, 198-230 assistance with voting 226-230

collection of signatures 204, 207, 208

deceit of voters 34

English language limitations 206, 207, 208,

256

form of voting paper 213-218

interpreters 221, 222, 257

lack of English no barrier to vote 209-211

language of petition form 202, 203

language of voting paper......213-218, 258 offences 207, 208, 256

petition 199-203

problems with oral English 223-225

recommendations 218, 220, 222, 225, 230

signatures 201, 204-208

triggering requirements 198

understanding the petition 207, 208

voter verification......223-225, 260

voting information, language of 219, 220, 259

voting papers 212-218

voting qualifications 209-211

wording 200

citizenship English language level 60

civic education, teaching materials 46

civic participation 9, 10, 35, 51

and social cohesion 44

comparable superdiverse jurisdictions...31-32 see also

Australia, Canada, London, Singapore, South Africa recommendations 311, 322, 335-336, 346,

370, 371, 377, 378, 389, 390

compulsory retirement savings scheme referendum 250-255

assistance with voting 255

compulsory voting 9, 11, 12, 32, 34, 308, 311

Australia......380-382, 390

Canada 361

London 313

penalties 12, 32, 308, 327, 328

Singapore 326-328

South Africa 340

disenfranchisement see barriers to voting, non-voters, voter participation

elections

legitimacy 1, 5

participation 18, 20

regulation 2

Electoral Commission

advance voting 135-136

ballot papers 106-115

casting the vote 116-134

election staff on polling day 83-94

functions 76

hospital voting 137

interpreters 95-105

objective 75

outreach 82

pilot community engagement programme 79,

80, 81

promoting public awareness 76, 77, 78, 79, 80,

81

recommendations 143-148

redesign of materials 81

report on 2014 general election 45, 77, 82, 93

role 75-142

special voting 138-142

voting on polling day 83-94

electoral participation decline 4, 35

under-representation of ethnic minorities 36

electoral process, understanding of 45

electoral referendum 1993 244-246

assistance with voting 244

electoral referendum 2010 247-249

electoral staff see also returning officers discretion 23, 30, 84, 309

discretion to provide info in various languages 169

discretion to provide translations 174

exercise of powers 84

parliamentary elections...83-94 pay rates 34, 93

polling place officials 87

recommendations 143

training 34, 90, 91, 92

what must be provided for booth voting 173

electors see voters, ratepayer electors, residential electors

eligibility to vote see also parliamentary elections English language requirement 58, 62, 67

residence requirement 64

statutory provisions 61, 62, 63, 64

English language limitations

New Zealand Bill of Rights Act 1990 284, 285,

286, 288, 289

right to vote 271-272

freedom from discrimination 284, 285, 286,

288, 289

local government elections 149-191

English language ballot paper 25, 26

English requirements for voter participation 58

entitlement to vote see also eligibility to vote, right to vote

citizens initiated referenda 209-211

ethnic minority, definition 295

facilitation of voting see local government elections, parliamentary elections, referenda

findings, summary 27-33

flag referendum 52, 231, 234-243

accommodation for those with limited English 235-243

assistance with voting 235

ballot paper 34

information in other languages 237, 239-241

language of voting paper 243, 261

method of voting 242

postal voting 234

freedom from discrimination 263, 282-289

affirmative action 287

indirect discrimination. 284, 285, 286, 289

language 284, 285, 286, 288, 289

reasonable limits 288

to whom it applies 283

General Social Survey 36

government initiated referenda 196-197

hospital voting

parliamentary elections 137

interpreters 17, 21, 23, 34

availability at polling places 8

citizens initiated referenda 221, 222

difficulty in use 97, 98, 101, 102

discretionary appointment 95, 99, 100

local government elections 184, 185

parliamentary elections 95-105

recommendations......104-105, 144 telling candidates 103

use in 2014 96

Kids Voting 34, 94

language limitations

hindrance to voting 8, 11, 13, 15

limits to assistance 17

languages spoken see also linguistic diversity Canada 347

London 312

New Zealand 38-43

Pacific languages 43

Singapore 323

South Africa 338

which to provide information in 34, 311

linguistic diversity......38-43, 59, 60, 312, 324, 339, 348 local government elections

Asian participation 46

assistance by another person 181-183

New Zealand Bill of Rights Act 1990 281, 283,

291

booth voting 165, 169

candidate profile statements 176-180

content of voting documents 171, 172

English language requirement 150

English language 166

entitlement to vote 153, 154, 155, 156

interpreters 184, 185

language of enrolment information 160

language provisions 160, 161, 162, 163, 164

online voting 152

parliamentary elector’s right to vote in local 154

polling day 181-185

postal voting 151

provision of info in various languages 169, 175

provision of translations 174, 175, 176-180

purpose of local government 51

ratepayer elector 156, 159, 160

recommendations 34, 163, 168, 175, 185, 189,

190-191

residential elector 156, 158

right to vote 149, 150, 153-162

roll of electors 158

special voting......186-189, 191 translations of documents 24

voter verification 165, 166

voting documents 164, 165, 168, 169-175

voting documents in other languages 172, 175

London 312-321

compulsory voting 313

language of election information 314-320

languages spoken 312

migrant voting rates 49

minorities’ rights 263, 290-299

‘ethnic minority’, definition 295

‘minority’, definition 294

and electoral legislation 297

application 291

bill of rights 290

negative freedom rather than positive

duty 292

not an absolute right 297

New Zealand Bill of Rights Act 1990 see bill of rights, right to vote, freedom from discrimination, minorities’ rights

non-voters 4,5, 301 see also barriers to voting,

voter participation

constitutional ramifications 52

growing numbers 49

reasons 6, 36

who they are 36

official languages 8, 34, 55

online voting trial 152

Parliament, representation of ethnic minorities and immigrants 37, 50

parliamentary elections

advance voting 135-136

ballot papers 106-115

New Zealand Bill of Rights Act 1990 57, 281,

283, 291

Canada 357, 358

casting a vote 116-134

compulsory registration 58, 65

disqualification from registration 66, 67

election staff on polling day 83-94

elector’s right to vote in local elections 154

English language level 59, 60, 67, 73

entitlement to vote, history 72-74

hospital voting 137

interpreters 95-105

languages of materials 81

outreach 82

recommendations 34

redesign of enrolment and voting materials 81

registration process 68, 69, 70, 71

residence requirement 64

right to vote 57, 58

Singapore 327, 328

special voting 138-142

statutory provisions 61, 62, 63, 64

voting on polling day 83-94

parliamentary electors 154, 156, 157

permanent residents (NZ)

New Zealand Bill of Rights Act 1990 283

coming from non-free countries 48

comparable jurisdictions 307

eligibility to vote 2, 74

English language level 59, 60

freedom from discrimination 283

right to vote 266

s 12 bill of rights does not apply 266

person assisting voter Canada 367, 368, 371

citizens initiated referenda 226-230

declaration to be given 130

local government elections 183

London 321

offences 131

recommendation 147, 148

undue influence 121, 122

postal voting see also local government elections citizen initiated referenda 193

entitlement to vote 210

flag referendum 234

government initiated referenda 196

voter verification 167

prisoners and the right to vote.......267-270, 280 ratepayer electors 156, 159

enrolment 26, 34

notice about enrolment in other languages 190

recommendations, summary 34

referenda held pursuant to empowering legislation

......193, 231-255 see also flag referendum, electoral referendum 1993, electoral referendum 2010, compul- sory retirement savings scheme referendum

provisions for ethnic minorities and migrants 232-233

referenda ... 192-262 see also citizens initiated refer- enda, government initiated referenda

assistance to answer questions 34

New Zealand Bill of Rights Act 1990 281, 283,

291

Canada 359-361

compulsory voting, Australia 382

evolving constitutional importance 1, 20, 52,

53, 195

importance of voting 195

legitimacy 53

participation 18, 19, 20

recommendations 34, 256-262

upcoming 52

representation in Parliament 37, 50

residential electors 156, 158

returning officers see also electoral staff appointment of polling place officials 87

designation 86

exercise of powers 85

operational manual 85

training 89

right to vote 263, 265-281

Canada 348, 349

English language limitations and the

New Zealand Bill of Rights Act 1990 271-272

freedom from discrimination 282-289 prevention of voting and New Zealand Bill of Rights Act 1990 272, 273

qualification for election to Parliament 265

sentenced prisoners......267-270, 280

rules-based approaches 34, 309, 310, 311

secret ballot 16, 22, 116

problems of limited English language 116, 119,

120, 123-129

recommendation 130-131

voting alone 116, 118, 119, 120

Select Committee report on 2013 Local authority

elections 46

Singapore 12, 32, 323-336

assistance to vote 324, 333, 334

compulsory voting 326-328

election to Parliament, language require- ments 325

language of election information 329-331

languages spoken 323

South Africa 337-346

assistance to vote 345

compulsory voting 340

ethnicity 337

language of ballot papers 344

language of election information 341-343

languages spoken 338

official languages 339

special votes

applications 134

ballot papers 133

casting 141-142

declaration......34, 138-140, 186, 187 hospital votes 137

in advance 135, 136

local government elections..186-189, 191 parliamentary elections 138-142

problems of limited English language 132-142

superdiverse see also language limitations, languages spoken, linguistic diversity, non-voters, voter participation

in Parliament 37, 50

reasons for non-voting 6

under-representation see non-voters, voter participa- tion, barriers to voting

United Kingdom ...32 see also London

vote casting see assistance to vote, secret ballot voter participation 8, 9, 34, 51 see also barriers to

voting, non-voters

and social cohesion 44

Asian participation 46

coming from non-free countries 48

compulsory registration to vote 58

English language requirement 58, 62, 67

habit-forming nature 46

improving 311

London 314

sense of belonging 47

under-representation 35-56 voter registration 71

compulsory 65

disqualification 66

forms in other languages 34

voter verification 311 see also ballot papers

freedom from discrimination 284

indirect discrimination 284, 285

local government elections 165, 166

London 313, 320

recommendation 145

use of interpreter 111

voters see assistance to vote, non-voters, ratepayer electors, residential electors, voter participation voting see also assistance to vote, barriers to voting, compulsory voting, local government elections,

non-voters, parliamentary elections, referenda, voter participation

obstacles 8, 11

parliamentary elections 83-94

understanding the process 7 and 45

voting assistance see assistance to vote, person assisting voter, voter participation

voting eligibility

English ability 18

permanent residents 2, 27

voting information ...34

language, Australia 383-384

language, Canada......362-365, 373-375 language, London 314-318

language, Singapore 329-331

language, South Africa 341-343

voting papers see ballot papers

Endnotes

1. Statistics New Zealand Non-voters in 2008 and 2011 General Elections: Findings from New Zealand General Social Survey (2014).
2. Statistics New Zealand “2013 Census ethnic group profiles” <www.stats.govt.nz>.
3. Superdiverse cities have been defined as cities where more than 25 per cent of the resident population is comprised of ethnic migrants. Paul Spoonley “Auckland’s Future: Super-Diverse City” (Conversations in Integration, 28 November 2013). Other academics have alternatively defined superdiverse cities as those where more than 100 nationalities are represented.
4. Report of the Electoral Commission on the 2014 General Election (March 2015) at [181].
5. R Simon-Kumar “Difference and Diversity in Aotearoa/New Zealand: Post-neoliberal

constructions of the ideal ethnic citizen” (2014) 14(1) Ethnicities 136–159 at 146.

6. See the recent movie called Selma about Martin Luther King and the white officials who used the need to answer questions showing knowledge of the US constitution as a way of keeping black citizens from being able to vote.
7. Report of the Electoral Commission on the 2014 General Election, at [56] - [57].
8. Report of the Electoral Commission on the 2014 General Election (March 2015) at [118].
9. Communications with the Chief Electoral Officer, Electoral Commission, September 2015.
10. Democracy Services Comparison of Voters and Non-voters: Results from the General Social Survey 2013 (Auckland Council, January 2015) at 3.
11. Democracy Services Comparison of Voters and Non-voters: Results from the General Social Survey 2013 (Auckland Council, January 2015) at 3 and 4.
12. Statistics New Zealand “QuickStats about culture and identity: Languages spoken” (2013) <www. stats.govt.nz>.
13. W Friesen Asian Auckland: The Multiple Meanings of Diversity (Asia New Zealand Foundation, February 2015) at 43.
14. Electoral Commission Statement of Intent for 2014/15–2020/21 at 7.
15. Report of the Electoral Commission on the 2014 General Election (March 2015) at 22.

16. Justice and Electoral Committee Inquiry into the 2013 Local Authority Elections (25 July 2014) at 4.
17. Justice and Electoral Committee Inquiry into the 2013 Local Authority Elections (25 July 2014) at 5.
18. Anne Henderson Immigrants and Electoral Enrolment: Do the Numbers Add Up? (Statistics New Zealand Working Paper No 13-01, January 2013) at 8.
19. Statistics New Zealand Non-voters in 2008 and 2011 General Elections: Findings from New Zealand General Social Survey (2014).
20. Statistics New Zealand “2013 Census ethnic group profiles” <www.stats.govt.nz>.
21. See, for example, M Chen Public Law Toolbox (2nd ed, LexisNexis, 2014), ch 28.
22. See, for example, Democracy Services Comparison of Voters and Non-voters: Results from the General Social Survey 2013 (Auckland Council, January 2015) at 3 and 4.
23. For example, the 2013 Census noted that 87,534 people did not speak English at all.
24. Of New Zealanders who did not vote in the 2011 General Election, 7.1 per cent gave as their reason for not voting: “I didn’t think it was worth voting because my vote wouldn’t have made a difference,” and 7.0 per cent , “I didn’t think it was worth voting because it makes no difference which party is in government”.
25. Sections 6, 7 and 9 of the Citizenship Act 1977 respectively.
26. The role of the Electoral Commission is covered in more detail in Mai Chen Public Law Toolbox (2nd ed, LexisNexis, 2014), ch 5, from which this section is adapted.
27. Report of the Electoral Commission on the 2014 General Election (March 2015) at ii and 51.
28. Report of the Electoral Commission on the 2014 General Election (March 2015) at [96].
29. Communications with the Chief Electoral Officer, Electoral Commission, September 2015.
30. Report of the Electoral Commission on the 2014 General Election (March 2015) at [182].
31. Report of the Electoral Commission on the 2014 General Election (March 2015) at [122].
32. Communications with the Chief Electoral Officer, Electoral Commission, September 2015, and with Electoral Commission staff in July 2015.

33. Report of the Electoral Commission on the 2014 General Election at [56] – [57].
34. Report of the Electoral Commission on the 2014 General Election (March 2015) at [118].
35. Email from the Electoral Commission (29 July 2015).
36. Communications with the Chief Electoral Officer, Electoral Commission, September 2015, and with Electoral Commission staff in July 2015.
37. Hansard, vol 310, p 2840.
    
38. Hansard, vol 310, p 2843.
    
39. Hansard, vol 310, p 2850.
    
40. Electoral Act 1927; Legislature Act 1908; Electoral Act 1905; Electoral Act 1902; Electoral Act 1893; Regulation of Elections Act 1881; Regulation of Elections Act 1870; Regulation of Elections Act 1858.
41. Or, in the case of a tangata whenua vote cast under reg 22 of the Electoral Regulations 1996, a polling place for a general electoral district has not also been appointed a polling place for a Māori electoral district.
42. The now-repealed Local Elections and Polls Act 1976 made similar provision:

36 Blind, disabled, or illiterate voter—– Where any elector—

(1) [...]

(c) is not sufficiently familiar with the English language to vote without assistance, and the “Directions to Voter” section of the voting paper is not translated into any other language with which he is sufficiently familiar to enable him to vote without assistance, -

the elector may vote in accordance with this system.

(2) At the request of any voter who has received a voting paper and is wholly or partially blind, any person nominated by the voter, or if no person

is nominated, the Deputy Returning Officer, shall assist the voter to mark the voting paper in accordance with the instructions of the voter...

43. Sections 53A and 53B of the Citizens Initiated Referenda Act 1993.
44. “Referendum material” is defined in s 5 of the New Zealand Flag Referendum Act 2015 as “material that is prepared by a panel and presented to electors for the purpose of informing them about each of the options”.
45. Email from the Flag Consideration Project (8

October 2015).

46. Email from the Flag Consideration Project (8 October 2015).
47. See, for example, Mendelssohn v Attorney- General [1999] NZCA 67; [1999] 2 NZLR 268 (CA) in respect of s 20 and the decision of the High Court in Child Poverty Action Group Inc v Attorney-General HC Wellington CIV-2009-404-273, 25 October 2011,

Dobson J sitting with Ms J Grant and Ms S Ineson.

48. Taylor v Attorney-General [2015] NZHC 1706.
    
49. Taylor v Attorney-General [2015] NZHC 1706 at [2].
    
50. Taylor v Attorney-General [2015] NZHC 1706 at [76].
51. Taylor v Attorney-General [2015] NZHC 1706 at [77(a)].
52. R v Hansen [2007] NZSC 7.
    
53. Hoogbruin v Attorney-General of British Columbia (1985) 24 DLR (4th) 718, [1986] 2 WWR 700, 70 BCLR 1, 20 CRR 1 (BC CA).
54. Henry v Canada (Attorney-General) 2014 BCCA 30 at [104].
55. Taylor v Attorney-General [2015] NZHC 1706 at [78].
56. The High Court held in NRHA v Human Rights Commission [1998] 2 NZLR 218 (HC) that s 19 prohibits both direct and indirect discrimination.
57. Mendelssohn v Attorney-General [1999] NZCA 67; [1999] 2 NZLR 268 (CA).
58. Mendelssohn v Attorney-General [1999] NZCA 67; [1999] 2 NZLR 268 (CA) at [14].
59. A Bill of Rights for New Zealand: A White Paper

(1985) AJHR A.6 at [384].

60. UNHRC General Comment 23 – Article 27 UN Doc HRI/GEN/1/Rev 1 (1994) at [9].
61. UNHRC General Comment 23 – Article 27 UN Doc HRI/GEN/1/Rev 1 (1994) at [5.1]–[5.2].
62. King-Ansell v Police [1979] 2 NZLR 531 (CA) at 538.
63. Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 (HL).
    
64. See the comments of Judge Moore in Police v Taurua [2002] DCR 306 (DC) at [50].
65. International IDEA: Institute for Democracy and Electoral Assistance “Voter turnout data for Denmark” available: http://www.idea. int/vt/countryview.cfm?id=63 (last accessed 25/09/2015).
66. Greater London Authority Elections Rules 2007, rr

24(4)(a), schd 1, 24(4)(a), schd 2, 23(4)(a), schd 3, 24(4)(a), schd 6, and 23(4)(a), schd 7.

67. Greater London Authority Elections Rules 2007, rr 29(2), schd 1, 30(2), schd 2, 29(2), schd 3, r 30(2), schd 6, and 29(2), schd 7.
68. Max Planck-Gesellschaft “New social diversity in global cities’”(2 April 2015).
69. Frank Goh, Senior Director of the Prime Minister’s

Office in Singapore, email of 30 September 2015.

70. Figueroa v Canada (Attorney General) [2003] 1 SCR 912 (SC).
71. Proceedings of the Standing Committee on Rules, Procedures and the Rights of Parliament, Issue 3, Evidence (1 June 2005).

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