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Final Report. Our recommendations for a fairer, cleaner and more accessible electoral system. Independent Electoral Review He Arotake Pōtitanga Motuhake [2023] NZAHGovRp 1 (30 November 2023)

Last Updated: 17 January 2024

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report

Our recommendations for a fairer, clearer, and more accessible electoral system

November 2023

This report may be cited as: Independent Electoral Review, 2023. Final Report: Our Recommendations for a Fairer, Clearer, and More Accessible Electoral System. Wellington: New Zealand.

ISBN 978-0-473-69963-5 (Print)

ISBN 978-0-473-69964-2 (Online)

This work is licensed under the Creative Commons Attribution

• 4.0 International licence. You are free to copy, distribute, and adapt the work, provided you attribute the work to the Independent Electroral Review, provide a link to the license, and indicate if changes were made.

Final Report | Contents ¹

Contents

Message from the Chair 5

Karere nā te Heamana 9

Executive Summary 13

Recommendations 29

Introduction 45

Why do elections matter? 45

Our task 45

Our approach 46

Our final report 48

Foundations 51

1. The Constitutional and Human Rights Context of Electoral Law 53
2. The Overall Design of Our Electoral Laws 67

Modernising electoral law 67

The use of primary and secondary legislation 71

The entrenched provisions 75

3. Upholding te Tiriti o Waitangi / the Treaty of Waitangi 87

The Voting System 103

4. Representation Under MMP 105

Our consideration of MMP 106

Party vote threshold 107

One-electorate seat threshold 116

² Final Report | Contents

Overhang seats 121

Ratio of electorate to list seats 125

Death of candidate during voting period 132

5. Parliamentary Term and Election Timing 135

The parliamentary term 135

Election timing 143

6. Vacancies in Parliament 149

Grounds for vacancies 149

Electoral integrity (party-hopping) rules 158

Process for filling vacancies 162

Voters 167

Parties and Candidates 275

12. Standing for Election 277

Party regulation 277

Candidate eligibility 288

Barriers to participation 296

13. Political Finance 299

Private funding 302

State funding 342

14. Election Advertising and Campaigning 359

General advertising restrictions 359

Media-specific regulation of advertising 364

Campaign spending limits and disclosure requirements 377

Electoral Administration 391

15. Electoral Commission 393

Objectives, functions and powers 393

Independence 396

Effective governance 398

16. Accessing the Electoral Rolls 403

Access to the electoral rolls and voter privacy 405

General inspection and sale of the rolls 406

Access to roll data for research 411

Party and candidate access 416

He Arotake Pōtitanga Motuhake

Independent Electoral Review

⁴ Final Report | Contents

Unpublished roll 420

17. Boundary Reviews and the Representation Commission 423

Relationship to the census 426

Population quota tolerance 430

Criteria for setting electorate boundaries 433

Frequency of boundary reviews 435

Membership of the Representation Commission 437

18. Electoral Offences, Enforcement and Dispute Resolution 441

Electoral offences 441

Consequences of being placed on the Corrupt Practices List 450

Enforcement 454

Dispute resolution 459

19. Security and Resilience 467

Managing the risks of disinformation 467

Foreign interference 477

Appendices 491

Appendix 1: Minor and technical recommendations 493

Appendix 2: Terms of Reference 501

Appendix 3: Impact of changes to MMP 509

Glossary 517

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report | Message from the Chair ⁵

Message from the Chair

E te Minita, tēnā koe

It is with pleasure that we submit the final report of He Arotake Pōtitanga Motuhake – the Independent Electoral Review.

Regular, free, and fair elections are a fundamental part of Aotearoa New Zealand’s democracy. It has been a privilege for the Panel to be tasked with the once-in-a- generation opportunity of reviewing the laws that govern our electoral system.

Because elections are inherently political, we have particularly wanted to ensure we undertook our task independently. In doing so, we have been guided by a principled approach to our objectives, which we inherited from the 1986 Royal Commission on the Electoral System.

Since we started our work in mid-2022, we have been heartened by and so grateful to the many New Zealanders who have engaged with us, offering the review their insights, ideas and expertise. They have represented all walks of life – including all the parliamentary parties represented in the last parliament, academics, community and professional organisations, civil society organisations, and many individuals.

While these New Zealanders represented a diverse range of views, almost all agreed that many parts of Aotearoa New Zealand’s electoral system are working well. However, they were also clear that there is room for improvement to ensure that our electoral law is fit for the future.

Having looked at previous reviews of our electoral system, at research, and at international models and experience, we agree.

The strength of our democracy comes predominantly from our people. Political participation is a fundamental right, and we’ve come a long way since Aotearoa New Zealand’s first election to ensure people can exercise those rights. But challenges remain. COVID-19 has shown that we need an electoral system that can withstand unprecedented disruptions. We know that trust in government can be eroded when disinformation takes hold or when people think that influence can be bought. And past breaches of te Tiriti o Waitangi / the Treaty of Waitangi, including in the electoral system, have left a lasting legacy on Māori political participation.

He Arotake Pōtitanga Motuhake

Independent Electoral Review

⁶ Final Report | Message from the Chair

The review allowed us to take a step back and look at our electoral law as a whole. Our electoral system needs to be robust to thrive in the face of challenges we are seeing to democracy at home and worldwide, and piecemeal change won’t deliver what we need. The changes we’ve recommended, taken together as a package, will significantly improve the strength and resilience of our electoral system.

The central thread running through our recommendations is our vision to make the electoral system fairer, clearer and more accessible so that as many people as possible can take part in it.

Making our electoral system fairer is one way we think more New Zealanders can be encouraged to take part in our elections. Getting a “fair go” is an idea that resonates with New Zealanders. We’ve found several areas where our current laws could be fairer, including ensuring the way seats in parliament are won more closely reflects the number of votes each party gets, expanding who is eligible to vote and stand as a candidate, and improving public confidence in elections and supporting a fair contest of ideas by making the rules for political financing and election campaigns fairer and more transparent.

We think there are also places where our electoral system can go further to support more New Zealanders to vote. As well as addressing barriers to participation that still exist for different communities, we think initiatives like civics and citizenship education, as well as community-led outreach and education, could make a real difference in encouraging voter participation and supporting people to make informed choices.

Finally, we think making our electoral law clearer and more accessible will make it easier for voters, parties and candidates to participate in our elections. Rewriting and modernising the Electoral Act will bring it into the 21^st century and make it easier to understand, implement and keep updated. We also need to ensure our electoral law upholds te Tiriti o Waitangi / the Treaty of Waitangi.

These are just some of the areas we touch on in this report. Our suite of recommendations

– more than 100 in total – represents our collective view and is the result of balancing competing rights and principles. Together, the recommendations form a package that we believe would help to remedy inequities, remove barriers, and future-proof our electoral system for future generations.

The review has been a significant undertaking. I extend my sincere thanks to all those who have been involved in delivering this report, including our submitters and those we met with. We would particularly like to thank our dedicated secretariat, who provided invaluable assistance throughout the review: Emily Douglas, Carl Blackmun, Jo Dinsdale, Leigh Huffine, Emma McCann, Kathleen Robertson, Anna Moore-Jones and Georgia Whelan. I also want to acknowledge the tireless efforts of my fellow Panel members.

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report | Message from the Chair ⁷

We present this report to you with a sense of optimism, in the knowledge that the improvements we recommend will build on the strengths of our current electoral system and see it do better into the future. We expect electoral law to keep evolving to meet the needs of our changing society, allowing space for more voices and for future innovation.

We have been honoured to contribute to the conversation; it is now over to others, particularly the government, to continue it.

Ngā mihi nui

Deborah Hart

Chair, Independent Electoral Review Panel

He Arotake Pōtitanga Motuhake

Independent Electoral Review

⁸ Final Report

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report | Karere nā te Heamana ⁹

Karere nā te Heamana

E te Minita, tēnā koe

E harikoa ana mātou ki te tuku i te pūrongo whakamutunga o He Arotake Pōtitanga

Motuhake.

He wāhanga waiwai ngā pōtitanga auau, herekore, tōkeke hoki o te manapori o Aotearoa. Nō te Pae te whiwhi i whai wāhi nei mātou ki te whakahaere i tētahi arotake mōmōhanga i ngā ture whakahaere i tō tātou pūnaha pōtitanga.

I te mea he mea pūmau ā-tōrangapū ngā pōtitanga, i tino hiahia mātou ki te whakahaere motuhake i ā mātou mahi. Nā whai anō, kua arahina mātou e tētahi tikanga ā-mātāpono ki ō mātou whāinga, i takea mai i te Kōmihana Roera ki te Pūnaha Pōtitanga 1986.

I te tīmatanga o ā mātou mahi i te puku o te 2022, i manawanui ai mātou, otirā i whakamiha hoki mātou ki te tokomaha o ngā tāngata o Aotearoa i whai wāhi mai ki a mātou, te tuku mai i ō rātou tirohanga, whakaaro me ngā mōhiotanga hoki. Nō ngā momo kātū noho katoa - tae atu ki ngā rōpū tōrangapū katoa i rō pāremata i te tau nei, ngā pūkenga, te hapori me ngā rōpū ngaio, ngā rōpū porihanga me te hunga takitahi.

Ahakoa ka whakakanohi ēnei tāngata i ngā whakaaro kanorau, ko te nuinga i whakaae e pai ana te mahi o te nuinga o ngā wāhanga o te pūnaha pōtitanga o Aotearoa. Engari i mārama hoki rātou tērā ētahi āhuatanga hei hiki, e mātua rite ai tō tātou ture pōtitanga mō raurangi.

Nā te tiro ki ngā arotake o mua ki tō tātou pūnaha pōtitanga, ki ngā rangahau, tae atu ki ngā tauira me ngā wheako o tāwāhi, e whakaae ana hoki mātou.

Ko te pakari o tō tātou manapori i ahu hāngai mai i tō tātou iwi. He mōtika taketake te whai wāhi ā-tōrangapū, ā, kua tawhiti te haere, i te pōtitanga tuatahi o Aotearoa e taea ai e te iwi te whakatinana i taua mōtika. Engari tērā tonu ngā wero. I whakaatu mai te KOWHEORI-19 i te hiahia ki tētahi pūnaha pōtitanga e taea ai te kaupare i ngā whakararu tauira-kore. Kei te mōhio mātou ka waimeha pea te pono ki te kāwanatanga i te horanga o ngā kōrero whakatuapeka, i te wā rānei e whakaaro ana te tangata ka taea te hoko i te pōti. Waihoki kua roa nei te whakaaweawe kinotia o te Māori me tana whai wāhi ā-pōti e ngā takahanga o Te Tiriti, tae atu ki te pūnaha pōtitanga anō.

He Arotake Pōtitanga Motuhake

Independent Electoral Review

¹⁰ Final Report | Karere nā te Heamana

Nā te arotake nei i āhei ai mātou ki te hoki whakamuri ki te titiro whānui ki te ture pōtitanga. Me pakari tō tātou pūnaha pōtitanga e tōnui ai ahakoa ngā uauatanga e kite nei tātou ki te manapori, i tēnei motu, i te ao hoki, ā, e kore e puta he oranga i ngā panoni moroiti noa. Mā ngā whakahoutanga e taunakitia ana e mātou, otirā hui katoa, e tino hiki i te pakaritanga me te manawaroatanga o tō tātou pūnaha pōtitanga.

Ko te ngako matua o ā mātou tūtohu, ko te whāinga kia tōkeke ake, kia mārama ake, kia tomopai ake hoki te pūnaha pōtitanga, kia whai wāhi nui ai te tangata.

Ko te whakarite kia tōkeke ake tō tātou pūnaha pōtitanga tētahi ara hei whakahihiri i te iwi o Aotearoa kia whai wāhi ake ki ō tātou pōtitanga. Ko te whakarite 'kia ōrite te whai wāhi' tētahi whakaaro e rata ana ki ngā tāngata o Aotearoa. Kua kite mātou i ētahi ture hei whakahoutanga kia tōkeke ake, pēnei i te whakarite i te tikanga o te whakawhiwhi tūru pāremata kia āta whakaata ake i te nui o ngā pōti ka whiwhi i ia rōpū, te whakawhānui i te hunga āhei ki te pōti, me te tū hei kaitono, me te hiki i te māia ā-tūmatanui ki ngā

pōtitanga me te tautoko i te tauwhāinga ā-whakaaro tōkeke mā te hanga ture mō te tuku pūtea ki ngā rōpū tōrangapū me ngā kaupapa pōtitanga kia tōkeke ake, kia pūataata ake hoki.

Ki ō mātou whakaaro, tērā ētahi atu āhuatanga hei whai mā te pūnaha pōtitanga ki te tautoko i te iwi o Aotearoa ki te pōti. I tua atu i te turaki i ngā tauārai whakauru e pākati tonu ana i ētahi hapori, e whakaaro ana mātou ka whai hua pea ngā kaupapa mātauranga raraupori, kirirarau hoki, tae atu ki ngā take toronga, take mātauranga e arahina ana e te hapori, ki te akiaki i te hunga kaipōti me te tautoko i te tangata kia mārama tāna i kōwhiri ai.

Hei whakakapi, e whakaaro ana mātou mā te whakapūahoaho i te ture pōti, kia āhei ake hoki, ka ngāwari ake te whai wāhi o ngā kaipōti, ngā rōpū tōrangapū me ngā kaitono ki ō tātou pōtitanga. Mā te tuhi anō me te whakahou i te Ture Pōtitanga, e tō mai i te ture ki tēnei rautau, ā ka mārama ake, ka ngāwari ake hoki te whakatinana me te whakahou. Me mātua whakarite hoki kia hāpaitia e tō tātou ture pōtitanga Te Tiriti o Waitangi.

Koia nei ētahi whakaaro ka kōrerotia i roto i tēnei pūrongo. Ka noho ō mātou tūtohu - otirā neke atu i te 100 - hei whakakanohitanga o ō mātou tōpūtanga whakaaro, ā, ko te hua tēnei o te tauritetanga o ngā mōtika me ngā mātāpono maha. Mā te whakatōpū i ngā tūtohu, e whakapono ana mātou ka āwhina ēnei ki te whakatika i ngā tōritetanga, te turaki tauārai me te whakarite i tō tātou pūnaha pōtitanga mā ngā whakareanga i muri nei.

I noho te arotake nei hei whāinga hira. E rere atu ana aku mihi maioha ki te hunga katoa i whai wāhi ki te kawenga o tēnei pūrongo, tae atu ki ngā kaituku kōrero me te hunga i tūtaki nei mātou. Ko te mihi motuhake hoki ki ā mātou kaituhi manawa-ū, i tuku i te āwhina waiwai hei te roanga o te arotake: Emily Douglas, Carl Blackmun, Jo Dinsdale, Leigh Huffine, Emma McCann, Kathleen Robertson, Anna Moore-Jones, Georgia Whelan. Me te tuku i te aumihi ki ngā mahi whakapeto ngoi a ōku hoa Pae.

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report | Karere nā te Heamana ¹¹

Ka tukuna tēnei pūrongo ki a koe me te ngākaunui, me te mōhio hoki mā ngā whakapainga kua tūtohua nei e mātou e āwhina ki te whakapiki i ngā pakaritanga o tēnei pūnaha pōtitanga otirā kia whai hua ake ā ngā tau e tū mai nei. Ko te tūmanako ka whanake haere tonu te ture pōtitanga, e tutuki ai ngā hiahia o tō tātou porihanga hurihuri, e rangona ai ngā reo huhua, e kitea ai hoki te auahatanga.

Nō mātou te māringanui i whai wāhi ai ki tēnei whiriwhiri kōrero; otirā ka tukuna te rākau ki ētahi atu, ina koa ki te kāwanatanga, mā rātou e kawe.

Ngā mihi nui

Deborah Hart

Heamana, He Arotake Pōtitanga Motuhake

He Arotake Pōtitanga Motuhake

Independent Electoral Review

¹² Final Report

Final Report | Executive Summary ¹³

Executive Summary

Background

1. We were established as an independent panel in May 2022 by the Minister of Justice to review Aotearoa New Zealand’s electoral system. Our Terms of Reference cover almost everything to do with how our elections work.¹
2. We approached our task independently and with open minds. Taking a principled approach, we considered how best to achieve the objectives set for us. These objectives included how to improve the fairness, accountability, clarity, representativeness and effectiveness of our electoral system and how it can uphold te Tiriti o Waitangi / the Treaty of Waitangi (te Tiriti / the Treaty).
3. Over 2022 and 2023, we met with a wide range of New Zealanders and received more than 7,500 written submissions during two periods of consultation. We are grateful to all those who took the time to share their views with us. Alongside these submissions, we also undertook research, looked at international case studies and experience, and considered previous reports and recommendations, including from the Electoral Commission, parliament’s Justice Select Committee, and the 1986 Royal Commission on the Electoral System.
4. We have taken careful account of all these sources when developing our own views. In June 2023, we released an interim report with our draft recommendations. After considering feedback on that report, we have made several changes to our draft recommendations.
5. We present this, our final report, to the Minister of Justice.

¹ Our Terms of Reference can be found in Appendix 2. Matters specifically out of scope for this review were online voting, alternatives to the Mixed Member Proportional voting system, the retention of the Māori electorates, local government elections and broader constitutional matters like whether to have an Upper House.

¹⁴ Final Report | Executive Summary

Part 1: Foundations

The constitutional and human rights context of electoral law

6. We begin by outlining the wider constitutional arrangements and international and domestic human rights obligations within which our electoral law must operate. This context informed our approach to the review and our recommendations.
7. Aotearoa New Zealand’s constitutional arrangements provide checks and balances by one branch of the government against another. Under Aotearoa New Zealand's constitutional arrangements, members of the executive must be members of parliament. This requirement gives the executive branch a powerful influence over the workings of the parliamentary branch.
8. Aotearoa New Zealand has ratified several binding international treaties that protect human, civil, political and minority rights and is a party to international declarations. Such obligations are taken seriously by our government and international partners alike. These agreements, along with the domestic human rights law in the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990, also underpin our electoral law.

The overall design of electoral law

9. The Electoral Act 1993 needs to be thoroughly redrafted to modernise its language, structure and content to make it easier to understand, implement and keep updated. Over time, the Electoral Act has become increasingly complex and unwieldy. It specifies how things are to be done (such as using the postal service) rather than what is to be done and to what standard, making it difficult to innovate. The Electoral Act uses outdated language in some areas, such as in provisions referring to mental health and disabled people. Redrafting would be an opportunity to update the Electoral Act for the 21^st century.
10. An important feature of electoral law in Aotearoa New Zealand is the entrenched provisions. These provisions can only be changed by a majority vote in a public referendum or by a 75 per cent vote in parliament. This high bar for amendment is based on the idea that changes to core aspects of electoral law should have broad public and political support.
11. We found inconsistencies and gaps across the provisions that are currently entrenched. We recommend additional provisions should be entrenched, including the party-vote threshold, the Māori electorates, the right to vote and to stand as a candidate, and the independence of the Electoral Commission.

Final Report | Executive Summary ¹⁵

Upholding te Tiriti o Waitangi / the Treaty of Waitangi

12. The Crown is responsible for upholding its obligations under te Tiriti / the Treaty as they relate to our most fundamental democratic rights: the right to vote and contest free, fair and regular elections. The Crown must redress past breaches, actively protect Māori electoral rights, and provide equitable opportunities for Māori to take part in elections. Decades of systematic breaches by the Crown have resulted in consistently lower rates of Māori voter engagement and participation. The Crown must do better.
13. We recommend that the Electoral Act explicitly requires decision-makers (including the Electoral Commission) to give effect to te Tiriti / the Treaty and its principles when exercising all functions and powers under the Act. This requirement should also be an explicit statutory objective of the Commission. A statutory obligation will ensure the Commission has clear authority to continue its work to reach Māori voters and candidates. To provide greater transparency of this work, the Commission should be required to publish a Tiriti / Treaty policy and strategy. We recommend the Commission works with Māori to enable Māori governance over Māori electoral data, and that it is funded by government to do so.

Part 2: The voting system

Improving MMP

14. We think the way seats in parliament are allocated in elections could be fairer. Our recommended changes to the core Mixed Member Proportional (MMP) settings function as a package.
15. The current party-vote threshold of five per cent is higher than it needs to be. We recommend lowering the threshold to 3.5 per cent. Lowering the threshold will broaden representation by making it easier for new parties to enter parliament, while still allowing for the formation of stable parliaments and effective governments.
16. We recommend abolishing the one-electorate seat threshold (often referred to as the “coat-tail provision”), provided the party-vote threshold is lowered to 3.5 per cent. Currently, a party that wins an electorate is also entitled to its share of list seats based on its party vote, even if it did not meet the party-vote threshold. We think it is unfair that this rule gives voters in some electorates more say than voters in other electorates about which parties get represented in parliament.
17. An overhang seat occurs if a party wins more electorate seats than its share of the party vote would otherwise have entitled it to. When this happens, that party keeps all the electorate seats it has won, but the total number of list seats allocated to other parties is increased until the next election. This makes sure the

¹⁶ Final Report | Executive Summary

number of seats those parties has remains in proportion to their share of the nationwide vote. If the one-electorate seat threshold were removed, the number of overhang seats would be likely to increase. For that reason, if the threshold is removed, we recommend also removing these extra seats for other parties.

Instead, fewer list seats should be allocated.

18. We propose fixing the ratio of electorate to list seats at 60:40 to ensure there are enough seats to maintain parliament’s proportionality and the representation of diverse communities. The effect of this change would be that parliament would gradually increase in size over time in line with changes in our population.
19. In addition, there should always be an uneven number of seats to avoid hung parliaments, where no party or coalition of parties can form an absolute majority.

The parliamentary term and election timing

20. Parliaments last for a maximum of three years. We heard arguments for and against changing the term of parliament, which can only be done by a 75 per cent majority vote in parliament or by a majority in a public referendum. We think this is a decision for voters. It is 33 years since we last had a referendum on whether the term of parliament should be longer. It is time for another referendum, supported by an independent information campaign about the pros and cons of a longer term.
21. Currently, the prime minister can call a general election at any time within the three-year parliamentary term. In recent years, the prime minister has given plenty of notice – usually announcing the election date early in the third calendar year of parliament. This practice appears to work well, balancing the need for both flexibility and certainty, and so we do not recommend any change.

Vacancies in parliament

22. We think the grounds for when a Member of Parliament’s (MP) seat is vacated remain largely fit for purpose. However, we propose that the ground for non- attendance without leave be changed from the term of parliament to three months, and that the ground for mental incapacity be removed as it is out of date and unnecessary.
23. We recommend abolishing the “party-hopping” rules. At the moment, an MP can lose their seat if they leave, or are removed from, their party. We heard from some submitters that this reflects the central importance of parties under MMP and the accountability of MPs to their parties and the voters that support them. However, in our view, MPs have the right to freedom of expression and of association and should be able to expressly dissent from their party’s views. Removing rules would protect those rights and could act as an important check on parties.

Final Report | Executive Summary ¹⁷

24. Some submitters argued that by-elections are an expensive and unnecessary exercise. We consider that they fill an important democratic function by ensuring constituents continue to have local representation, and should be retained.

Part 3: Voters

25. The rules for who can vote and how, and the way voting is administered, are of fundamental importance to our electoral system and democracy. We have focused on how to make voting more accessible and improve voter participation.

Voter eligibility

26. The right of citizens to vote is a fundamental right, recognised and protected by international and domestic law. Any limit on that right must be reasonable and justified.
27. We recommend lowering the voting age to 16. Having reviewed the evidence, we are confident that 16-year-olds are just as capable of making informed decisions about how to vote as 18-year-olds. Lowering the voting age could also support improved participation, based on emerging research from other countries.
28. We recommend extending the time that New Zealand citizens can spend overseas without losing the right to vote, which is currently three years. People have more ways than ever before to stay connected with Aotearoa New Zealand while overseas. We think most citizens overseas would continue to be invested in and affected by government policies beyond a single electoral cycle. We recommend extending the timeframe to two electoral cycles.
29. Residents who live in Aotearoa New Zealand and have the right to stay here indefinitely can vote once they have lived here for a year. This time requirement starts from when a person first begins living here, regardless of whether they are on a temporary or resident visa at that time. We heard from submitters that they found both the current rules and our interim recommendations confusing, so we have sought to clarify these in this final report.
30. We recommend extending the time that residents for electoral purposes (that is, non-citizens entitled to remain in the country indefinitely) must live in Aotearoa New Zealand before being able to vote from one year to a full electoral cycle. We think the current timeframe is too short and creates risks. Our recommended change would ensure people will have seen and experienced an election here before they can take part in one. This required time period would still begin from when a person first begins living in the country. The amount of time that residents for electoral purposes can spend overseas without losing the right to vote should stay at 12 months.
31. In our view, all prisoners should have the right to vote. Currently, anyone serving a prison sentence of three years or more cannot vote. Given the fundamental nature

¹⁸ Final Report | Executive Summary

of the right to vote, disenfranchisement should not form part of someone’s

punishment.

Enrolling to vote

32. Currently, enrolment is compulsory but voting is not. We do not recommend changing these rules because they are generally working well.
33. Earlier this year, parliament made changes to the Māori electoral option, which gives people of Māori descent the choice of whether to enrol on the general roll or the Māori roll. Now, Māori electors can change rolls at any time except in the three months leading up to a general or local election, or once a seat has been formally declared vacant before a by-election. While this change helps to address a long- standing issue for Māori voters, we do not think it goes far enough, especially as there is evidence of voters wishing to change rolls in the three months before the 2023 general election.
34. We recommend that Māori voters should be able to switch rolls at any time up to and including election day for general and local elections, while retaining the exception for by-elections. The period just before an election is when people are most likely to be thinking about their choice of roll, and so the current law could prevent people from exercising the option exactly when they are most likely to be engaged with elections. To be as effective as possible, the greater flexibility to exercise the Māori electoral option should be accompanied by improved information and engagement.
35. Currently, people of Māori descent cannot be on different rolls for local body and general elections simultaneously. The growth of local Māori wards around the country makes this choice increasingly relevant for Māori voters. We recommend removing this administrative barrier to allow people to be on different rolls simultaneously.
36. The decline of postal services and the growth of digital enrolment services raise important policy questions about how to verify a person’s residence. While particularly relevant to elections, we consider this issue requires broader government consideration. We recommend an all-of-government approach to encourage enrolment, for example, when people are accessing other government services.

Voting in elections

37. We make recommendations to reflect changes in voter behaviour, make voting more accessible, and improve the resilience of the electoral system.
38. More people now vote before election day, known as advance voting, than on election day. However, the law has only minimal provisions for advance voting,

Final Report | Executive Summary ¹⁹

and the rules regulating electioneering on election day are much more restrictive than they are during the advance voting period.

39. We think the rules for advance voting and election day voting should be more consistent. A minimum period of 12 days should be set for in-person advance voting. We recommend changing election day restrictions on electioneering to match advance voting rules, so one set of rules applies to the whole period.
40. Other recommendations focus on accessibility. We heard from submitters that equitable access to polling places is a key factor in enabling participation, and so we propose that electoral law sets principle-based standards for polling places to ensure they are widely available and accessible. Special voting provides ways to vote for people who cannot vote in person. With postal services in decline, work is needed on what voting methods will replace postal voting to ensure ongoing access for those who need it. We recommend changes to the process for issuing ballots to address barriers for some communities.
41. We have all become acutely aware of the potential for natural disasters, pandemics or other unforeseen events to disrupt an election. Existing emergency provisions already provide for delaying an election or implementing alternative voting processes. However, they do not provide for situations where parliament has already dissolved or expired, but it may not be safe or practical to hold an election for a prolonged time. We recommend updating these provisions to include a new last-resort power to withdraw the writ for a general election in the event of a catastrophic disaster.

Counting the vote and releasing results

42. The important processes of counting the vote and releasing results are generally working well.
43. We recommend allowing the preliminary count, which is done on election night ahead of the official count, to be conducted electronically in the future. This change would enable the Electoral Commission to start long-term work towards a live digital roll mark-off, where voters are marked off the roll electronically. Digital roll mark-off would make vote issuing easier and help to reduce the administrative costs of special votes. It would allow people voting outside the electorate where they are enrolled to cast an ordinary vote instead of a special vote. Electronic scanning technology has been successfully used to count votes in previous referendums.
44. We recommend creating a legal requirement for the preliminary results to be released as soon as is reasonably practicable to formalise and future-proof the current practice.

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Improving voter participation

45. Voter participation is central to a healthy democracy. People are more likely to vote if they understand why voting is important in a democratic system. The Electoral Commission plays a crucial role in improving voter participation and educating people about the electoral system, and we support its continued work in these areas.
46. We recommend developing a funding model to support community-led initiatives for civics and citizenship education and voter participation. Community groups know best about how to reach their members, but they are not always resourced to do so. We have changed our initial view and now consider that the fund should be administered by the Electoral Commission rather than a different government agency. The Electoral Commission’s independence and political neutrality, combined with appropriate safeguards, would ensure that the funding is not used for partisan purposes.
47. We set out the barriers to participation that may be faced by different communities, and the steps being taken to address them. We recommend some changes in response to outstanding barriers, such as providing targeted information to communities about using preferred names when enrolling and voting, and enabling people on the unpublished roll to cast an ordinary vote to make voting easier for those with safety concerns.

Part 4: Parties and candidates

Standing for election

Party regulation

48. Political parties play a vital role in our electoral system. They need to be regulated because they exercise significant public power in selecting and promoting candidates at elections and can (if registered) receive state funding. However, parties must also be able to organise themselves, determine policy, select candidates, and contest elections in ways that reflect their widely differing sizes, ethos, and organisational approaches. Our recommendations balance these two considerations.
49. We think many of the current rules are working well, although we recommend ways to strengthen them to increase transparency and public confidence. The existing requirement for party members to participate in selecting both electorate and list candidates would be strengthened by allowing the Electoral Commission to refuse to register a party whose rules do not permit this to happen.
50. We recommend giving the Electoral Commission a power to audit the requirement for registered parties to have 500 current financial members who are enrolled to vote if it has reasonable grounds to believe a party is not complying. We also

Final Report | Executive Summary ²¹

recommend bringing forward the deadline for when a party must be registered to the start of the regulated period (that is, about three months before election day).

51. We recommend closing the loophole where an unregistered party can avoid disclosure requirements by becoming a component party of a registered party.

Candidates

52. All citizens who are registered electors are eligible to stand as candidates. We think this remains appropriate. We could not find any reason to depart from this alignment between voter and candidate eligibility in each of the provisions we reviewed. We concluded that if our recommendations to expand voter eligibility are accepted, then those newly eligible groups should also be able to stand as candidates. That is, 16- and 17-year-olds, prisoners, and overseas citizens who have been away from Aotearoa New Zealand for no more than two electoral cycles. Extending candidate eligibility supports representation, and ultimately voters decide who to elect.
53. We heard from some submitters that electorate candidates should only be able to contest electorates where they live, and that dual candidacy should be prevented (candidates contesting an electorate and being on a party list at the same time). In our view, these proposals would undermine the ability of parties to stand strong candidates in all electorates, and we do not recommend them.

Political finance

54. Raising money and other resources is fundamentally important to parties’ and candidates’ participation in the electoral system. Parties and candidates use money and resources for a wide range of activities, including developing policy,

communicating with the public, and campaigning. Making donations and providing loans is a form of political expression and electoral participation, allowing people to support parties and candidates of their choosing. The right to do so is protected by the New Zealand Bill of Rights Act 1990.

55. However, there are risks to electoral integrity and public confidence in the electoral system if some people are able to unduly influence parties and candidates by making donations or loans. Even the sense or perception of undue influence can undermine trust in our democratic processes.
56. Our recommended changes, as outlined below, may reduce private funding and increase compliance costs for parties. We recommend a modest increase in state funding to address these effects. Parties are central to our electoral system and supporting them in a fairer, more transparent and up-to-date way is vital.

Private funding

57. Private funding is an important source of political party finance but it also causes considerable public concern. We recommend simplifying and tightening some

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provisions in the existing private funding rules to improve public trust by increasing transparency.

58. Parties and candidates mostly rely on private donations and loans to pay for their day-to-day activities and for their election campaigns. In Aotearoa New Zealand, people have the right to support any party. While the law should enable this form of participation, it also risks enabling the exercise of undue influence through financial means.
59. We recommend that only individuals enrolled to vote should be able to make loans or donate to parties and candidates. This means that all entities, whether trusts, companies, trade unions, iwi, hapū, or unincorporated associations, would be prohibited from providing funding. They will continue to be able to participate as third-party promoters or by donating to third-party promoters.
60. Currently there are no restrictions on the amount that an individual may donate or loan to a party or candidate. We recommend introducing a cap of $30,000 per party and all its individual candidates for each election cycle. We also recommend reducing the amount of money that can be donated anonymously from $1,500 to

$500. The reduction will improve transparency while still allowing for “grass-roots” fundraising. The rarely used protected disclosure regime for larger anonymous donations should be removed.

61. We make further recommendations in response to submissions about loopholes and avoidance issues. Registered third-party promoters who are required to declare their election expenses should also be required to disclose all donations over $30,000 received from any person (whether as a single donation or multiple donations) in an electoral cycle used for election expenditure. Increased monitoring and new offences would be required to enforce new restrictions on third-party promoters. These changes are needed to limit, for example, the potential for donors to collude with parties and subvert our recommended changes to private funding.
62. Other recommendations close potential loopholes relating to membership and affiliation fees and financial disclosure by parties when applying for registration. In addition, the Electoral Act should contain a general anti-avoidance offence to strengthen the ability to enforce political finance rules.
63. Reporting and disclosure requirements should increase in frequency before elections. In an election year, we recommend requiring parties and candidates to disclose large donations (of more than $10,000 in total) at the beginning of the three months leading up to election day, and within 10 working days during that time. We have extended this timeframe for disclosure from the seven days recommended in our interim report, in response to feedback from parties about the challenge this timeframe would present. The public disclosure threshold for donations in parties’ annual returns should reduce from $5,000 to $1,000.
64. We revise our initial view and now recommend largely retaining the definition of donation in the Electoral Act. However, we propose lowering the exemption for

Final Report | Executive Summary ²³

gifts of goods and services to $500. This change aligns with our recommended anonymous donation limit.

State funding

65. To balance the effect of our private funding recommendations, we recommend a modest increase in the levels of state funding provided to registered parties.
66. The changes we recommend to private funding aim to increase transparency, reduce the risk of undue influence, and incentivise parties to seek larger numbers of small donations. These changes are likely to affect the amount parties receive privately. We recommend a mix of direct and indirect state funding to compensate. We appreciate the contentious nature of public spending on parties that individual taxpayers may not support, but parties play a vital constitutional role in our system.
67. Per-vote funding should be introduced on a sliding scale for parties that receive at least two per cent of the party vote. Although this could favour parties already in parliament, other measures we recommend will offset this effect.
68. Base funding of $15,000 each year should be made to all registered parties to support compliance with legal obligations. This funding will help smaller parties in particular to meet transparency and disclosure costs.
69. Tax credits of 33 per cent should be available to donors for political donations of up to $1,000 each year.
70. A new fund – Te Pūtea Whakangāwari Kōrero ā-Tiriti / Treaty Facilitation Fund – should be established to support party and candidate engagement with Māori communities, in ways appropriate for Māori.
71. The purpose and size of the existing Election Access Fund / Te Tomokanga – Pūtea Whakatapoko Pōtitanga should be expanded to allow parties to apply to meet the costs of providing materials to voters with accessibility needs in their campaigns.
72. Precise costings for our package of recommendations, particularly for tax credits, are difficult to provide. About $4.1 million in state funding is currently provided through the broadcasting allocation (discussed below) and suggest it should be reapplied to our funding model. In addition, Parliamentary Service funding for the parliamentary wing of parties was about $52 million in the 2023/24 financial year. As this funding can be used for activities that also have potential electoral benefits, we suggest that some of this funding should be redirected towards our recommended state funding.
73. In this final report, we recommend establishing an independent fiscal institution to provide costings of registered party policies at their request. This could help to counter misinformation and disinformation and would constitute an indirect form of state funding to all registered parties.

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Election advertising and campaigning

74. An election advertisement is generally one that encourages people to vote for or against a particular party or candidate, whether or not they are mentioned specifically. We support the current approach of applying low-level advertising restrictions all the time, such as requiring advertisements to include details of who has placed them, and increasing restrictions closer to the election.
75. We recommend that a total prohibition on election day advertising should only apply inside or within 10 metres of polling places, which is the approach that currently applies during advance voting.

Media-specific regulation of advertising

76. The media landscape has changed significantly, meaning that the existing controls on the broadcast media are no longer fit for purpose. The specific rules that apply to broadcasting party and candidate advertisements on television and radio should be removed, along with the current state funding for such advertising provided through the broadcasting allocation. Instead, parties and candidates should be free to advertise on television and radio as they wish, up to their campaign spending limits.
77. Online advertising, including its targeted (and microtargeted) nature, is a fast- moving and complex area and is used increasingly by parties. Although some protections are in place, we recommend broader government consideration of whether they are sufficient.

Campaign spending limits and disclosure requirements

78. Advertising spending limits for all electoral participants apply in the three months before election day.
79. We recommend setting a flat spending limit for parties at a level similar to the actual amounts the two largest parties spent at the 2020 election. From there, we recommend that spending limits for candidates and third-party promoters should be set as a proportion of the spending cap for parties. Our recommended changes to spending limits, subject to adjustment for inflation and other factors that may have arisen since 2020, are:
    • setting a flat spending limit of $3.5 million for all parties
    • setting the limit for candidates at one per cent of the spending limit for parties for general elections and at two per cent for by-elections (instead of setting a dollar amount)
    • setting the limit for third-party promoters at 10 per cent of the party limit.
80. We note that our proposed spending limits would need to be adjusted at the time of enactment to take account of the impact of inflation and other factors since 2020.

Final Report | Executive Summary ²⁵

81. We do not recommend changing current disclosure requirements, including that election expense returns are filed after the election.

Part 5: Electoral administration

Electoral Commission

82. The Electoral Commission generally delivers well-run elections with high levels of integrity. It also supports and encourages people to take part in elections, including by working directly with communities with lower participation rates. We think it is important the Commission focuses on understanding and addressing the barriers for these communities. Therefore, we recommend amending the requirement for the Commission to facilitate participation to a requirement to facilitate equitable participation.
83. The Electoral Commission board should be expanded from three to five members. The Minister of Justice should be required to ensure that the board collectively has skills, experience and expertise in te Tiriti / the Treaty, te ao Māori, and tikanga Māori. To this end, we recommend that the Minister of Justice should have to seek nominations for the Electoral Commission board from iwi and Māori representative organisations.
84. Our recommendations about the Electoral Commission work together with our recommendations that decision-makers give effect to te Tiriti / the Treaty, that the Commission has a Tiriti / Treaty strategy, and that it prioritises establishing Māori governance over Māori data.

Accessing the electoral rolls

85. Accurate and up-to-date electoral rolls are critical to administering elections and to the system’s integrity. As well as having a central role in the electoral system, electoral roll data is accessed for other purposes, such as research and preparing jury lists, and by political parties wanting to canvass voters before elections. The rolls contain personal identifiable information such as names, addresses and occupations.
86. The need to strongly protect personal data has become more critical now that technology can be used to data-match and target people. We consider electoral roll data should be more stringently controlled by amending the Electoral Act to be more consistent with the requirements of the Privacy Act 2020.
87. Public inspection and purchase of electoral rolls should end, as should access to information about who has voted, although access should remain for undertaking election petitions and enrolment objections. Historical electoral rolls should be available publicly after 50 years for private research.

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88. Access to roll data should continue for research relating to social science, health, and electoral participation. However, there should be tighter controls on data access and use, including a stronger approval process before researchers can access data. Electoral researchers should be provided with specific access to de- identified master roll information for research directly related to voter turnout, subject to the same approval process.
89. We have revised our initial view about party, MP and candidate access to roll data. We now consider they should continue to have access to roll data, but for specified, limited purposes, including election campaigning and communicating with constituents about parliamentary business. There should also be tighter controls on the use and retention of information by parties, MPs and candidates. The ability for scrutineers to access records of votes cast during the voting period, and to share this information with political parties and candidates, should end.

Boundary reviews and membership of the Representation Commission

90. The boundary review process is conducted by the Representation Commission and determines how the country is divided into electorates. We recommend that Stats NZ is given flexibility on the data sources it uses to calculate electoral populations, such as using the estimated resident population, instead of being required to use the census. However, other data sources should only be used once improved processes to ensure their robustness are in place, including around determining the Māori descent population. We recommend boundary reviews continue to take place every five years.
91. To stabilise electorate boundaries, we recommend increasing how much an electorate’s population size can depart from the average size (known as the population quota tolerance) from plus or minus five per cent to plus or minus 10 per cent.
92. Currently, when the Representation Commission sets Māori electorate boundaries, it has to take into account Māori communities of interest. We recommend the Commission should have to consider Māori communities of interest alongside general communities of interest when it sets general electorate boundaries too.
93. The Representation Commission includes a chairperson, two members appointed by parliament (one representing the government and one the opposition) and four government officials. When determining Māori electorate boundaries, the Commission also includes the chief executive of Te Puni Kōkiri and two people of Māori descent (representing the government and the opposition). We recommend these members are also members when general electorate boundaries are being considered.

Final Report | Executive Summary ²⁷

Electoral offences, enforcement and dispute resolution

94. Electoral offences need a thorough overhaul and consolidation. The offences in the Electoral Act are all criminal and have been added and amended over time, with some carried over from earlier electoral laws. As a result, some offences and penalties are out of date, and there are inconsistencies in the treatment of various behaviours.
95. The offence of “treating” voters with food, beverage and entertainment before elections should be repealed, and a judge should have an express discretion to restore voting rights to someone placed on the Corrupt Practices List. We recommend a new offence of intentionally obstructing, undermining or interfering with an election official’s work conducting elections. This offence will protect election officials and future-proof the Electoral Act. Further work should be done on whether a similar offence should be created for harassing candidates.
96. Currently, parties cannot be held directly liable for breaches of electoral law, and individual party secretaries are liable for offences such as breaking election finance or advertising rules. We think the question of whether parties should be liable, particularly for systemic breaches of donation and expenditure rules, merits a closer look as part of the overhaul of offences.
97. We recommend giving the Electoral Commission more investigative powers, such as requiring documents and undertaking audits, as well as the ability to refer serious financial offending directly to the Serious Fraud Office. The threshold for referral should align with the Serious Fraud Office’s jurisdiction.
98. The Electoral Commission currently has no ability to prosecute offences (all enforcement actions are taken by the Police and the Serious Fraud Office). As part of the overhaul of all offences, the ability of the Commission to impose low-level sanctions for the breach of some electoral laws should be considered.
99. The Electoral Act contains mechanisms for resolving disputes about election outcomes through election recounts and election petitions. In our interim report, we recommended that judges should have the discretion to decide whether a recount goes ahead. In response to feedback that this could lead to delays, we no longer make this recommendation. Consequently, the deposit fees required to apply for a recount should be retained at their current amounts.

Security and resilience

Managing the risks of disinformation

100. The spread of disinformation (false information intentionally spread to mislead or influence people), especially online, can undermine the integrity of the electoral system and distort free and open debate. While it is of particular importance to the electoral system, the issue is far broader than the electoral system. We are concerned about the risk that disinformation presents to the security and

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resilience of the electoral system and to voter participation. Upholding rights to freedom of expression and freedom of association are also important.

101. We recommend extending the timeframe for the offence of knowingly publishing false information to influence voters, so that it covers the entire advance voting period.
102. Internationally, finding ways to regulate disinformation is a developing area. In Aotearoa New Zealand, ways to address it are being considered by social media companies and the government. The outcome of that work will impact on the electoral system. In the meantime, education and community engagement are the best tools we have.

Foreign interference

103. Efforts by other countries to influence, disrupt or subvert our national interest present a risk to our electoral system. The New Zealand Security Intelligence Service did not identify systemic, state-sponsored interference activity in the 2020 election but it did confirm a small number of states engage in interference activities against Aotearoa New Zealand’s interests. However, electoral interference remains a key area of its focus, due to the prevalence of interference in elections around the world. The New Zealand Security Intelligence Service has confirmed a small number of states engage in interference activity against our national interest, including by targeting our political sector.
104. Our current law contains several safeguards, and the Electoral Commission works with our security agencies to identify potential foreign interference. We recommend addressing an existing vulnerability in our system by preventing registered third-party promoters using money from overseas persons to fund election advertising in the three months before an election. We also recommend amending the definition of overseas person to close potential loopholes.

Final Report | Recommendations ²⁹

Recommendations

Part 1: Foundations

Chapter 2: The Overall Design of Electoral Law

R1. Redrafting the Electoral Act 1993 to incorporate the changes set out in this report and to update the statute’s structure and language with the aim of making it modern, comprehensive and accessible.

R2. Reassessing the appropriate use of primary and secondary legislation in electoral law as part of redrafting the Electoral Act.

R3. Adding to the currently entrenched provisions by entrenching:

1. the allocation of seats in parliament and the party vote threshold

2. the Māori electorates

100. the right to vote

4. the right to stand as a candidate

5. the independence of the Electoral Commission, including the process for removing its members

6. the process for the report of the Representation Commission on electoral boundaries to take legal effect.

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Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi

R4. Requiring decision-makers to give effect to te Tiriti o Waitangi / the Treaty of Waitangi and its principles when exercising functions and powers under the Electoral Act. This obligation should apply generally across the Act and be explicitly included in the Electoral Commission’s statutory objectives.

R5. Requiring the Electoral Commission to publish a Tiriti / Treaty policy and strategy and report on progress as part of its statutory obligation to publish a post-election report.

R6. The Electoral Commission prioritises establishing Māori governance over data collected about Māori in the administration of the electoral system, and is funded by government to do so.

Part 2: The Voting System

Chapter 4: Representation Under MMP

R7. Lowering the party vote threshold for list seat eligibility from five per cent of the nationwide party vote to 3.5 per cent.

R8. Abolishing the one-electorate seat threshold, provided the party vote threshold is lowered to 3.5 per cent.

R9. Removing the existing provision for extra seats to compensate for overhang seats, in line with our other recommendation to abolish the one- electorate seat threshold, which would result in fewer list seats being allocated.

R10. Fixing the ratio of electorate seats to list seats at 60:40, requiring parliament to be an uneven number, and allowing the size of parliament to grow in line with the population.

Final Report | Recommendations ³¹

Chapter 5: Parliamentary Term and Election Timing

R11. Holding a referendum on the parliamentary term, supported by a well- resourced information campaign (including dedicated engagement with Māori as Tiriti o Waitangi / Treaty of Waitangi partners).

R12. Continuing to allow the prime minister to call a general election at any time before the end of the parliamentary term.

Chapter 6: Vacancies in Parliament

R13. Updating the ground for non-attendance so that the seat of any Member of Parliament becomes vacant if they are absent from parliament for three months without permission.

R14. Repealing mental incapacity as a ground to remove a Member of Parliament.

R15. Retaining the remaining grounds for when a Member of Parliament vacates their seat, including the ground of citizenship.

R16. Amending the ground for criminal conviction to make clear that a vacancy arises upon conviction.

R17. Repealing the restriction on Members of Parliament remaining in parliament if they cease to be a member of the party from which they were elected.

R18. Retaining the current rules for filling vacant electorate seats and list seats, including the processes for a seat that is vacated within six months of a general election.

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Part 3: Voters

Chapter 7: Voter Eligibility

R19. Lowering the voting age to 16.

R20. Extending the time that New Zealand citizens can spend overseas without losing the right to vote to six years (or eight years if the term of parliament is extended).

R21. Replacing the use of the term “permanent resident” in the Electoral Act with “resident for electoral purposes” to avoid confusion with the Immigration Act 2009.

R22. Keeping the time that residents for electoral purposes can spend overseas without losing the right to vote at 12 months.

R23. Extending the time that residents for electoral purposes must spend in Aotearoa New Zealand before gaining the right to vote to three years (or four years if the term of parliament is extended).

R24. Granting all prisoners the right to vote.

Chapter 8: Enrolling to Vote

R25. Retaining compulsory enrolment. R26. Retaining voluntary voting.

R27. Allowing the Māori electoral option to be exercised at any time up to and including election day for general and local elections, while retaining the current prohibition ahead of by-elections.

R28. Allowing anyone of Māori descent to be registered simultaneously on one

roll for general elections and a different roll for local elections.

R29. Improving education and engagement about the Māori electoral option.

R30. Adopting an all-of-government approach to encourage and support people to enrol, including when accessing other government services.

Final Report | Recommendations ³³

Chapter 9: Voting in Elections

R31. Requiring advance voting to be provided for a minimum period of 12 days.

R32. Including standards in electoral law for polling places to ensure they are widely available and accessible, including during advance voting.

R33. Future-proofing special voting provisions by:

1. clarifying that anyone voting outside their electorate can cast a special vote at any time during the voting period
2. monitoring whether postal voting remains a viable option for overseas voters
3. considering how to scale up voting methods for people who cannot vote in person as postal services decline.

R34. Removing the election day restrictions on trying to influence voters so that the rules that currently apply during the advance voting period apply throughout the entire election period.

R35. Aligning restrictions on election day with those of the current advance voting period for the wearing of lapel badges, rosettes and party colours in polling places and within 10 metres of their entrances.

R36. Prohibiting voters from taking photos of their ballot papers in polling places.

R37. Repealing the requirement to verbally state your name to be issued a ballot.

R38. Repealing the ability of scrutineers to require voters to be questioned about their identity and whether they have already voted before they are issued a ballot.

R39. Vesting emergency powers in the board of the Electoral Commission, not just in the chief electoral officer.

R40. Adding a new general power for the Electoral Commission to extend the time available for any electoral processes or deadlines where they are impacted by an unforeseen or unavoidable disruption that could impact the proper conduct of an election.

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R41. Adding a new power that, subject to appropriate consultation:

1. permits the governor-general, acting on the advice of the prime minister, to withdraw the writ issue for a general election where a national state of emergency will significantly interfere with the proper conduct of the election
2. requires the prime minister, as soon as it is reasonably practicable after the withdrawal of the writ, to advise the governor-general of the earliest available date where the general election could be properly conducted (but no later than the day three months after the withdrawal of the writ).

R42. The government works with all parliamentary parties to consider the merits of a new statutory power to reconvene parliament.

R43. Amending the Constitution Act 1986 to ensure the continuity of executive government in the event of an adjourned election.

R44. Amending the Cabinet Manual so that the caretaker convention applies (as if the election result was unclear) in circumstances where an election is delayed under the emergency powers in the Electoral Act.

Chapter 10: Counting the Vote and Releasing Results

R45. Enabling the preliminary count to be conducted electronically.

R46. Requiring the release of the preliminary results as soon as reasonably practicable in legislation, while retaining a level of flexibility for emergency situations.

R47. Allowing a person’s vote to be counted if they have voted in advance and

die before election day.

Final Report | Recommendations ³⁵

Chapter 11: Improving Voter Participation

R48. Developing a funding model to support community-led education and participation initiatives, with this model also providing for by Māori for Māori activities.

R49. Providing targeted information about the use of preferred names for enrolment and voting purposes to relevant communities.

R50. Allowing people on the unpublished roll to cast an ordinary vote, subject to the development of a unique identifier for inclusion in the electoral rolls that meets privacy requirements without disclosing a voter’s address.

Part 4: Parties and Candidates

Chapter 12: Standing for Election

R51. Providing the Electoral Commission with the power to either refuse to register, or to de-register, a party:

1. whose rules do not meet the existing statutory requirement to provide for member participation, including through delegates, in the selection of candidates, but only after

2. the party has been notified and given an opportunity to amend its rules to comply with its statutory obligations.

R52. Requiring parties to supply their party membership and candidate selection rules to the Electoral Commission when applying to register.

R53. Requiring a registered party to submit a list of party candidates at each general election to remain registered.

R54. Strengthening the current requirement that a party has 500 current financial members before it is eligible to register by:

1. requiring those 500 members to be enrolled to vote

2. enabling the Electoral Commission to audit any registered party for compliance with this ongoing requirement if it has reasonable grounds to believe that the party is not complying, and

³⁶ Final Report | Recommendations

100. providing for offences for obstructing or failing to provide information to the Electoral Commission in a timely manner when it is conducting an audit under recommendation 54(b).

R55. Requiring a party secretary to confirm by statutory declaration that the process for ranking list candidates complied with the party’s candidate selection rules.

R56. Extending the period before an election in which parties cannot be registered to the start of the regulated period (usually three months before election day).

R57. Prohibiting unregistered parties from becoming component parties of registered parties.

R58. Broadening candidate eligibility, in line with our voter eligibility recommendations, to include:

1. 16- to 17-year-olds

2. citizens living overseas for two electoral cycles

100. all prisoners.

R59. Updating the candidate definition of public servant in the Electoral Act to align with the Public Service Act 2020.

Chapter 13: Political Finance

R60. Permitting only registered electors to make donations and loans to political parties and candidates.

R61. Treating spending on election advertisements that requires authorisation from a political party or candidate as a donation.

R62. Limiting the total amount a registered elector may give by way of donations and loans to each political party and its candidates to $30,000 per electoral cycle.

R63. Reducing the amount that can be donated anonymously to $500. R64. Abolishing the protected disclosure regime.

Final Report | Recommendations ³⁷

R65. Amending the minimum reasonable market value threshold for the donation of goods and services so that any good or service provided free of charge, or at a discount, with a reasonable market value of $500 or less is not a donation.

R66. Requiring:

1. at the beginning of the regulated period, political parties and candidates to disclose donations and loans above $10,000 (but below

$20,000) made during an election year

2. during the regulated period, political parties and candidates to disclose donations and loans above $10,000 within 10 working days.

R67. Requiring the disclosure of all donors and lenders who give more than

$1,000 in a year to a political party or candidate, but only requiring their names and electorates to be made public.

R68. Requiring registered third-party promoters to have a separate election campaign bank account for campaign donations and election expenses.

R69. Requiring registered third-party promoters to keep records of election campaign donations.

R70. Requiring registered third-party promoters that spend more than $100,000 on election expenditure during the regulated period to also disclose donors who donate over $30,000 in total during an electoral cycle, if the donation has been used for election expenditure.

R71. Increasing monitoring powers for the Electoral Commission and offence provisions in the Electoral Act, including restricting collusion between third-party promoters and political parties.

R72. Introducing a maximum political party annual membership and affiliation fee of $50 per member, or member equivalent.

R73. Requiring political parties to disclose assets and liabilities when applying for registration.

R74. Including a general anti-avoidance offence provision relating to political finance rules in the Electoral Act.

R75. Increasing state funding by:

a. providing registered political parties with per-vote funding on a sliding scale

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2. providing registered political parties with base funding of $15,000 per year

100. providing tax credits for people who make donations of up to $1,000 per year

4. establishing a new fund – Te Pūtea Whakangāwari Kōrero ā-Tiriti / Treaty Facilitation Fund – to facilitate political party and candidate engagement with Māori communities

5. expanding the purpose of the Election Access Fund to include applications by political parties to meet accessibility needs in their campaigns

6. establishing an independent fiscal institution to provide costings of registered political party policies at their request.

Chapter 14: Election Advertising and Campaigning

R76. Permitting election advertising on election day anywhere except inside or within 10 metres of polling places (where voters and scrutineers may only display lapel badges, rosettes, and party colours on their person).

R77. Allowing promoter statements for candidate advertisements to use PO Box numbers or email addresses instead of physical addresses.

R78. Abolishing the restrictions on the use of television and radio for election advertising by parties and candidates.

R79. Abolishing the process for providing funding to parties to run election advertisements on television and radio, and reallocating the funding to our package of state funding recommendations.

R80. Providing the Advertising Standards Authority with funding during election periods to support its ability to respond to complaints in a timely way.

R81. Broader consideration and monitoring by government of whether the laws regulating the use of microtargeting for online advertising are sufficient, including for safeguarding trust in elections.

Final Report | Recommendations ³⁹

R82. Adopting spending limits during the regulated period based on the sums below, after adjustments are made to allow for increases in inflation and other factors since 2020:

1. registered parties: $3.5 million

2. candidates: one per cent of the registered party spending limit for a general election ($35,000 at present) and two per cent for a by- election ($70,000 at present)

100. third-party promoters: 10 per cent of the registered party spending limit ($350,000 at present).

Part 5: Electoral Administration

Chapter 15: Electoral Commission

R83. Amending the objective of the Electoral Commission to facilitate equitable participation.

R84. Expanding membership of the board of the Electoral Commission from three to five members.

R85. Requiring the board of the Electoral Commission to have a balance of skills, knowledge, attributes, experience and expertise in te Tiriti o Waitangi / the Treaty of Waitangi, te ao Māori, and tikanga Māori.

R86. Requiring the Minister of Justice to seek nominations for appointments to the Electoral Commission board from iwi and Māori representative organisations before a recommendation is made to the House of Representatives.

Chapter 16: Accessing the Electoral Rolls

R87. Removing the availability of the main and supplementary rolls for public inspection, except for the purpose of making an electoral petition or an objection to a registered elector’s enrolment.

⁴⁰ Final Report | Recommendations

R88. Removing the availability of the master roll for public inspection after an election, but retaining access after an election for the purposes of making an electoral petition.

R89. Removing the ability for any person to purchase electoral rolls and habitation indexes.

R90. Making historical electoral rolls publicly accessible for the purpose of research after a period of 50 years, as is the case for births, deaths and marriages records.

R91. Retaining access to electoral rolls and habitation indexes for scientific, human health and electoral participation research, but with tighter controls on data access and use, and a stronger approval process (including ethics approval) that requires researchers to:

1. provide reasons why there is not a reasonable or practical alternative data source to the electoral rolls

2. demonstrate that they have systems, policies, and procedures in place to look after any electoral roll data securely

100. destroy electoral roll data at the end of research projects.

R92. Ensuring that the controls and approval process for researcher access to electoral rolls and habitation indexes:

1. is co-designed with Māori and grounded in the Māori data governance model published by Te Kāhui Raraunga

2. builds in Māori oversight and participation.

R93. Allowing electoral researchers specific access to de-identified master roll information for research directly related to voter turnout, subject to the tighter controls and approval process set out in recommendation 91.

R94. Allowing Members of Parliament, candidates and parties to have access to electoral rolls for specified, limited purposes, and with controls on use and retention of information, including that:

a. Members of Parliament can access information for the purpose of communicating with constituents about parliamentary business. Data must be destroyed when they cease to be a Member of Parliament, and the data cannot be combined with any other information.

Final Report | Recommendations ⁴¹

2. Electorate candidates can access information for the purpose of election campaigning. Data must be destroyed after the election, and the data cannot be combined with any other information.

100. Registered parties can have ongoing access to electoral roll information for the purpose of election campaigning. Information must be destroyed if a party is de-registered, and the data cannot be combined with any other information.

R95. Removing the ability for scrutineers to access records of votes cast during the voting period and to share this information with political parties and candidates.

R96. Retaining the existing provisions for being enrolled on the unpublished roll.

R97. The Electoral Commission better publicise the unpublished roll and ensure flexibility in its administration, particularly for the evidence required to prove eligibility.

Chapter 17: Boundary Reviews and the Representation Commission

R98. Removing the requirement that the boundary review is based on census data, so that other data sources could be used once improved processes are in place to ensure:

1. the transparency, robustness, and independent review of those data sources

2. Māori data governance and a more robust and transparent calculation of the population of Māori descent.

R99. Increasing the population quota tolerance (that is, the extent to which it can vary from the average population in an electorate) to plus or minus 10 per cent when setting electorate boundaries.

R100. Considering Māori communities of interest alongside general communities of interest in the setting of general electorates as well as for setting the Māori electorates.

R101. Retaining the five-year frequency of boundary reviews.

R102. Retaining the current membership of the Representation Commission.

⁴² Final Report | Recommendations

R103. Adding the current Māori members of the Representation Commission – the chief executive of Te Puni Kōkiri and the two political representatives of Māori descent – as members for determining general electorate boundaries.

Chapter 18: Electoral Offences, Enforcement and Dispute Resolution

R104. Undertaking an overhaul and consolidation of all electoral offences and penalties, to ensure they are consistent and still fit for purpose. This work should be guided by the principles of proportionality, effectiveness and practicality.

R105. Giving judges an express discretion to restore voting rights for people found guilty of a corrupt practice.

R106. Repealing the offence of treating voters with food, drink or entertainment before, during or after an election for the purpose of influencing a person to vote or refrain from voting. Also repealing the offence of corruptly accepting food, drink or entertainment under these conditions.

R107. Making it a criminal offence to intentionally obstruct, undermine or interfere with the work of an electoral official in conducting elections.

R108. Giving the Electoral Commission additional investigative powers (including to require documents and to undertake audits).

R109. Giving the Electoral Commission the ability to refer serious financial offending directly to the Serious Fraud Office. The threshold for referral should include instances where the Electoral Commission suspects a serious or complex fraud that falls below a belief that a criminal offence has occurred, to align it with the Serious Fraud Office threshold.

R110. Considering whether the Electoral Commission should be able to impose sanctions for low-level electoral breaches, as part of a broader overhaul and consolidation of electoral offences.

R111. Retaining the deposits for recounts at the current amounts.

R112. Retaining the existing provisions for electorate-level or national-level recounts.

Final Report | Recommendations ⁴³

R113. Retaining existing notice periods for initiating an election petition and commencing the hearing for that petition.

Chapter 19: Security and Resilience

R114. Extending the timeframe for the offence of knowingly publishing false information to influence voters to include the entire advance voting period and election day.

R115. That the overhaul and consolidation of the offences and penalties regime for electoral law specifically considers the scope of the undue influence offence, and whether it should be expanded to include disinformation methods and mechanisms.

R116. Prohibiting registered third-party promoters from using money from overseas persons to fund electoral advertising during the regulated period.

R117. Amending the overseas person definition to close potential loopholes.

Minor and technical recommendations

Appendix 1 set out the minor and technical changes we recommend for each part of our final report.

⁴⁴ Final Report

Final Report | Introduction ⁴⁵

Introduction

Why do elections matter?

Elections determine who has the power to govern the country and make its laws. The government is formed of Members of Parliament (MPs) from a political party (or group of parties) that can win key votes in parliament. The government (through ministers and cabinet) proposes changes to the law and is in charge of ministries and departments that implement the law.

Therefore, regular, free, and fair elections are important. They are fundamental to the success of Aotearoa New Zealand’s democracy.

Our task

Electoral law helps keep our elections fair and accessible, allowing us to participate in choosing who will govern the country and for political parties to compete for our votes. These laws apply to voters, parties, candidates, the media, advocacy groups, and officials including the Electoral Commission (the independent body that administers elections).

The laws governing our elections are quite complex and many of them have not been properly considered or updated for many years. The Minister of Justice asked us to review these laws to see what is working and what could be improved. We have specifically been asked to consider whether the laws for our electoral system:

• are fair
• are clear and consistent
• are practicable and enduring
• encourage electoral participation
• uphold te Tiriti o Waitangi / the Treaty of Waitangi
• are open and accountable
• produce a representative parliament
• produce an effective parliament and government.

⁴⁶ Final Report | Introduction

Our brief is wide: we were required to review almost everything to do with how our elections work. A copy of the Terms of Reference for the review can be found in Appendix 2.

The review was set up to be independent from the Minister and the government. We have been asked to consider the issues, seek public feedback, and make recommendations we think best for the electoral system as a whole.

• Associate Professor Lara Greaves
• Alice Mander
• Robert Peden
• Deborah Hart (chair)
• Professor Maria Bargh (deputy chair)
• Professor Andrew Geddis

Independent Electoral Review Panel

The Minister of Justice appointed the Independent Electoral Review Panel in May 2022:

Some issues are out of scope

We have not been asked to look at broader constitutional matters. Matters specifically out of scope for this review are alternatives to the Mixed Member Proportional (MMP) voting system, the retention of Māori electorate seats, re-establishing an Upper House, the role and functions of the Head of State, and the current size of parliament. Online voting is also out of scope.

Our approach

We approached our task independently and with open minds. Taking a principled approach, we have considered throughout this review how best to achieve the objectives set for us, including how to improve the fairness, accountability, clarity, representativeness and effectiveness of our electoral system and how it can uphold te Tiriti o Waitangi / the Treaty of Waitangi.

It was also important for us to hear from as many New Zealanders as possible to understand their views. As required by our Terms of Reference, over 2022 and 2023 we conducted two phases of engagement with the public, Māori, political parties, and other interested organisations and people. We provide more detail about our two consultations below.

Alongside the feedback we received during consultation, we also undertook research, looked at international models and experience, and considered previous reports and recommendations including those from the Electoral Commission, parliament’s Justice Select Committee, and the 1986 Royal Commission on the Electoral System.

Final Report | Introduction ⁴⁷

Our first consultation

We released a consultation document in September 2022. It outlined our current electoral law and practice and asked a series of deliberately high-level questions. We wanted to find out what was most important to New Zealanders and what people thought, before we started our deliberations.

During this first stage of engagement, which ended in November 2022, we received over 1,700 written submissions. These submissions included:

• more than 1,300 responses to our online survey
• more than 400 submissions by email.

We were fortunate to receive thoughtful and detailed views from many informed participants, including those of political parties.

We also held 58 meetings during which we met with 51 organisations and 32 individuals. We heard from 43 submitters at public meetings held online and in person in Auckland, Wellington, and Christchurch. In addition, we met all the political parties represented in the 53^rd Parliament, alongside a number of other registered political parties.

In partnership with National Iwi Chairs Forum Pou Tikanga, 10 community workshops with

Māori were run, using a mix of kanohi ki te kanohi (in-person) and online hui.

We published a summary of the submissions we received during our first consultation in March 2023.¹

Our online forms

During our two consultations, we used an online form as a channel to gather views from as many people as possible. We wanted to ensure that we had not missed any observations or innovations, any reasons for change, or reasons for keeping things the same. The online forms covered issues and recommendations at a high level.

We wanted to use a format that would encourage responses from anyone wanting to have a say. We note that with these online forms, we were aiming to receive a diverse range of views, rather than a representative set of New Zealanders’ views, which would require scientifically sampled opinion polling or similar research.²

¹ Independent Electoral Review, 2023. Summary of Submissions: Stage 1 Engagement. Wellington: New Zealand.

² However, we note that many electoral topics are detailed and technical, requiring background information and lengthy explanations, making them unsuitable for opinion polls.

⁴⁸ Final Report | Introduction

Our interim report and second consultation

We released our interim report and began our second consultation on 6 June 2023.³

The report contained an initial 123 draft recommendations on how to make Aotearoa New

Zealand’s democracy clearer, fairer and fit for the challenges of the 21st century.

The interim report allowed the public to see the detail of what we were proposing and why. In this way, we were able to get detailed feedback on our draft recommendations and to test them with people holding differing viewpoints.

Consultation on our interim report ran from 6 June to 17 July 2023. During that time, we:

• held around 30 meetings with more than 50 individuals and organisations, including political parties, the Electoral Commission, academics, regulators, and a range of community organisations
• hosted three public webinars
• convened a wānanga with key Māori stakeholders in partnership with National Iwi Chairs Forum Pou Tikanga (who also facilitated a series of community hui on our behalf)
• received over 5,500 submissions, including around 100 detailed submissions from stakeholders

Taking the consultation feedback on board, we were able to refine and amend our recommendations, and finalise our report.

Our final report

This report documents our final view on the areas in scope of this review. It discusses our electoral system in five parts:

• Part 1: Foundations
• Part 2: The Voting System
• Part 3: Voters
• Part 4: Parties and Candidates
• Part 5: Electoral Administration.

³ Independent Electoral Review, 2023. Interim Report: Our Draft Recommends for a Fairer, Clearer, and More Accessible Electoral System. Wellington: New Zealand.

Final Report | Introduction ⁴⁹

We make 143 recommendations. All of these recommendations should be read in the context of three foundations of our electoral system that we discuss first, namely:

• the constitutional and human rights context of electoral law (Chapter 1)
• the overall design of our electoral law (Chapter 2)
• upholding te Tiriti o Waitangi / the Treaty of Waitangi (Chapter 3).

While this report is based on our interim report, it is a standalone document that can be read by itself. Where we have altered our recommendations as a result of feedback from consultation, or have maintained our view, we explain our reasons for doing so. In response to feedback, we also provide additional explanation or evidence in places to help readers understand the rationale for our recommendations.

We note that this report was being finalised during the 2023 general election. Where possible, we incorporated any information that was available about turnout and results from the election into relevant parts of the report. However, that information came too late to be part of our consideration of the issues before us.

This final report builds on what we heard from New Zealanders during both of our consultations, supplemented by further research. We carefully considered all views and information presented to us. We also drew on the knowledge and expertise held by the Panel and debated some recommendations at length, ultimately reaching decisions by consensus. Our recommendations reflect our collective conclusions about what would be best for Aotearoa New Zealand’s electoral system. We believe that, combined, they will make our electoral system clearer, fairer and more accessible so that as many people as possible can take part in it.

Classification of submissions

When we refer to submitters in this report, the classifications below have been used to quantify the views of submitters who commented on a particular recommendation, question, or topic. As explained above, the aim of our consultation was to get a diverse range of views and reasoning, not a statistically representative sample of New Zealanders’ views.

⁵⁰ Final Report | Introduction

PART 1

Foundations

This part covers:

• the constitutional and human rights context of electoral law (Chapter 1)
• the overall design of electoral law (Chapter 2)
• upholding te Tiriti o Waitangi / the Treaty of Waitangi

(Chapter 3)

⁵² Final Report

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law ⁵³

1. The Constitutional and Human Rights Context of Electoral Law

• 1.1 Electoral law has a fundamental role in the organisation of society. It sets the rules for representative democracy, including how we establish parliaments and governments.
• 1.2 However, electoral law is just one part of a wider democratic system. Democracy is the fundamental principle that underlies all aspects of Aotearoa New Zealand's constitution.¹
• 1.3 In this chapter we outline the features of our constitution, including Aotearoa New Zealand’s human rights obligations – both in domestic and international law. We explain why the constitution and human rights law matter when thinking about electoral law. These constitutional features and human rights obligations underpin the considerations and recommendations throughout this report.

Electoral law exists within a constitutional context

• 1.4 A country’s constitution determines who exercises public power and how they may do so. The constitution establishes the major institutions of government, identifies their principal powers, and regulates the exercise of those powers.²
• 1.5 Unlike some other countries, Aotearoa New Zealand does not have a single constitutional document (or “written constitution”) although many constitutional arrangements have been written into law, including in the Electoral Act 1993. In this section, we discuss the constitutional components that are the most important to our review.³

¹ Keith, K., 2023. On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government. In: Cabinet Manual 2023. Wellington: Cabinet Office, Department of the Prime Minister and Cabinet, p. 3.

² Ibid, p. 7.

³ Although we focus on the main components, we acknowledge other statutes with key constitutional elements including the Public Service Act 2020, and Acts establishing the courts, the Ombudsmen Act 1975, the Official Information Act 1982, the Magna Carta 1297 and the Bill of Rights

⁵⁴ Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law

Constitutional documents

• 1.6 Te Tiriti o Waitangi / the Treaty of Waitangi (te Tiriti / the Treaty),⁴ signed initially on 6 February 1840, is considered a founding constitutional document because it created a framework for Māori and the British Crown to govern. In this report, consistent with our Terms of Reference, we refer to te Tiriti / the Treaty to acknowledge there are two versions of this agreement: one is the Treaty (the English language version); the other is te Tiriti (the Māori language version). We discuss te Tiriti / the Treaty in more detail in Chapter 3, both because of its foundational constitutional status, and to explain the impact of various electoral laws on rights under te Tiriti / the Treaty. We also consider a wide range of historical and current issues for Māori within the electoral system, including the experiences of Māori as voters, candidates and Members of Parliament (MPs). In addition, we consider different ways an electoral system could be based on te Tiriti / the Treaty.
• 1.7 Secondly, a number of constitutional arrangements are found in the Constitution Act 1986. This statute sets out the branches of government – the sovereign (the King, represented by the governor-general), the executive (generally government ministers), the parliament (the House of Representatives and the governor- general) and the judiciary. The Constitution Act provides that MPs are elected in accordance with the Electoral Act.⁵ We discuss this in more detail in The three branches of government, below.
• 1.8 In a democracy, constitutions provide checks and balances by one branch against another, to avoid abusive or excessive use of power. Aotearoa New Zealand is notable for having fewer legal and institutional checks and balances between its branches of government than some other democracies have. For example, in Aotearoa New Zealand we have one House of parliament, compared with other systems that have an upper and a lower House. As we explain later in this chapter in The three branches of government, parliament is supreme, and the executive branch of government is drawn from it.
• 1.9 Some fundamental principles that guide Aotearoa New Zealand’s democracy are found in the Constitution Act 1986; for example, that the judiciary is independent from the other branches. However, the Constitution Act does not contain a full statement of how our institutions of government are to relate to each other.

1688. The New Zealand Bill of Rights Act 1990 is of central importance, and we discuss this statute further, in Domestic human rights, below. Decisions of the courts, known as common law, are also of constitutional relevance, and we note a number of key judgments in our report.

⁴ In Chapter 3 we note the differences between the English and Māori versions of te Tiriti / the Treaty. We also acknowledge te Tiriti was preceded by the signing of He Whakaputanga o te Rangatiratanga o Nu Tireni (the Declaration of Independence) in 1835, where Māori independence and sovereignty was accepted by the Crown.

⁵ Constitution Act 1986, section 10(4).

Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law ⁵⁵

Constitutional conventions

• 1.10 As well as written sources, the constitution is also made up of unwritten practices and conventions. A constitutional convention is a practice followed so consistently that it comes to be regarded as binding and is generally considered to constrain how legal powers can be used.
• 1.11 Such “constitutional conventions” are of critical importance to the working of the Aotearoa New Zealand constitution because they regulate and control the use of many legal powers. The convention that the governor-general always acts on the advice of the prime minister is an example of a constitutional convention.⁶

The three branches of government

• 1.12 Each branch of government has distinct functions. The executive branch is often referred to as “the government” – the prime minister and other ministers of the Crown, their ministries and other central government agencies – and is responsible for the administration of government. All ministers must, by law, also be elected MPs. The key government decision-making body of the executive branch is Cabinet, consisting of those ministers the prime minister chooses to be members.
• 1.13 Parliament enacts legislation and scrutinises how the executive exercises its powers. The doctrine of parliamentary supremacy means that such legislation is the highest form of law in our system of government. Parliament is made up of the House of Representatives and the sovereign (as represented by the governor general) acting together. The House of Representatives contains MPs who are also ministers (who can be either inside or outside of Cabinet), “backbench” MPs from governing parties (those who are not ministers), as well as MPs from parties who are not in government (Opposition MPs). Because all the important parliamentary work takes place in the House of Representatives, it is commonly referred to as “parliament” by itself.
• 1.14 The role of the courts is to interpret, apply and enforce the law of Aotearoa New Zealand including Acts of parliament, government regulations, and the common law. The common law is law made by judges in cases brought before them.⁷ All persons in Aotearoa New Zealand are subject to the rule of law, including the executive and parliament. Later in this chapter, we consider The role of the courts in electoral law, and we do so in other parts of this report – for example, in Chapter 18. Throughout this report, we discuss several important cases that have clarified electoral law.

⁶ Keith, above n 1, p. 3.

⁷ Judges are also required to follow decisions of courts that are higher in the hierarchy where the facts of the case before them are similar. For example, a High Court judge would have to follow a Court of Appeal or Supreme Court decision. This rule is known as the doctrine of precedent.

⁵⁶ Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law

Relationship between the executive and parliamentary branches

• 1.15 Under Aotearoa New Zealand's constitutional arrangements, ministers of the Crown must be members of parliament. This requirement gives the executive branch a powerful influence over the workings of the parliamentary branch.
• 1.16 Parliament makes laws and holds the executive to account. It scrutinises the actions of government ministers, government spending, and laws that the government wants the parliament to pass. However, because the governing party or parties typically have a majority in parliament, the government can usually get its proposed law changes passed by the House. Therefore, while parliament is important, on most occasions the executive government has the final say.
• 1.17 Parliament is particularly important in Aotearoa New Zealand because, as noted above in Constitutional documents, we have fewer checks on government than many other countries do. The central importance of parliament is a factor in parts of our report, such as when we discuss the term of parliament (Chapter 5), and emergency measures (Chapter 9). Because parliament itself is so crucial in our system of democracy, it follows that the way we elect MPs is also critically important. Large parts of our report focus on how we elect our MPs.

The importance of political parties

• 1.18 Political parties are a central feature of our electoral system, linking the people with parliament and government.⁸ As Sir Kenneth Keith states:

The competition for the power of the state, exercised by and through the House of Representatives, is a competition organised by and through political parties. It is party strength in the House after elections that decides who is to govern. It is the parliamentary party (or parties) with the support of the House (and the ability to maintain confidence and ensure supply) that provides the government.⁹

• 1.19 The internal procedures of parties, such as how they choose party leaders and candidates, affect governments. The relationships between parties, including coalition agreements, can have an impact.¹⁰ We discuss the role and regulation of political parties in Chapter 12.

The constitutional role of elections

• 1.20 The electoral system determines how MPs are elected. Elections are the way the competition for power can be settled peacefully.¹¹ In order to achieve such a

⁸ Keith, above n 1, p. 4.

⁹ Ibid.

¹⁰ Ibid.

¹¹ Geddis, A., 2023. Electoral Law in Aotearoa New Zealand. 3rd ed. Wellington: LexisNexis New Zealand Ltd, pp. 14-15.

Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law ⁵⁷

peaceful transfer of power, the electoral system must be robust, fair, free from corruption – and open to participation by as many people as possible, through regular elections.

• 1.21 Elections give the government a mandate to govern, based on the votes of a majority of those who participated. They directly tie government powers and the ability to make laws to the decisions of individual New Zealanders at the ballot box.¹²
• 1.22 Most of Aotearoa New Zealand’s electoral law is found in the Electoral Act. We examine the Electoral Act in detail throughout this report and, therefore, we do not discuss it further here except to say some of its provisions require 75 per cent of MPs or a majority vote in a public referendum to change the law (a process known as entrenchment). Entrenchment is a constitutional feature: it recognises MPs have a vested interest in electoral law and, therefore, sets a higher bar for changing parts of it through the Electoral Act. We discuss entrenchment in Chapter 2.
• 1.23 Elections form a central part of the “democratic check” on governments. By giving voters an opportunity to elect MPs, regular elections also ensure voters can directly hold the government of the day accountable. Regular elections mean governments have to periodically renew the mandate that voters have given them.
• 1.24 Therefore, regular, free, and fair elections are not only important, they are

fundamental to the success of Aotearoa New Zealand’s democracy.

International and domestic human rights

International rights

• 1.25 International and domestic human rights laws are a key pillar of our constitutional framework. Human rights help to balance the rights of individuals against the state – which has many resources and powers at its disposal. These rights should underpin electoral law.
• 1.26 We live in an increasingly globally connected world – one where we have many diplomatic, defence, trading and other relationships – and one where we rely on the cooperation of other countries. Many of these relationships are governed through international law. Aotearoa New Zealand has ratified several international treaties relating to human rights. These international treaties are written agreements between countries, governed by international law. The treaties we cover in this chapter were made in the United Nations.

¹² Ibid, p. 5.

⁵⁸ Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law

International treaties

• 1.27 Once Aotearoa New Zealand ratifies an international treaty, we are bound by law to follow it. These international treaties are, therefore, part of our constitutional landscape because they create obligations on the executive and the parliament.
• 1.28 For electoral law purposes, the international treaties Aotearoa New Zealand has ratified include the:
  • International Covenant on Civil and Political Rights: contains a number of civil and political rights (and the equal rights of men and women to them), confirming many of the rights in the Universal Declaration of Human Rights.¹³
  • Convention on the Elimination of All Forms of Discrimination against Women: affirms the equal rights of men and women, including women’s equal access to, and equal opportunities in, political and public life.¹⁴
  • Convention on the Rights of the Child: applies to anyone under 18, and provides that children who are capable of forming their own views have the right to express those views freely in all matters affecting them.¹⁵
  • Convention of the Rights of Persons with Disabilities: affirms the rights of disabled people to equality and non-discrimination, freedom of expression and opinion, and access to information.¹⁶ This convention also provides for disabled people’s political rights – and the ability to exercise them on an equal basis with other people.

United Nations declarations

• 1.29 As a member of the United Nations, Aotearoa New Zealand is also a party to several declarations. These declarations are not binding in the same way international treaties are, but they establish standards of practice and behaviour

¹³ Aotearoa New Zealand ratified the International Covenant on Civil and Political Rights GA Res 2200A (1966) in 1978.

¹⁴ Aotearoa New Zealand ratified the Convention on the Elimination of All Forms of Discrimination against Women GA Res 34/180 (1979) in 1985.

¹⁵ Aotearoa New Zealand ratified the Convention on the Rights of the Child GA Res 44/25 (1989) in 1993.

¹⁶ Aotearoa New Zealand ratified the Convention on the Rights of Persons with Disabilities GA Res 61/106 (2006) in 2008.

Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law ⁵⁹

with which states are expected to comply.¹⁷ United Nations declarations have significant status. Two declarations that are relevant to our work are:

• Universal Declaration of Human Rights: the founding international human rights document, which provides that “[a]ll human beings are born free and equal in dignity and rights”. Fundamental rights in this declaration include the right to life, liberty and security, equal protection by the law, the right to justice, freedom of thought and of expression, freedom of association, and the right to take part in the government.¹⁸
• Declaration on the Rights of Indigenous People: reaffirms the right of indigenous peoples to be free from discrimination, as well as their fundamental rights to self-determination.¹⁹ Among other rights, the declaration includes the rights to:
  • maintain and strengthen distinct political, legal, economic, social and cultural institutions while retaining the right to participate fully, if they so choose, in the political, economic, social and cultural life of the State²⁰
  • participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.²¹

Domestic human rights

• 1.30 In Aotearoa New Zealand many of these internationally guaranteed rights can now be found in our domestic law, particularly in the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990.²²

¹⁷ Costi, A., Davidson, S. & Yarwood, L., 2020. Chapter 4 The Creation of International Law. In: A. Costi, ed. Public International Law: A New Zealand Perspective. Wellington: LexisNexis NZ Limited, pp. 189

– 190.

¹⁸ The Universal Declaration of Human Rights GA Res 217A (1948) was ratified by the United Nations in 1948. Aotearoa New Zealand became a party in 1966.

¹⁹ Aotearoa New Zealand endorsed the Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007) in 2010. Article 46 (3) states that its provisions must be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

²⁰ Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007), art 5.

²¹ Ibid, art 18.

²² When applying and interpreting the New Zealand Bill of Rights Act 1990, the courts have always sought to reflect not just the common law but also New Zealand’s international obligations under the ICCPR, which New Zealand has ratified and which the enactment of the New Zealand Bill of

⁶⁰ Final Report | Chapter 1: The Constitutional and Human Rights Context of Electoral Law

Protection from discrimination in the Human Rights Act

• 1.31 Freedom from discrimination is one example of such a human right. This freedom is found in several international treaties. Domestically, section 21 of the Human Rights Act 1993 provides the right to freedom from discrimination under a list of grounds including sex, race, disability, age and political opinion.²³
• 1.32 Further, section 19 of the New Zealand Bill of Rights Act 1990 says that everyone has the right to freedom from discrimination under the grounds in the Human Rights Act 1993. Section 21(1)(i) of the Human Rights Act protects against discrimination to those aged 16 and over on the basic of age. We discuss age- based discrimination relating to voter eligibility in Chapter 7.

Democratic and civil rights in the New Zealand Bill of Rights Act 1990

• 1.33 Along with freedom from discrimination under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990 also contains a number of democratic and civil rights.²⁴ Many of these rights are directly relevant to electoral law. For example:
  • section 12: the right of citizens 18 years old and over to vote and to stand for election
  • section 13: freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference
  • section 14: freedom of expression, including the freedom to seek, receive and impart information and opinions
  • section 16: freedom to assemble peacefully
  • section 17: freedom of association
  • section 18: freedom of movement
  • section 19: freedom from discrimination on the grounds of discrimination under the Human Rights Act 1993
  • section 20: rights of minorities to enjoy their culture, practise their religion and use their language.

Rights Act 1990 in part fulfils: Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551, at [42] per Winkelmann CJ; Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA) at 270 per Cooke P.

²³ Human Rights Act 1993, section 21.

²⁴ The New Zealand Bill of Rights Act 1990, long title affirms Aotearoa New Zealand’s commitment to

the International Covenant on Civil and Political Rights.

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Rights that underpin electoral law

• 1.34 In this section, we briefly outline some of the key clusters of rights in international and domestic law that underpin electoral law.

Periodic and genuine elections

• 1.35 Some democratic rights centre on regular and genuine elections as the way to establish the authority of governments. For example, that secret ballots are required to ensure citizens can vote freely, all citizens of a certain age must be able to vote, and all votes must be equal.

The right to vote

• 1.36 International treaties state that ensuring citizens can genuinely exercise their right to vote means providing education and avoiding any unnecessary restrictions or obstacles that limit their ability to exercise this right. They also require that states identify factors that impede citizens from exercising the right to vote – and take positive measures to overcome those factors. For example, for disabled people, ensuring their rights are met includes making sure voting procedures, facilities and materials are appropriate, accessible and easy to understand and use.²⁵

The right to stand for election

• 1.37 The International Covenant on Civil and Political Rights, the Convention on the Rights of Persons with Disabilities, and the New Zealand Bill of Rights Act 1990 provide citizens with the right to take part in the conduct of public affairs, including standing for election.

Democratic rights

• 1.38 The International Covenant on Civil and Political Rights and the New Zealand Bill of Rights Act 1990 also protect the rights to freedom of thought, association and assembly. There is a right to adopt and hold opinions without interference and the right to join a political party.²⁶ The right of freedom of assembly allows parties and candidates to conduct electoral campaign gatherings.²⁷
• 1.39 The United Nations made a General Comment to Article 25 of the International Covenant on Civil and Political Rights in 1996 to provide further guidance. We

²⁵ Convention on the Rights of Persons with Disabilities GA Res 61/106 (2006), art 29.

²⁶ Section 13 of the New Zealand Bill of Rights Act 1990 provides that everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference. Section 14 of the New Zealand Bill of Rights Act 1990 recognises that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

²⁷ New Zealand Bill of Rights Act 1990, section 17.

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outline the key points from the General Comment in the box below. We also discuss it in later chapters of this report, as relevant.²⁸

United Nations General Comment

The United Nations made a General Comment to Article 25 of the International Covenant on Civil and Political Rights in 1996 to provide further guidance on the rights of citizens. That General Comment states (among other things) that:

• states should adopt laws and other measures to ensure citizens have an effective opportunity to enjoy the rights that Article 25 protects, and these rights cannot be limited or destroyed
• the right to vote and to stand as a candidate must be established in law and may be subject only to reasonable restriction, such as a restriction on the voting age
• restrictions must be objective and reasonable. It is unreasonable to restrict the right to vote on the grounds of physical disability
• where the right to register to vote is subject to residence requirements, those requirements must be reasonable, and must not exclude the homeless
• any abusive interference with registration or voting, and any intimidation or coercion of voters should be prohibited by penal laws that are strictly enforced
• voter education and registration campaigns are essential to the effective exercise of Article 25 rights
• positive measures should be taken to overcome specific difficulties, including illiteracy, language barriers, poverty or impediments to freedom of movement
• the right to vote includes the right to choose between a selection of candidates

• citizens must be free to associate as they chose, including by joining parties, campaigning and advertising political ideas
• the right to stand as a candidate should not be unreasonably limited by requiring that a candidate belong to a political party
• elections must be held at intervals that are not unduly long

• voters should be able to form opinions independently and free from compulsion or inducement

²⁸ General comment no. 25, The right to participate in public affairs, voting rights and the right of equal access to public service (article 25) UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996).

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• grounds for removing elected office holders must be based on objective and reasonable criteria and have fair procedures
• reasonable limitations on campaign expenditure may be justified where necessary to ensure the free choice of voters is not undermined, or the democratic process distorted by disproportionate expenditure
• an independent electoral body should be established

• the secrecy of the ballot should be protected in the run up to election day and the security of the ballot box must be guaranteed. Ballots must be counted in the presence of candidates or their agents
• assistance to the disabled, blind or illiterate should be independent

• the drawing of electorate boundaries and the method of allocating votes should not distort the distribution of voters, or discriminate against any group. It should not exclude or unreasonably restrict the right of citizens to freely choose their representatives
• free communication of ideas under a free press is essential

• political parties play a significant role in elections

• given their importance, political parties should respect Article 25 rights themselves.

New Zealand Bills of Rights Act rights can be subject to reasonable limits

• 1.40 Although protected under the law, the New Zealand Bill of Rights Act 1990 rights are not absolute. They can be constrained, but “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (section 5, New Zealand Bill of Rights Act 1990).
• 1.41 Having the legal ability to limit rights recognises that the rights of one person can encroach on the rights of another. Requiring that rights may be limited only to the extent that such limits can be demonstrably justified in a democracy creates a “culture of justification” that puts an important brake on government overreach. Deciding which limitations are justifiable engages all the constitutional branches of state – when governments propose legislation, when parliament enacts legislation, and when the courts are called upon to consider it.

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Scrutiny by the executive and parliament

• 1.42 All legislation introduced to parliament is checked by government lawyers for its compliance with the New Zealand Bill of Rights Act 1990.²⁹ This means looking to see whether the proposed law limits any of the rights guaranteed by the New Zealand Bill of Rights Act and, if so, whether that limit can be justified under section 5. Where it is considered that a law change will limit rights in a way that cannot be justified, the government lawyers advise the attorney-general. If the attorney-general agrees, they then have a duty to notify parliament under section 7 of the New Zealand Bill of Rights Act.
• 1.43 Upon receiving a notification from the attorney-general about the New Zealand Bill of Rights Act 1990 inconsistency, parliament then forms its own view about whether a law does or does not justifiably limit any rights affirmed by the New Zealand Bill of Rights Act.

The role of the courts

• 1.44 Unlike some other countries, Aotearoa New Zealand’s constitution does not provide the ability for a court to strike down any law as unconstitutional or inconsistent with fundamental rights and freedoms. But when the courts are interpreting a law, they must interpret it in a way that is consistent with the rights and freedoms in the New Zealand Bill of Rights Act 1990, if such an interpretation is possible (section 6, New Zealand Bill of Rights Act). The Supreme Court has also noted that this section 6 consistency test involves considering whether any restriction on rights is justifiable in a free and democratic society under section 5 of the New Zealand Bill of Rights Act.³⁰
• 1.45 The senior courts can also issue a “declaration of inconsistency” when a law cannot be interpreted in a way that is consistent with the New Zealand Bill of Rights Act 1990.³¹ Parliament can then choose to change the law, but the court’s decision does not make the law invalid. A law change in 2022 ensures that the court’s declarations are to be actively considered by parliament: the government is now required to present MPs with a response to the court’s declaration within

²⁹ The Ministry of Justice is generally responsible for New Zealand Bill of Rights Act 1990 vetting, but bills developed by the Ministry of Justice are vetted by the Crown Law Office. There is an exception for appropriation bills, which are not checked for compliance with the New Zealand Bill of Rights Act 1990.

³⁰ Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

³¹ Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [73]. The “senior courts” are the High Court, the Court of Appeal and the Supreme Court: Senior Courts Act 2016.

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six months.³² This change strengthens the ability of the courts to check the power of parliament, but leaves parliamentary supremacy intact.

• 1.46 The Supreme Court has noted that section 4 affirms parliament’s right to legislate inconsistently with the New Zealand Bill of Rights Act 1990 (in line with the supremacy of parliament as we discuss in The three branches of government) and that section 6 is an instruction to the judiciary as to how to interpret parliament’s legislation.³³ The courts have repeatedly recognised that the New Zealand Bill of Rights Act is a statute of constitutional significance.
• 1.47 The courts have considered a declaration of inconsistency on a number of electoral law issues. Most recently, the Supreme Court declared that a voting age of 18 was an unjustified limitation on the rights of 16- and 17-year-olds.³⁴

Constitutional and human rights considerations in this report

• 1.48 The constitutional and human rights considerations set out in this chapter explain why electoral law is important. These considerations signpost the essential matters that must be taken into account when reviewing electoral laws.
• 1.49 Such considerations have been at the forefront of our thinking throughout this report. Balancing individual rights with the reasons why these rights may be limited can be a challenging exercise. It can also be one where reasonable people may disagree, but we have endeavoured to ensure that where such balancing has taken place, our thinking is clearly set out.

³² New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, inserting sections 7A and 7B into the New Zealand Bill of Rights Act 1990. Under the change, the Attorney-General must also notify parliament of a court’s declaration of inconsistency within six days of the declaration becoming final (that is, once the appeal period is over and all appeals have been heard).

³³ Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551, at [40] per Winkelmann CJ.

³⁴ Make It 16 Incorporated v Attorney-General [2022] NZSC 134, [2022] 1 NZLR 683. We discuss the voting age in Chapter 7. See also Geddis, above n 11, pp. 283-284 for further discussion on the New Zealand Bill of Rights Act 1990 and electoral law.

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Final Report | Chapter 2: The Overall Design of Our Electoral Laws ⁶⁷

2. The Overall Design of Our Electoral Laws

• 2.1 Good legislative design means that laws are clear, effective, accessible and constitutionally sound.¹
• 2.2 The scope of this review covered the Electoral Act 1993, the Electoral Regulations 1996, Parts 2 and 3 of the Constitution Act 1986, and Part 6 of the Broadcasting Act 1989. We have considered:
  • whether the legislative framework strikes the right balance between certainty and flexibility in its use of primary legislation, secondary legislation, and other instruments
  • the protection of fundamental electoral rights through entrenched provisions
  • what other improvements could support the review’s objectives.
• 2.3 We also considered how well the legislative framework upholds te Tiriti o Waitangi

/ the Treaty of Waitangi (te Tiriti / the Treaty).

Modernising electoral law

• 2.4 The current Electoral Act came into force in 1993 when the Mixed Member Proportional (MMP) voting system was adopted. However, its basic framework was taken from the Electoral Act 1956. Some provisions in the current law have been largely unchanged since the nineteenth century.

¹ For more information, see Legislation Design and Advisory Committee, 2021. Legislation Guidelines, Wellington: Legislation Design and Advisory Committee.

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Is there a case for change?

Issues identified

• 2.5 The Electoral Act 1993 has been subject to piecemeal change since it was passed. It has been amended so many times that the order and structure no longer make sense, making it very difficult to navigate. Many provisions have been carried over from the Electoral Act 1956 (or even earlier) with limited consideration as to whether they are still relevant or fit for purpose.
• 2.6 Making piecemeal changes risks inadvertently introducing inconsistencies or contradictions into the law. It also leads to the law becoming more complex and harder to access. The absence of a thorough review means that provisions may become outdated or irrelevant over time.
• 2.7 There are many instances throughout the Electoral Act 1993 where the structure and language are convoluted, difficult to understand, or simply archaic. To provide just a few examples:
  • the offence of “undue influence” refers to inflicting “any temporal or spiritual injury, damage, harm, or loss upon or against any person”
  • the voter and candidate eligibility provisions are scattered throughout various sections of the Electoral Act in an illogical order
  • the fact that there is a section 206ZH in the Electoral Act indicates that it has been revised so many times that it has become unwieldy
  • the special voting regulations refer to “convalescent, aged, infirm, incurable, destitute, or poor people”.

Our initial view

• 2.8 In our interim report, we proposed that the Electoral Act should be thoroughly redrafted with the aim of making it modern, comprehensive and accessible.
• 2.9 The basic framework of the Electoral Act has not been updated to reflect the major changes in electoral practice over the last 60 years. Continuing to amend such a heavily revised law on a piecemeal basis jeopardises its overall coherence.
• 2.10 This situation creates the risk that the law will become increasingly unwieldy, unclear and inconsistent. Given the democratic importance of electoral law, it is problematic that many people affected by the law may struggle to understand it.

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Earlier recommendations

1986 Royal Commission

The 1986 Royal Commission recommended that the Electoral Act should be redrafted with the aim of making it as comprehensive and accessible as possible.

Electoral Commission

The Electoral Commission has made a range of recommendations over the years to modernise and simplify the Electoral Act – for example, updating the use of archaic language and removing references to outdated methods of communication like fax.

The Electoral Commission has also recommended prescribing only the purpose and information required for electoral forms (such as enrolment and special declaration forms) to allow discretion and flexibility to better meet the needs and circumstances of electors. Many forms previously contained in the Electoral Act and the Electoral Regulations are now delegated to the Electoral Commission with the form of the ballot being a key exception to this approach.

Feedback from second consultation

• 2.11 There was general support for modernising and redrafting the Electoral Act, with submitters commenting on the value of making sure the law is easily understood by all. A few submitters, including the Electoral Commission, noted that redrafting the Act would be a substantial project requiring significant time and resource.
• 2.12 A few submitters who completed our online form thought the current law worked fine or had concerns about this proposal. They were concerned that “modernising” the Act could create ambiguity and obscure the original intent of the law. A few submitters thought this process would be used to make more substantive changes without adequate transparency.

Our final view

• 2.13 We maintain our view that there is a need for a fundamental redraft of the Electoral Act. Implementing the package of changes set out in this report would be a significant task. Redrafting would provide an opportunity for a comprehensive update and refresh of the Electoral Act to bring it into the 21st century.
• 2.14 The Royal Commission on the Electoral System recommended the same approach in 1986. While the Electoral Act 1993 made significant changes to incorporate the new MMP voting system, this more fundamental review of the law did not happen

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at that time. It is 37 years since the Royal Commission’s recommendation, and this

exercise has still not been undertaken. It is now long overdue.

• 2.15 This redrafting exercise would not mean that all the content of electoral law needs to be revisited. In our review, we have found that many aspects of electoral law are working well, and these should be retained. Our proposal is to rewrite the Electoral Act in modern legislative language that makes it more accessible and coherent.
• 2.16 As part of this process, we recommend attention be paid to:
  • modernising outdated language
  • improving clarity to avoid uncertainty about rights or responsibilities and difficulty in interpreting the law
  • removing provisions that are no longer fit for purpose
  • improving the order and organisation of provisions into a more logical structure
  • overhauling and reviewing offences and penalties to be consistent and effective
  • embedding a more technology-neutral approach, particularly in primary legislation.
• 2.17 On the final point, it is important that the use of new technologies and methods of communication is subject to appropriate safeguards and democratic scrutiny, including engaging with affected community groups. We do, however, think that primary legislation should avoid specifying the use of certain technologies and methods of communication (such as post) unless there is a strong reason to do so. This approach will allow electoral provisions to evolve over time as technologies change. Regulations could be used to provide for any technical detail and safeguards needed to facilitate these changes responsibly and transparently. These regulations will be subject to review by parliament’s Regulations Review Select Committee.
• 2.18 In response to the concerns of submitters, we note that the redrafting process would have the aim of reducing ambiguity in the law. The redrafted Electoral Act would also be subject to parliamentary scrutiny, including public submissions, as part of the legislative process. This will ensure that all proposed changes are considered through a transparent process before the new Act is enacted.

Interaction with our other recommendations

• 2.19 In Chapter 3, we recommend that the Electoral Act require decision-makers to give effect to te Tiriti / the Treaty and its principles, as well as making this a specific objective for the Electoral Commission. These changes would support the active protection of Māori rights and interests in all aspects of electoral administration.

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• 2.20 Over time, electoral law has mostly been consolidated into a single Act, with some relevant provisions remaining in the Constitution Act 1986 and the Broadcasting Act 1989. In Chapter 14, we recommend abolishing the broadcasting regime for election programmes. These changes would remove the need for the provisions in Part 6 of the Broadcasting Act 1989, which would consolidate electoral law further. We consider it appropriate that some provisions remain in the Constitution Act 1986 as they regulate the executive and legislative branches of government.
• 2.21 In Chapter 18, we discuss our recommendation to overhaul and consolidate the offences and penalties regime in the Electoral Act to ensure it is fit for purpose.

The Panel recommends:

R1. Redrafting the Electoral Act 1993 to incorporate the changes set out in this report and to update the statute’s structure and language with the aim of making it modern, comprehensive and accessible.

The use of primary and secondary legislation

• 2.22 Electoral law sits across primary legislation (the Electoral Act 1993) and secondary legislation (the Electoral Regulations 1996). The Electoral Act empowers regulations to be made for specific purposes. Most of the current electoral regulations relate to special voting.
• 2.23 Changes to the Electoral Act are debated and passed by parliament and are usually subject to public scrutiny through the Select Committee process.
• 2.24 Changes to the Electoral Regulations are confirmed by Cabinet and approved by the governor-general. While parliament does not play a role in making these regulations, the Regulations Review Select Committee reviews all regulations made under the Electoral Act. The House of Representatives can also disallow a regulation, meaning it no longer has force.

Is there a case for change?

Issues identified

• 2.25 The use of primary and secondary legislation needs to strike a balance between certainty and flexibility. A high degree of prescription in primary legislation may mean that the intent of the law is clear, but it is difficult and time consuming to

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make reasonably minor changes and improvements. Regulations are commonly used where laws may need to be updated regularly or where technical or administrative detail needs to be set out.

• 2.26 The different kinds of legislation also reflect the strength of the safeguards in place when making changes to electoral law. The entrenched provisions, discussed in the next section, represent the highest level of protection from change. Primary legislation is subject to parliamentary scrutiny and public debate, which means that changes go through an open and transparent process. Secondary legislation is primarily the responsibility of the lead minister and Cabinet, though additional safeguards can be put in place. These safeguards may be particularly important for electoral law, given that it regulates the political system itself.
• 2.27 The Legislation Design and Advisory Committee guidelines highlight the following considerations when determining what law-making powers can be delegated:
  • The legitimacy of the law: important policy content should be determined by parliament through an open, democratic process, but the details may not require parliamentary time.
  • The durability and flexibility of the law: delegation can help to respond to changing or unforeseen circumstances and allow for minor flaws to be addressed quickly.
  • The certainty or predictability of the law: too much delegation or poorly scoped delegations can undermine the clarity of the law.
  • The transparency of the law: the heavy use of secondary legislation may create complexity and make it hard to find the rules, but too much technical detail in primary legislation is also difficult to navigate.²
• 2.28 Currently, our electoral law may rely too heavily on overly prescriptive primary legislation, as seen in the level of detail in the Electoral Act and the limited use of regulations for only a few topics. The regulation-making powers in the Electoral Act are also quite narrowly defined and may not have kept pace with best practice.

Our initial view

• 2.29 In our interim report, we noted that in many instances, electoral law is set out in highly prescriptive detail in primary legislation. This approach provides clear direction to the Electoral Commission and leaves little room for subjective decision-making. The consequence, however, is that the primary legislation is long, complex, inflexible and may need frequent updating.

² Legislation Design and Advisory Committee, above n 1, p. 67.

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• 2.30 Our initial view was that the redrafting of the Electoral Act would provide an opportunity to review whether the right balance has been struck between primary and secondary legislation in each area of electoral law.
• 2.31 We also noted that, in general, the use of primary and secondary legislation is a matter best considered by the Parliamentary Counsel Office. A thorough and detailed review of their appropriate use in electoral law is not a task that could be undertaken as part of this review, but we set out general comments that could help to guide the approach.

Feedback from second consultation

• 2.32 Very few submitters commented on this issue. Those who did mostly supported the recommendation, citing the greater flexibility that the appropriate use of secondary legislation can provide.
• 2.33 The New Zealand Law Society and the Clerk of the House of Representatives noted that the constitutional nature of electoral law means that adequate parliamentary oversight and control should be prioritised over flexibility when considering what can be delegated. Another submitter pointed out that the degree of prescription in the primary legislation reflects the need to ensure procedural rigour given electoral law’s political implications.

Our final view

• 2.34 We still consider that the balance between primary and secondary legislation in electoral law should be revisited as part of redrafting the Electoral Act.
• 2.35 Primary legislation is appropriate for the most important features of electoral law. These should be subject to parliamentary scrutiny and public input through the Select Committee process. The Electoral Act should set out matters of principle and significant policy, while regulations can provide the detail on how those principles and policies should be implemented.
• 2.36 We acknowledge the concerns raised with us about too much delegation, given the constitutional nature of electoral law. In some areas, it may be appropriate to keep a higher level of detail in primary legislation that might be left to secondary legislation in other areas of law. Examples of electoral matters that should generally be contained in primary legislation are:
  • the right to vote and to stand for office
  • the voting system
  • the creation and process for filling vacancies in parliament
  • the term of parliament and the election timetable

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• core aspects of the voting method, such as the secrecy of the vote, the form of the ballot, and the provision of in-person and special voting
• the composition, powers and functions of electoral administration bodies
• core aspects of the regulation of election campaigns and finances
• serious electoral offences
• rights to appeal or legal challenge.

• 2.37 In general, these features of electoral law are already included in primary legislation, and we think they should continue to be in future versions of the Electoral Act.
• 2.38 Strengthening the safeguards that apply to regulation-making powers can also mitigate the risks of delegation to secondary legislation. These safeguards could include stronger engagement requirements for regulations. Engagement may be particularly valuable on areas of public interest, such as voting procedures and access to the electoral rolls, rather than administrative matters. The nature of the engagement requirements, including who should be consulted and the timing and process, will depend on the regulation. Engagement with Māori as the Crown’s Tiriti / Treaty partners will be important.
• 2.39 We also think there may be value in reviewing the regulation-making powers in the Electoral Act.³ In general, the powers to make regulations are quite detailed and prescriptive, except for a general power to make regulations to give effect to the Electoral Act. A more up-to-date approach might see the regulation-making powers set at a similar, and generally higher, level.
• 2.40 One particular area of electoral law where we think the balance between primary and secondary legislation needs to be revisited is voting methods and procedures. Most rules governing ordinary voting are in the Electoral Act, while special voting rules sit largely in the regulations, and advance voting provisions are split between the two. This allocation may reflect ad hoc changes that have been made over time rather than deliberate consideration of the ideal balance. The growth of advance and special voting strengthens the case for a more consistent legislative

³ Electoral Act 1993, section 267.

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treatment across voting methods. More detailed voting procedures may be acceptable in secondary legislation.

The Panel recommends:

R2. Reassessing the appropriate use of primary and secondary legislation in electoral law as part of redrafting the Electoral Act.

The entrenched provisions

• 2.41 An important feature of electoral law in Aotearoa New Zealand is the entrenched provisions. The entrenched provisions were introduced in the Electoral Act 1956. These provisions can only be changed by a majority vote in a public referendum or a 75 per cent vote in parliament.
• 2.42 The entrenched provisions, set out in section 268 of the Electoral Act, are:
  • section 28, which sets the membership of the Representation Commission
  • section 35, which sets the process for dividing New Zealand into general electorates, as well as the definition of “general electoral population”
  • section 36, which sets the allowance for adjusting the population quota within general electorates
  • sections 74, 60(f), and the definition of the term “adult”, so far as those provisions set the minimum voting age
  • section 168, which sets the method of voting
  • section 17(1) of the Constitution Act 1986, which sets the maximum term of parliament.
• 2.43 Entrenchment is based on the idea that changes to core aspects of electoral law should typically be made with broad political and public support. The higher threshold for altering these provisions reflects the importance of protecting certain aspects of electoral law from changes intended to benefit particular political parties.

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Earlier recommendations

1986 Royal Commission

The 1986 Royal Commission recommended entrenchment of the right to vote and to be a candidate, the method of voting, the determination of the number of electorates and their boundaries, the Representation Commission, the term of parliament, and the tenure of the Electoral Commissioner.

The Royal Commission suggested that the substance of these matters should be entrenched rather than the specific provisions. It also supported double entrenchment, where the entrenching provision is itself entrenched, though it did not consider it crucial.

Is there a case for change?

Issues identified

• 2.44 When the Electoral Act 1956 was passed, it was believed that entrenchment could not be legally effective as the prevailing view was that one parliament could not restrict the actions of future parliaments. Entrenchment was considered to impose a moral and political check on parliamentarians rather than a binding legal one.⁴ Nevertheless, the requirements for amending entrenched provisions have been consistently followed by successive parliaments and have developed into a constitutional convention.
• 2.45 Since then, understandings of parliament’s law-making powers have become more nuanced. It is now more commonly accepted that “manner and form” provisions, which require special procedures to be followed by parliament when changing certain aspects of the law, could be legally binding and restrict how parliament may make new law.
• 2.46 There have been no changes to which provisions are entrenched since 1956, even though potential gaps and inconsistencies have been raised since. The current entrenched provisions reflect issues that were heavily debated at the time and that were important aspects of the First-Past-the-Post voting system. Much has changed since then, including the move to MMP, and the entrenched provisions should be reviewed in light of these changes.
• 2.47 As part of our review, we have considered what provisions should be entrenched (and on what basis), the process for amending entrenched provisions, and whether double entrenchment is required.

⁴ See the Hon Mr John Marshall, (26 October 1956) 310 NZPD 2839.

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Our initial view

• 2.48 Our initial view was that the provisions that are currently entrenched should remain so. These provisions are fundamental aspects of our electoral system, and their entrenched status has been broadly accepted since they were adopted in 1956.
• 2.49 We also identified inconsistencies and gaps across the entrenched provisions. We recommended several additional provisions be entrenched, including (but not limited to) the method for the allocation of seats in parliament, the party vote threshold, the right to vote, and the Māori electorates.

Feedback from second consultation

• 2.50 Submitters who supported our draft recommendation to entrench additional provisions did so in recognition of the importance of these provisions. Others thought entrenchment should be used sparingly to preserve its impact.
• 2.51 The New Zealand Law Society questioned the rationale for entrenchment generally, noting the risks of making the law harder to change. It proposed more consideration of potential adverse effects and the implications for protecting human rights and minority rights. One organisation supported different approaches to entrenchment depending on whether the change would increase or limit voting rights. It proposed that increasing voting rights should only require the support of a simple majority while reducing voting rights should require a supermajority.
• 2.52 Not all submitters agreed with the provisions we proposed to entrench and, in some cases, questioned our rationale. Some submitters were concerned that the proposed provisions were not universally accepted and entrenchment could limit future democratic debate on these issues.
• 2.53 A few submitters also suggested that we should provide guidance on the appropriate method of change – either parliamentary vote or referendum – for different entrenched provisions. The Clerk of the House of Representatives commented on the importance of making sure the scope of entrenched provisions is clear.

Our approach to entrenchment

The rationale for entrenchment

• 2.54 It is useful to explore the arguments for and against the use of entrenchment. Entrenchment has constitutional implications, which means its use needs to be considered carefully.

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• 2.55 In our view, entrenchment can provide the following benefits:
  • Entrenchment enhances the legitimacy of change: Amending or repealing an entrenched provision requires either public support (referendum) or broad parliamentary consensus (a supermajority). In this way, entrenchment ensures that changes have democratic legitimacy beyond the normal process for change.
  • Entrenchment guards against political interference: Requiring a higher threshold for change makes it harder for political parties to change the “rules of the game” for their own benefit. This benefit is particularly important for electoral law, which regulates political parties and affects the legitimacy of parliament.
  • Entrenchment creates certainty and stability: Making it harder to change the law means the rules in question are more likely to be stable and certain. Constitutional matters are more likely to be enduring, compared with substantive policy issues that may change frequently based on the position of the government of the day.
  • Entrenchment protects core aspects of our constitution: In Aotearoa New Zealand, entrenchment is currently used only for electoral matters that are of constitutional significance. Entrenchment recognises that these matters are important and fundamental to our democracy. As such, more than the default law-making process (a simple majority in parliament) should be required to change them.
• 2.56 However, we heard arguments against the use of entrenchment from the New Zealand Law Society. We are also aware of other views on the use of entrenchment that have been raised in academic literature⁵ and through other reviews, such as the Review of Standing Orders 2023. These include:
  • Entrenchment makes it harder to change laws: Entrenchment creates an additional burden to the standard process for statutory change. As a result, it can be more difficult to respond to changing societal expectations and to keep legislation modern and fit for purpose. This constraint can, in turn, limit the effectiveness of parliament in responding to such changes.
  • Entrenchment places constraints on parliamentary sovereignty: Parliamentary sovereignty is a fundamental principle in New Zealand law. Entrenchment imposes a restriction on parliamentary sovereignty by binding future parliaments to follow certain “manner and form” requirements. It should, therefore, be used carefully and sparingly. It may

⁵ For example, Barber, N. W., 2016. Why entrench? International Journal of Constitutional Law, 14(2), pp. 325–350.

Final Report | Chapter 2: The Overall Design of Our Electoral Laws ⁷⁹

be justified particularly where it protects another constitutional principle, such as representative democracy or the principle of legality.

• Entrenchment creates risks of incumbency bias: A government could seek to use entrenchment to make it harder for subsequent parliaments to overturn their policies. Doing so could erode the integrity of our democracy by unreasonably limiting the ability to change contested policy areas.
• Entrenchment could create tension between constitutional institutions: If there is doubt about the scope of an entrenched provision or whether the “manner and form” requirements were followed, the courts may be required to determine if the law was validly made. This situation may risk disagreement between the legislature and the judiciary on constitutional and political matters – an outcome that many commentators consider undesirable.

• 2.57 While we note these points, we would also challenge how much weight they should be given in this context. The additional provisions we have proposed to entrench, discussed below, are as fundamental as the provisions which are already entrenched. We think it should be harder to change these provisions – doing so by a simple parliamentary majority risks gaming the system for political benefit. Entrenchment does not prevent parliament from passing substantive policy proposals, nor limit parliament’s ability to debate the entrenched provisions or to call a referendum.
• 2.58 It is important that entrenchment is seen to have democratic legitimacy. The process for entrenching a provision reflects this concern: Standing Order 270 requires that any proposal for entrenchment must itself be carried in a committee of the whole House by the majority that it would require for the amendment or repeal of the provision being entrenched. The House has recently agreed that any proposal for entrenchment must be considered by a select committee, including a call for submissions, and cannot be considered under urgency.⁶ These procedural requirements are important safeguards to ensure that the House considers the appropriateness of entrenchment proposals and that they can only be adopted with the support of more than a simple majority in the House.
• 2.59 If parliament follows these procedures and entrenched provisions are clearly scoped, then issues should not arise about whether a law has been validly made. And if the rules are not followed, then we see a legitimate role for the courts in these matters – though we note the process has largely been managed well since entrenchment was introduced.

⁶ Standing Orders Committee, 2023. Review of Standing Orders 2023: Report of the Standing Orders Committee, Wellington: New Zealand Parliament, pp. 32-33.

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Our framework for considering entrenchment

• 2.60 In considering our final view, we have taken the arguments discussed above into account and built on the considerations set out by the 1986 Royal Commission. To assess whether a provision should be entrenched, we have used the following questions as a framework:
  • Is the provision constitutional in nature? Given the imposition on regular parliamentary processes, we think entrenchment should only be used for constitutional matters, including those relating to the integrity and legitimacy of representative democracy.
  • Could changing the provision reduce the rights of the electorate? Reducing the rights of the electorate affects the role of voters in our constitution, which by extension affects the legitimacy of our democracy.
  • Could changing the provision expand the powers of parliamentarians? A key purpose of entrenchment is to prevent political opportunism by political parties seeking to change the rules in their own favour.
  • Does the provision affect individual and minority rights? Entrenchment can be a way of protecting individual and minority rights by raising the threshold for change. If a simple majority can change the law, then the rights of individuals and minorities may be more at risk of being undermined. However, entrenchment also means that there is a higher bar for changes to expand rights.
  • Is the matter sufficiently important? A provision must meet a high threshold of importance to justify a change to the standard legal process.
• 2.61 As noted above, democratic legitimacy is also important. We consider that the process for entrenchment ensures a proposal must have broad support to be adopted. The proposals we recommend entrenching would be subject to this process.
• 2.62 We emphasise that the entrenched provisions are not necessarily exhaustive of the matters that should only be changed with broad consensus.

Our final view

• 2.63 We have maintained our initial view that the existing entrenched provisions should be retained. These provisions are consistent with the framework set out above.
• 2.64 We have also confirmed our draft recommendations about the further provisions we consider should be entrenched, with one addition. These recommendations would help to make the entrenched provisions more comprehensive and consistent. We discuss our rationale for each additional provision below.

Final Report | Chapter 2: The Overall Design of Our Electoral Laws ⁸¹

• 2.65 We have commented on the scope of what we propose to entrench based on existing provisions to indicate the substance of what should be entrenched. These exact provisions may change as part of the proposed redrafting of the Electoral Act.

The allocation of seats in parliament and the party vote threshold

• 2.66 A country’s voting system defines how representatives are selected for its parliament. In our view, the current entrenched provisions protect matters that were critically important to a First-Past-the-Post voting system, leaving gaps that need to be addressed to reflect the adoption of MMP.
• 2.67 The voting method, which requires a voter to mark their party vote and electorate vote, and the boundary determination process, which defines the number of electorate seats, are already entrenched. There is no corresponding entrenchment, however, of the party vote threshold and the process for allocating seats in parliament. These are core parts of MMP that significantly impact the proportionality and representativeness of parliament.
• 2.68 Political parties have a strong self-interest in the party vote threshold as it determines their own chances of electoral success, as well as that of their competitors and potential coalition partners. Changes to the party vote threshold could be seen as advancing a particular party’s partisan electoral interests. While there may be different views on what the party vote threshold should be, we think most people would agree that this rule should not be changed by a bare majority of MPs in parliament.
• 2.69 The formula used to determine how votes for qualifying parties are turned into seats in parliament is also important. Changing this formula can create different outcomes for larger or smaller parties. Again, allowing such changes by way of a bare majority vote in parliament runs the risk of political manipulation.
• 2.70 We therefore propose that the calculation and allocation of seats currently contained in sections 191to 193 of the Electoral Act, which includes the party vote threshold, should be entrenched. We note that the size of parliament would be entrenched as a consequence, as the size of parliament is embedded in the formula for allocating seats. With the changes we have proposed in Chapter 4, this would mean that the fixed ratio of electorate to list seats and the growth of parliament over time would also be included in this calculation.

The Māori electorates

• 2.71 While the boundary determination process for general electorates (sections 35 and

36) is entrenched, the same provisions for the Māori electorates (section 45) are not. This is often taken to mean that the Māori electorates could be abolished, or the process for determining the number of electorates amended, by a simple majority. Conversely, changes to general electorates must meet a higher threshold for change.

⁸² Final Report | Chapter 2: The Overall Design of Our Electoral Laws

• 2.72 However, there is a legal argument that the Māori electorates are already entrenched, given they are referenced in the entrenched provisions relating to the general electorates. In light of this possibility, expressly entrenching the Māori electorates would make their status clear and avoid the risk that the courts will be required to resolve the matter in the future.
• 2.73 In any case, our view is that the discrepancy between the protection given to the general and Māori electorates is inconsistent and unfair on its face. The rationale for entrenching the Māori electorates is the same as the general electorates – that it would protect the boundary determination process from political interference. While some people point out that the Māori electorates were originally intended to be temporary, they have now existed for almost the entirety of Aotearoa New Zealand’s electoral history. They are a core part of how seats in parliament are allocated under MMP and on that basis, consistent with our previous recommendation, should be entrenched. To be clear, entrenching the Māori electorates does not confer any greater voting rights for people on the Māori roll.
• 2.74 Some submitters questioned why we have made this recommendation when the retention of the Māori electorates is out of scope of the review. We have not considered the merits of retaining the Māori electorates relative to alternative forms of Māori representation. Our recommendation to entrench the Māori electorates is not intended as a comment on their future, but rather to ensure that a long-standing feature of our electoral system is given fair and consistent treatment in the law.
• 2.75 We acknowledge the ongoing conversations about constitutional change, and that the role of the Māori electorates may evolve over time. In our view, entrenchment does not constrain these debates from taking place. Rather, it sets the process that must be followed if changes to their status are proposed and makes this equal to the general electorates. The 1986 Royal Commission usefully framed the Māori electorates in terms of both their current constitutional relevance as well as their potential for future evolution: ⁷

Although they were not set up for this purpose, the Māori seats have nevertheless come to be regarded by Māori as an important concession to, and the principal expression of, their constitutional position under the Treaty of Waitangi. To many Māori, the seats are also a base for a continuing search for more appropriate constitutional and political forms through which Māori rights (mana Māori in particular) might be given effect.

• 2.76 We recommend that the provisions contained in section 45 of the Electoral Act, as well as the definition of Māori electoral population in section 3(1), should be entrenched.

⁷ Royal Commission on the Electoral System, 1986. Report of the Royal Commission on the Electoral System, Wellington: House of Representatives, p. 86.

Final Report | Chapter 2: The Overall Design of Our Electoral Laws ⁸³

The right to vote and stand as a candidate

• 2.77 The right of citizens to vote is affirmed by international law and the New Zealand Bill of Rights Act 1990. Voter eligibility rules in the Electoral Act impose some limitations on that right while also extending it to residents.
• 2.78 Given the importance of these rules, and their direct impact on participation, it is desirable for them to be based on broad consensus and public support. Currently, the voting age is the only aspect of the right to vote that is entrenched. We think there is cause to address this inconsistency and entrench the right to vote more broadly.
• 2.79 Political parties may be motivated to allow or restrict certain groups to vote for their own gain. Entrenchment can be a means of protecting human and minority rights by increasing the threshold required for change. While democracies tend to expand voting rights over time, there is a risk that a simple majority could choose to significantly roll back voting rights for particular groups. A higher threshold for change helps to mitigate this risk.
• 2.80 Some submitters pointed out that entrenchment may mean it is harder to keep up with evolving interpretations of rights, and it also creates a risk that a minority in parliament can block the expansion of voting rights for some groups. To manage this risk, we heard a suggestion that only changes to reduce voting rights should be entrenched, while changes to expand voting rights could still be made by a simple majority. We are concerned, however, that having different requirements depending on the nature of the change may appear politically opportune. While views on voter eligibility are often varied, there is a risk that making changes that don’t have broad support will undermine the perceived legitimacy of the electoral system. Entrenching voter eligibility rules more broadly, instead of just the voting age, will ensure more consistent consideration in this regard.
• 2.81 For the same reasons, we also recommend candidate eligibility rules are entrenched. In practice, candidate eligibility rules may be less likely in Aotearoa New Zealand to be subject to political interference than voter eligibility, given the less direct effect on election outcomes. However, entrenchment would ensure that any significant changes to candidate eligibility, such as allowing non-citizens to stand as candidates, would require broad consensus.
• 2.82 We recommend that the provisions contained in sections 74 and 80 of the Electoral Act should be entrenched, so far as they set voter eligibility requirements. Care should be taken not to entrench related provisions in these sections, such as which electoral district a person is qualified to enrol in. We also recommend entrenching section 47, which provides for candidate eligibility.

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The independence of the Electoral Commission, including the process for removing its members

• 2.83 An independent and impartial electoral administrator is an important part of our electoral system. The Electoral Commission serves a constitutional function by ensuring that free and fair elections can be delivered without political interference.
• 2.84 The Electoral Act sets a high threshold for removing members of the Electoral Commission – members can only be removed for just cause by the governor- general acting upon an address of the House of Representatives. This process is intended to prevent the government of the day from removing members of the Electoral Commission prematurely if it does not agree with their decisions or actions. Entrenching this process would stop a government from using a bare parliamentary majority to change the law to allow it to directly sack members of the Electoral Commission.
• 2.85 We acknowledge that an address from the House can technically be adopted by a simple majority, and so entrenchment will not necessarily stop a majority government or coalition from removing a member of the Electoral Commission unilaterally. It does, however, ensure that any such move must be done transparently following a public debate, and that these transparency requirements cannot be easily changed.
• 2.86 We recommend that the provisions contained in section 4G of the Electoral Act, which relate to the power to remove or suspend members of the Electoral Commission, should be entrenched. In addition to our draft recommendations, we think the independence of the Electoral Commission in performing all its duties and functions should also be protected, given the importance of protecting the conduct of elections from political interference. Therefore, we also recommend section 7, which affirms the independence of the Electoral Commission, should be entrenched.

The process for the report of the Representation Commission on electoral boundaries to take legal effect

• 2.87 Several provisions in the Electoral Act relating to boundary determinations are already entrenched to protect this process from political interference. The Royal Commission noted that section 40 presents a gap in the entrenched provisions. This section provides for the electorates set by the Representation Commission to take legal effect without any parliamentary role or oversight.
• 2.88 We recommend this section should be entrenched to protect the independence of the Representation Commission’s determinations. The equivalent provision for the Māori electorates is already contained in section 45, which we have proposed to entrench.

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The method for changing entrenched provisions

• 2.89 Entrenched provisions can only be changed by a majority vote in a public referendum or a 75-per-cent vote in parliament. Several submitters commented on what they considered the appropriate method for amending different provisions, and a few suggested that we should offer guidance on this question.
• 2.90 We do not believe that there is a prescriptive formula for determining the right method of change – to some extent, the choice will always depend on circumstance and political judgement. We do, however, offer some thoughts on factors that may be taken into account when determining the appropriate method:
  • For complex and highly technical matters, parliamentary consideration may be preferable to a referendum.
  • Referendums may not be suitable for issues affecting individual and minority rights.
  • Referendums may be suitable for issues that expand parliamentary power or fundamentally alter the voting system.
  • All referendums should be supported by well-resourced and independent public information campaigns.

Other considerations

• 2.91 We previously considered the Royal Commission’s suggestion to entrench the substance of particular aspects of electoral law rather than entrench specific provisions. The appeal of this approach is that it would entrench the essence or principle underlying the matters being protected. However, we do not recommend it because we are concerned it might give rise to uncertainty about the precise scope of what is entrenched.
• 2.92 The entrenched provisions are not doubly entrenched, meaning that the entrenching provision (section 268 of the Electoral Act) is not itself entrenched. As a result, section 268 could be repealed or amended by legislation passed by a simple majority and the entrenched provisions subsequently changed or repealed with a simple majority.

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• 2.93 We do not consider double entrenchment is needed, as the current approach to entrenchment has developed into a constitutional convention and has been well respected by subsequent parliaments.

The Panel recommends:

R3. Adding to the currently entrenched provisions by entrenching:

1. the allocation of seats in parliament and the party vote threshold

2. the Māori electorates

100. the right to vote

4. the right to stand as a candidate

5. the independence of the Electoral Commission, including the process for removing its members

6. the process for the report of the Representation Commission on electoral boundaries to take legal effect.

Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi ⁸⁷

3. Upholding te Tiriti o Waitangi / the Treaty of Waitangi

• 3.1 Our Terms of Reference require us to consider how to ensure New Zealand continues to have an electoral system that upholds te Tiriti o Waitangi / the Treaty of Waitangi (te Tiriti / the Treaty).
• 3.2 To make this assessment we first set out a summary of the historical context surrounding te Tiriti / the Treaty. We discuss the ways it has been upheld or breached over time and what this legacy means for our current electoral system.

Historical context

• 3.3 Before colonisation, Aotearoa New Zealand was governed by Māori in accordance with a system of laws and rules. A key concept in Māori governance was tikanga – law, practices and values.¹ Tikanga was developed over centuries of Māori culture and society in Aotearoa New Zealand. Tikanga provided the core values and principles that governed Māori political, legal, economic and social behaviour.
• 3.4 At the start of the nineteenth century, European settlers began to arrive in Aotearoa New Zealand. Initially settlers tended to abide by the system of tikanga- based governance. However, as increasing numbers of settlers arrived and their demands for land increased, this placed pressure on tikanga-based governance. In He Whakaputanga o te Rangatiratanga o Nu Tireni (the Declaration of Independence, signed in 1835) Māori announced their sovereignty and independence, which was acknowledged by the British Crown.²

¹ As set out in Gallagher, T., 2008. Tikanga Māori Pre-1840. Te Kāhui Kura Māori, 0(1) – ‘tikanga has been defined in many ways. Judge Eddie T. Durie defines it as the ‘values, standards, principles or norms to which the Māori community generally subscribed for the determination of appropriate conduct’ ... Chief Judge Joe Williams describes tikanga as ‘the Māori way of doing things – from the very mundane to the most sacred or important fields of human endeavour’. No one definition is completely correct or wrong.’

² For further information refer to the Waitangi Tribunal, 2014. He Whakaputanga me te Tiriti – The Declaration and the Treaty: The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry, Wellington: Legislation Direct.

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• 3.5 British resident James Busby was instrumental in negotiations but was also concerned about the increasingly lawless behaviour of British settlers. His assessment was that further controls were required on the British settlers to ensure peace. Māori were interested in the British Government establishing control over their own people and having Māori mana and rangatiratanga formally acknowledged and reaffirmed.

Te Tiriti o Waitangi / the Treaty of Waitangi

• 3.6 In 1839 the British Government sent William Hobson to Aotearoa New Zealand. He had instructions to establish a British colony, impose British law on settlers, and to establish the sovereignty of the British Crown. Hobson drafted an agreement between the Crown and Māori that would fulfil this objective. This agreement made certain promises to Māori.
• 3.7 There are two versions of this agreement: one is the Treaty (the English language version); the other is te Tiriti (the Māori language version). Te Tiriti purported to be a te reo Māori translation of the Treaty. It was not an accurate translation.
• 3.8 The agreement that was presented to rangatira at Waitangi on 5 February 1840 was the Māori language version: te Tiriti. The vast majority of rangatira signed the te reo Māori version.
• 3.9 There are several fundamental differences of meaning between the two texts. These are often debated but can be summarised as:
  • The agreement signed by most Māori stated the Crown obtained “kāwanatanga” (the authority to govern). In contrast, the English version stated the Crown obtained “sovereignty” (supreme power, authority or rule

– total control over the country).

• The agreement signed by most Māori reaffirmed their “tino rangatiratanga over their whenua, kainga and taonga” (unqualified exercise of chiefly authority over their lands, homes and all their treasures). In contrast, the English version only promised Māori the “full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties”.

• 3.10 While it is beyond the scope of this report to examine the detailed implications of

these two versions of the agreement between the Crown and Māori, the issues that

Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi ⁸⁹

arise from the differences between them are helpfully summarised by the Waitangi Tribunal:³

...Britain’s representative William Hobson and his agents explained the Treaty as granting Britain ‘the power to control British subjects and thereby to protect Māori’, while rangatira were told that they would retain their ‘tino rangatiratanga’, their independence and full chiefly authority.

Though Britain went into the treaty negotiation intending to acquire sovereignty, and therefore the power to make and enforce law over both Māori and Pākehā, it did not explain this to the rangatira. Rather, in the explanations of the texts and in the verbal assurances given by Hobson and his agents, it sought the power to control British subjects and thereby to protect Māori.

...

The rangatira who signed te Tiriti o Waitangi in February 1840 did not cede their sovereignty to Britain. That is, they did not cede authority to make and enforce law over their people or their territories.

The rangatira agreed to share power and authority with Britain. They agreed to the Governor having authority to control British subjects in New Zealand, and thereby keep the peace and protect Māori interests.

The rangatira consented to the treaty on the basis that they and the Governor were to be equals, though they were to have different roles and different spheres of influence. The detail of how this relationship would work in practice, especially where the Māori and European populations intermingled, remained to be negotiated over time on a case-by-case basis.

Māori political representation

• 3.11 The Crown, bound by te Tiriti / the Treaty, had (and has) a duty to recognise and

respect Māori expressions of tino rangatiratanga. It has not done so.⁴

• 3.12 In the second half of the nineteenth century, Māori sought to develop their own institutions and expressions of political power in accordance with the guarantee of tino rangatiratanga. These included, for example, the regional parliaments set up by hapū and iwi around the country, and the Kotahitanga movement in the 1890s which strove to establish a national Māori parliament.

³ Waitangi Tribunal, above n 2.

⁴ These historic breaches are exemplified by the experience of te Raki Māori. See page 1618 onwards from Waitangi Tribunal, 2022. Tino Rangatiratanga me te Kāwanatanga: The Report on Stage 2 of the Te Paparahi o Te Raki Inquiry, [pre-publication version] Wellington: Waitangi Tribunal.

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• 3.13 Ultimately, the Crown steadfastly refused to recognise and support any of these institutions or expressions of tino rangatiratanga. As a result, Māori then sought to improve Māori representation in parliament as “their last vestige of a lost autonomy”.⁵
• 3.14 The Crown was also obliged to ensure that Māori were politically represented in the kāwanatanga sphere (that is, parliament and its precursors) in a manner that was fair and equitable. It did not. Instead, among other actions, the following took place:⁶
  • The New Zealand Constitution Act 1852 enfranchised all males aged 21 or over, subject to a property test. However, this property test excluded almost all Māori men due to the different legal status of Māori land. This was despite Māori being both a majority of the population and owning the majority of the land at the time.
  • No provision was made for Māori representation in parliament until four Māori electorates were introduced in 1867. However, these Māori electorates provided far fewer representatives than Māori were entitled to on a population basis.
  • Unlike the number of general electorate seats, which increased based on population growth, the number of Māori electorate seats remained fixed at four until 1993 – under the First-Past-the-Post system, this meant the vote of a Māori voter in a Māori electorate was worth less than those in the general electorates.
  • Until 1975 only so-called “half-castes” (for example, those with one Māori and one European parent) were allowed to choose whether to vote in a general electorate or a Māori electorate. Otherwise, Māori were required to vote in the less-representative Māori electorates.
  • Until 1967 only Māori could stand for election in the Māori electorates, while Māori were prohibited from standing for election in the general electorates. Effectively, this limited the number of Māori who could be elected to parliament to four.
  • The secret ballot (now a fundamental electoral right) was introduced in European seats in 1870, while the secret ballot was not introduced for the Māori electorates until almost 70 years later.

⁵ Sorrenson, M., 1986. Appendix B: A History of Māori Representation in Parliament. In Report of the Royal Commission on the Electoral System: Towards a Better Democracy, Wellington: The Royal Commission on the Electoral System.

⁶ For a fuller account, refer to: Parliamentary Library, 2009. The Origins of the Māori Seat Research

Paper, Wellington: New Zealand Parliament.

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Te Tiriti / the Treaty and the electoral system today

The importance of constitutional change

• 3.15 These examples show that there is a legacy of the Crown failing to uphold the right of equitable participation of Māori in the electoral system and rejecting proposals for expressions of tino rangatiratanga. Both actions were contrary to what was agreed in te Tiriti / the Treaty.
• 3.16 We heard clearly and forcefully from Māori communities that the Crown’s legacy of breaching Māori political rights impacts perceptions of the electoral system to this day. These perceptions have been compounded by the ongoing and unresolved tension between the guarantee of tino rangatiratanga for Māori and the Crown’s exercise of kāwanatanga.
• 3.17 We heard that for Māori this continues to be a significant and ongoing concern. Many raised work that has already been done by Māori – including with the Crown

– to suggest ways for establishing constitutional arrangements that uphold their political rights (such as the Constitutional Conversation⁷ or Matike Mai⁸). However, despite the devotion of much time and effort by Māori, these issues have not yet been appropriately acknowledged and addressed by the Crown. We heard this frustration in our engagement with many Māori who consistently expressed a strong view that broader constitutional change was their top priority rather than modernising the electoral system.

• 3.18 These issues go to the heart of Aotearoa’s constitution and raise questions about whether a Westminster-style unicameral parliament can ever be said to uphold the guarantee of tino rangatiratanga in te Tiriti / the Treaty.
• 3.19 While answering such questions is beyond our Terms of Reference, these issues influence Māori perceptions of the electoral system and, therefore, the objectives we were asked to consider (such as rates of participation and public confidence). We, therefore, recognise that the electoral system in and of itself may not be able to uphold tino rangatiratanga in a way that gives effect to te Tiriti / the Treaty without broader constitutional changes. We encourage further partnership between the Crown and Māori in considering how best to properly acknowledge and address these issues of constitutional significance.

⁷ Constitutional Advisory Panel, 2013. New Zealand's Constitution: A Report on a Conversation He

Kōtuinga Kōrero mo Te Kaupapa Ture o Aotearoa, Wellington: Constitutional Advisory Panel.

⁸ Independent Working Group on Constitutional Transformation, 2015. He Whakaaro Here

Whakaumu Mō Aotearoa / The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation.

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The positive impact of an improving Māori/Crown relationship

• 3.20 At the same time, we also recognise that Māori/Crown relations have come a long way. There has been a slow but positive evolution in how te Tiriti / the Treaty has been recognised by the Crown. In particular:
  • The government has established a ministerial portfolio for Māori/Crown relations and established a dedicated agency, Te Arawhiti, to support the portfolio. The purpose of Te Arawhiti is to help guide the Māori/Crown relationship from historical grievance towards true Treaty partnership, and to help guide the Crown, as a Treaty partner, across the bridge into te ao Māori.
  • The new Public Service Act 2020⁹ specifies that the role of the public service includes supporting the Crown in its relationships with Māori under te Tiriti

/ the Treaty.

• Cabinet has endorsed and published guidance on including te Tiriti / the Treaty provisions in legislation and guidance for policy makers on te Tiriti / the Treaty implications of their work.¹⁰
• Recent changes to legislation fostered the ability of local authorities to establish Māori wards or constituencies.¹¹ This is one way for councils to honour the principle of partnership committed to in te Tiriti / the Treaty because they guarantee that Māori will be represented at council.
• The new resource management system incorporates te ao Māori, mātauranga Māori, and ensures Māori participation in planning and decision-making at national, regional and local levels.¹²

• 3.21 It is our task to update the electoral system and electoral law to recognise te Tiriti

/ the Treaty.

⁹ Public Service Act 2020.

¹⁰ Refer to Cabinet Office, 2019. Cabinet Office Circular CO (19) 5 Te Tiriti o Waitangi / Treaty of Waitangi Guidance. Wellington: Department of the Prime Minister and Cabinet.

¹¹ Refer to the Local Electoral (Māori Ward and Māori Constituencies) Amendment Act 2021, which removed all mechanisms for holding binding polls on Māori wards.

¹² See the following publication: Ministry for the Environment, 2022. Te whakahou i te whakahaere

rawa: He tūranga tōtika ake mā te Māori Resource management reform: A more effective role for

Māori, Wellington: Ministry for the Environment.

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Our approach to considering te Tiriti / the Treaty

• 3.22 It is within the spirit of a maturing and evolving Māori/Crown relationship that we

have approached our assessment of whether the electoral system upholds te Tiriti

/ the Treaty.

• 3.23 To do so consistently and transparently, we have identified three considerations to apply when Tiriti / Treaty issues arise during our review of the electoral system.
• 3.24 These considerations (see Figure 3.1) are derived from te Tiriti / the Treaty itself and interpretations of it expressed by the courts and the Waitangi Tribunal (its principles). This approach is not meant to be exhaustive and broader considerations are incorporated where relevant.

Figure 3.1: Te Tiriti o Waitangi / the Treaty of Waitangi assessment framework

Our initial view

• 3.25 In our interim report we recommended:
  • Requiring decision-makers to give effect to te Tiriti o Waitangi / the Treaty of Waitangi and its principles when exercising functions and powers under the Electoral Act. This obligation should apply generally across the Act and be explicitly included in the Electoral Commission’s statutory objectives.

⁹⁴ Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi

• That the Electoral Commission prioritises establishing Māori governance over data collected about Māori in the administration of the electoral system.

• 3.26 We also made several other detailed recommendations that will better uphold te Tiriti / the Treaty, including:
  • entrenching the Māori electorates (Chapter 2)
  • lowering the voting age (Chapter 7)
  • removing the disqualification of prisoners from the right to vote (Chapter 7)
  • removing restrictions on when the Māori electoral option can be exercised

(Chapter 8)

• funding programmes that are by Māori for Māori to increase voter

participation (Chapter 11)

• establishing Te Pūtea Whakangāwari Kōrero ā-Tiriti / Treaty Facilitation Fund to facilitate party and candidate engagement with Māori communities, in ways appropriate for Māori (Chapter 13)
• requiring that the Electoral Commission’s board collectively has skills, experience, and expertise in te Tiriti o Waitangi / the Treaty of Waitangi, te ao Māori and tikanga Māori (Chapter 15)
• adding the current Māori members of the Representation Commission as members for determining general electorate boundaries, not just the Māori electorate boundaries (Chapter 17)
• when considering the general electorate boundaries requiring the Representation Commission to consider the impacts on communities of interest for Māori (Chapter 17).

• 3.27 We also identified some areas where there were potentially tensions between our interim recommendations and the rights and interests that are protected under te Tiriti / the Treaty, including the impacts of:
  • removing the one-electorate seat threshold (Chapter 4)
  • a referendum on extending the term of parliament (Chapter 5)
  • restricting the ability of organisations to make donations to political parties (Chapter 13).
• 3.28 These matters are discussed further in the cited chapters.

Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi ⁹⁵

Feedback from second consultation

Breaches of the Crown’s obligations

• 3.29 We heard anecdotal and research evidence that many Māori are treated unfairly or

discriminated against when voting. Some of these examples were:

• polling booths not having a Māori roll or voting papers for Māori electorates
  • voters (Māori and non-Māori) on the general roll being told they are unable to vote for a ‘Māori party’ if they are not on the Māori roll
  • Māori casting invalid votes due to errors by polling staff
  • staff being unable to find the Māori roll and correct voting forms, with Māori

having to wait to cast, and/or leave (due to time) before casting, their vote

• Māori voters wanting to change rolls and being unable to do so.

The statutory requirement to uphold te Tiriti / the Treaty

• 3.30 Most submitters who made a detailed written submission (including academics, Māori organisations, and civil society groups) supported the inclusion of a general Tiriti / Treaty clause in the Electoral Act.
• 3.31 However, some other submitters were concerned that this clause alone would not drive the desired level of operational change at the Electoral Commission. An academic suggested a more descriptive Tiriti / Treaty clause (which we discuss further below) would offer stronger direction to the Electoral Commission. Some said they did not know what giving effect to te Tiriti / the Treaty and its principles looks like in practice. Additional structural suggestions were made, including:
  • establishing dedicated Māori roles or entities (such as a deputy chief electoral officer Māori role, or a Māori Electoral Commission)
  • creating a national Māori representative forum to provide expert advice

directly to the Electoral Commission

• requiring the Electoral Commission to publish a comprehensive Tiriti o Waitangi policy and strategy.

• 3.32 On the other hand, comments left through our online form were largely opposed to or did not see the relevance to the electoral system of upholding te Tiriti / the Treaty. Some other submitters also held these views. Many individuals incorrectly interpreted our recommendations as creating additional voting rights or privileges for Māori.
• 3.33 Some of these online submitters were also particularly concerned about references to Tiriti / Treaty principles, which they thought should be explicitly defined in the legislation.

⁹⁶ Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi

Establishing Māori data governance

• 3.34 Only a few submitters commented on our proposal for establishing Māori governance over Māori electoral data. Most submitters supported Māori data governance, stating it:
  • could improve the trust and confidence Māori have in the electoral system
  • recognises that for Māori, data is a taonga and should therefore be administered by Māori under Article 2 of te Tiriti / the Treaty.
• 3.35 The Privacy Commissioner noted that any use of data must strike an appropriate balance between individual privacy and collective good and that individual Māori should have choices about how their data is managed and used.
• 3.36 Two submitters supported establishing a dedicated Māori data officer. The Privacy Commissioner thought such a role would accelerate implementation of Māori data governance. Another submitter noted there were a lot of options for this role – including that it could sit outside the Electoral Commission and operate broadly across government.
• 3.37 In contrast, the online comments we received expressed reservations or were opposed to establishing Māori governance over Māori electoral data. Questions were raised about how to ensure the integrity of electoral data and how to manage privacy risks.

Changes to the Māori affiliation service

• 3.38 The Māori affiliation service was established via amendments to the Electoral Act in 2002 to assist people of Māori descent to make contact with their iwi, if they wished for assistance to do so. The Tūhono Trust has been appointed as a “designated body” under the Act to undertake this task in accordance with requirements of the Act.¹³
• 3.39 With a person’s consent, the Electoral Act allows information on a Māori voter to be passed on to the Tūhono Trust, which then connects the person’s information to their nominated iwi. In relation to the Māori affiliation service, the Tūhono Trust’s submission suggested:
  • removing the requirement for the Electoral Commission to seek consent from Māori electors to share their contact information for the purposes of the Māori affiliation service
  • removing the prohibition on the creation and maintenance of information

on whakapapa via the Māori affiliation service

¹³ Electoral Act 1993, section 111D.

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• removing the requirement for iwi and Māori organisations to be listed in regulations before they can receive data and instead allow information on Māori electors to be shared with any iwi included in the Stats NZ iwi classification list.

Other issues raised

• 3.40 A number of other issues were raised by submitters that relate the Crown’s Tiriti / Treaty obligations. These are discussed in later sections of the report, but for reference we note that we recommend:
  • stronger controls and approval processes when people wish to access the electoral rolls for research purposes (Chapter 16)
  • stronger safeguards over the calculation of the Māori electoral population if

data outside the census is to be used in future (Chapter 17).

Our final view

A statutory obligation to uphold te Tiriti / the Treaty

• 3.41 Upholding te Tiriti / the Treaty should be central to the administration of the electoral system, given its constitutional significance.
• 3.42 We maintain the view there should be an explicit requirement in the Electoral Act for decision-makers to give effect to te Tiriti / the Treaty and its principles when exercising functions and powers under the Act (known as a general Tiriti / Treaty clause). We are also confirming our recommendation that this obligation is explicitly included in the Electoral Commission’s statutory objectives.
• 3.43 In making this recommendation we considered recent guidance on providing for te Tiriti / the Treaty in legislation.¹⁴ That guidance notes the most important factor is to identify the outcomes sought by including a reference to te Tiriti / the Treaty in legislation.
• 3.44 Our objective is to recognise the centrality of te Tiriti / the Treaty to our electoral system. Te Tiriti / the Treaty is the founding document of our democracy. Free and fair elections are fundamental to ensuring the health of that democracy. And those elections can only be free and fair when inequities facing Māori voters (as described above) are eliminated.
• 3.45 We are recommending a general clause to ensure an enduring focus on improving Māori voter participation that has the flexibility to adapt as circumstances and priorities for Māori change.

¹⁴ Te Arawhiti, 2022. Providing for the Treaty of Waitangi in Legislation and Supporting Policy Design,

Wellington: Te Arawhiti.

⁹⁸ Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi

• 3.46 Our general Tiriti / Treaty clause is complemented by the other more specific recommendations we have made. These are cited above, and propose concrete improvements that would better uphold the Crown’s obligations under te Tiriti / the Treaty.
• 3.47 In making these recommendations we acknowledge work already undertaken by the Electoral Commission to better reach Māori voters. The new obligations we recommend will ensure the Electoral Commission has clear statutory authority to continue this work. A Tiriti / Treaty clause will explicitly authorise it to have an ongoing focus on its Tiriti / Treaty obligations when undertaking its duties and prioritising its resources.
• 3.48 In practice, we expect the impact of our recommended Tiriti / Treaty clause would be:
  • the Electoral Commission continues and improves its direct engagement with Māori as iwi, hapū and individuals through a range of mechanisms, including Māori advisory groups
  • barriers to Māori participation in the electoral system at all levels are identified and eliminated
  • Māori voters, candidates, and parties would be empowered to exercise political power through the electoral system equitably, and disparities in participation rates would begin to fall.
• 3.49 We believe this new general obligation, alongside our more specific recommendations, would ensure the electoral system better meets the needs of Māori and will better uphold the Crown’s obligation under te Tiriti / the Treaty. Moreover, these changes would strengthen Aotearoa New Zealand’s democracy for all. A democracy where all communities feel they can fully participate and are heard builds trust, confidence and, ultimately, social cohesion.

Ensuring that progress is swift and transparent

• 3.50 During our second consultation, we heard concerns about whether the scale and pace of change arising from our interim recommendations will be sufficient. To provide greater assurance, we are now also recommending that the Electoral Commission is required to publish a Tiriti / Treaty policy and strategy. The strategy should set out how the Commission will:
  • improve its staff capacity and capability in the areas of Te Tiriti, tikanga,

and te reo Māori

• improve electoral participation of Māori as voters and electoral officials
• honour the provisions and principles of te Tiriti / the Treaty as they relate to electoral administration more generally (see, for example, Māori data governance issues below).

Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi ⁹⁹

• 3.51 The Electoral Commission should be required to:
  • engage with Māori in creating the strategy, have regard to the feedback received, and publish a summary of this feedback in the strategy. This will uphold the principle of partnership and informed decisions
  • report on the progress as part of its annual report and its statutory obligation to publish a post-election report. This will allow Māori to hold the Electoral Commission to account for what it has achieved.

The importance of Māori data governance

• 3.52 In administering the electoral system, data about Māori is collected and used (for example, as part of the compulsory voter enrolment, and for the Māori electoral option). We heard that for Māori, data is a taonga (under Article 2 of Te Tiriti / The Treaty) with immense value. To provide but one example, a person’s name can carry great mana, as well as holding wider cultural and historical significance, such as links to tūpuna. The guarantee of tino rangatiratanga over taonga means that Māori data should be governed by and for Māori. This ensures Māori data is stored, transferred and applied in accordance with tikanga and to the benefit of those to whom it belongs.
• 3.53 As such, we recommend that the Electoral Commission, in line with its new objective to give effect to te Tiriti / the Treaty, prioritises establishing Māori governance over Māori electoral data. The Electoral Commission should do this in partnership with Māori communities and Māori data experts.
• 3.54 In doing so, the Electoral Commission should be guided by the Māori data governance model recently published by Te Kāhui Raraunga.¹⁵ This model has been specifically designed to assist the public service to implement Māori data governance in a way that is values-led, centred on Māori needs and priorities, and informed by research.
• 3.55 If implemented, this model would address some of the concerns raised by submitters who thought there may be risks in establishing Māori data governance. The model demonstrates that Māori data governance would strengthen the safety and integrity of all electoral data. This is demonstrated by some of the values that underpin the model – namely, to:
  • nurture data as a taonga
  • use data for good
  • be accountable.

¹⁵ Kukutai, T., Campbell-Kamariera, K., Mead, A., Mikaere, K., Moses, C., Whitehead, J. & Cormack, D., 2023. Māori data governance model, Rotorua: Te Kāhui Raraunga.

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• 3.56 These principles are universal – they will ensure all voters’ information is appropriately protected. Protection will strengthen trust in the electoral system, which underpins the confidence of voters to participate.
• 3.57 As a minimum first step, implementation would require the Electoral Commission to establish Māori oversight and participation as immediate priority areas, such as safeguards over access to the electoral rolls (Chapter 16).
• 3.58 This would likely require the Electoral Commission to work directly with Māori on how to establish the functions of appropriate and effective Māori governance. We suggest an external and independent panel of Māori data experts would be an appropriate initial step. Such a group could independently assess the Electoral Commission’s current practices and advise on the appropriate changes to roles, functions, and oversight mechanisms needed for successful Māori data governance.
• 3.59 To support implementation, we also considered whether establishing a statutory role or function relating to Māori data governance would be necessary to include in the Electoral Act. While there would be some benefits in doing so, the most important factor is to ensure the Electoral Commission dedicates sufficient funding and resourcing to establish Māori data governance as a priority. We are, therefore, strengthening our interim recommendation by requiring that the Electoral Commission prioritises establishing Māori data governance and is funded by the government to do so. Nevertheless, a dedicated role is worthy of exploration in future.
• 3.60 Relevantly, there is already broader work underway to consider establishing an all-of-government “Māori Chief Data Steward”.¹⁶ This position would align with the role of the Government Statistician and Government Chief Data Steward but apply a te ao Māori perspective to decision-making about Māori data.
• 3.61 It will be critical that the Electoral Commission’s work to establish Māori data governance has regard to the direction of this broader co-designed approach. However, seeking alignment should not be a reason for the Electoral Commission to delay establishing Māori data governance over Māori electoral data.

¹⁶ A detailed outline of this work programme can be found at the government’s data website: Data.govt.nz, 2021. Co-designing Māori data governance. [Online] Available at: https://data.govt.nz/toolkit/data-governance/maori/ [Accessed October 2023]. This work is part of the Mana Ōrite Work Programme between Stats NZ and the Data Iwi Leaders Group (DILG) of the National Iwi Chairs Forum (NICF), which was created to ensure the government’s data processes uphold Te Tiriti o Waitangi/The Treaty of Waitangi.

Final Report | Chapter 3: Upholding te Tiriti o Waitangi / the Treaty of Waitangi ¹⁰¹

Changes to the Māori affiliation service

• 3.62 We respond to each of the Tūhono Trust’s recommendations below:
  • Remove consent requirement

We agree in principle that the Crown should remove barriers to Māori accessing and benefiting from any Māori data it collects. However, this objective must be balanced against the rights to full, prior, and informed consent, which the Māori data governance model notes is “essential to the ethical use of Māori data”.

This is particularly important because data on Māori descent in the electoral system is compulsorily acquired by the state as every eligible voter must enrol. In these circumstances, we consider that consent should always be required for discretionary secondary uses of voters’ personal information (with some caveats). This is not just about the Māori affiliation service, but access to electoral information more broadly. Our recommendations to strengthen the protections around who can access the electoral roll in Chapter 16 reflect this. Our approach aligns with the submission from the Office of the Privacy Commissioner, which stated that Māori should be given choices about how their data is used.

• Remove prohibition on whakapapa

We only received one submission on this issue. The purpose of the Māori affiliation service is to connect Māori electors to iwi they affiliate with, so they can contact each other. Making this connection does not require the collection of whakapapa information and so would be a significant expansion of the Māori affiliation service. We did not hear from other Māori organisations that this expansion was necessary or desirable. We suggest that this issue be explored in the ongoing review of the Māori affiliation service, led by Te Puni Kōkiri.

• Remove requirement for recipient organisations to be listed in regulation

If consent is given by a Māori elector, the Māori affiliation service allows their details to be passed on to relevant iwi and other Māori organisations. Before receiving any information, however, a recipient iwi or Māori organisation must be listed in regulations made under the Electoral Act 1993.¹⁷

¹⁷ The Electoral (Iwi Organisation and Other Māori Organisation) Regulations 2018 define what organisations can receive information through the Māori affiliation service.

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Tūhono Trust thought this process was unnecessary and that instead the Electoral Act should allow information on Māori electors to be shared with any iwi included in the StatsNZ iwi classification list.¹⁸

While we recognise that the current approach is inflexible, it is an important safeguard over any expansion of who can receive electoral data via the Māori affiliation service. We did not hear any concerns from iwi about the current process. Nevertheless, we encourage the government to engage regularly with Tūhono and other Māori organisations to identify if the regulations need updating (perhaps after any updates StatsNZ makes to the iwi classifications). The iwi classifications are primarily a statistical standard, so this additional step is an appropriate safeguard.¹⁹

The Panel recommends:

R4. Requiring decision-makers to give effect to te Tiriti o Waitangi / the Treaty of Waitangi and its principles when exercising functions and powers under the Electoral Act. This obligation should apply generally across the Act and be explicitly included in the Electoral Commission’s statutory objectives.

R5. Requiring the Electoral Commission to publish a Tiriti / Treaty policy and strategy and report on progress as part of its statutory obligation to publish a post-election report.

R6. The Electoral Commission prioritises establishing Māori governance over data collected about Māori in the administration of the electoral system, and is funded by government to do so.

¹⁸ This is a statistical list of iwi and iwi-related groups throughout New Zealand that are recognised by Stats NZ Tatauranga Aotearoa. It provides a standard approach for grouping and reporting iwi and iwi-related groups.

¹⁹ Stats NZ, 2018. Purpose of the Iwi Statistical Standard and Classification. [Online] Available at: https://www.stats.govt.nz/methods/purpose-of-the-iwi-statistical-standard-and-classification [Accessed October 2023].

PART 2

The Voting System

This part covers:

• representation under MMP (Chapter 4)
• the parliamentary term and setting the election date (Chapter 5)
• vacancies in parliament (Chapter 6)

¹⁰⁴ Final Report

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report | Chapter 4: Representation Under MMP ¹⁰⁵

4. Representation Under MMP

Composition of parliament

• 4.1 In 1993, Aotearoa New Zealand moved to the Mixed Member Proportional system (MMP), following a Royal Commission report on the electoral system and endorsement through public referendums. The first MMP election was held in 1996.
• 4.2 Under this voting system, people have two votes: one for the candidate they want to represent the area they live in and one for the political party they want to represent them.
• 4.3 Our parliament typically has 120 seats, made up of a combination of electorate seats and list seats. Currently, there are 65 general electorates and seven Māori electorates.¹ This means that, in the absence of any overhang seats, there would be 48 list seats.²
• 4.4 Both types of seats are important: electorate seats ensure local areas are represented, and list seats are primarily used to ensure the seats won by a party reflect its share of the nationwide party vote. List seats may also be used to represent diverse interests and groups.

Allocation of seats

• 4.5 After each general election, the Electoral Commission follows the Sainte-Laguë method of seat allocation, and the steps prescribed in sections 191 to 193 of the Electoral Act, to determine the number of seats that each party is entitled to.³

¹ The number of electorates can change. The Representation Commission reviews and adjusts electorate boundaries after each 5-yearly population census. The next boundary review will take place before the 2026 General Election.

² Following the 2023 General Election, the 54^th Parliament had an overhang of two seats. A further seat was added after the Port Waikato by-election on 25 November 2023, which increased the number of list seats to 51 and the total number of seats to 123.

³ Currently, the law requires the allocation of 120 seats amongst qualifying parties using the Sainte- Laguë method. There is not a dedicated provision for how seats in parliament should be allocated if the election for one or more electorate seat is cancelled due to the death of a candidate. We discuss this briefly at the end of this chapter.

¹⁰⁶ Final Report | Chapter 4: Representation Under MMP

• 4.6 Electorate seats go to the candidates who win the most votes in each electorate. Candidates can represent a political party or be independent. List seats are added to any electorate seats won by each party until its share of seats in parliament reflects its proportion of the nationwide party vote, so long as it passed one of either:
  • the party vote threshold: where a party receives at least five per cent of the nationwide party vote – this was about 142,500 votes in the 2023 election, or
  • the one-electorate seat threshold: where the party’s candidates win at least

one electorate seat.⁴

• 4.7 Where a party does not pass either threshold, it receives no list seats. The party votes for these parties are not included in the list seat allocation process.
• 4.8 The total number of seats a qualifying party is entitled to – electorate and list seats combined – reflects its share of the nationwide party vote. The party’s entitlement is first filled by any electorate seats its candidates have won. Any remaining seats go to candidates from the party list, in the order that the party ranked them before the election (excluding any successful electorate candidates).
• 4.9 Where a party wins more electorate seats than it would be entitled to through its share of the party vote, it keeps the extra seat or seats, and the size of parliament is increased by that number of seats until the next election.⁵ These are called overhang seats. Further seats are allocated to other parties until the next election to make sure the number of seats those parties have remain in proportion to their share of the nationwide vote. However, if an electorate seat is won by an independent candidate, no additional seats are allocated.

Our consideration of MMP

• 4.10 The way seats are allocated determines the composition of parliament. Any changes to the MMP rules need to consider how they work in combination; changing or removing one component is likely to affect how the others operate, influencing voting habits and impacting election outcomes.
• 4.11 In the sections below, we consider the party vote threshold, the one-electorate seat threshold, overhang seats, and the ratio of electorate to list seats in turn. However, when coming to our recommendations, we considered the effect of each proposed change on the others.

⁴ Electoral Act 1993, section 191(4).

⁵ This right is protected by section 192(5) of the Electoral Act 1993. It provides that a party shall not receive any allocation of list seats if its representation through electorate seats is equal to or greater than the share of the party vote it would be entitled to, but that its electorate seats will not be affected or reduced accordingly.

Final Report | Chapter 4: Representation Under MMP ¹⁰⁷

• 4.12 We have also considered their overall impact on proportionality,⁶ representation (including Māori representation), the effectiveness of parliament, and the ability to form stable governments.
• 4.13 With these interactions in mind, our recommendations in this part of the report form a package and should be read together. We also note our recommendation in Chapter 2 to entrench the calculation and allocation of seats in parliament and the party vote threshold.
• 4.14 As we note in the Introduction, this report was being finalised during the 2023 general election. Where possible, we have incorporated any information that was available about election results into relevant parts of this chapter. However, that information came too late to be part of our consideration of MMP, including our modelling to assess the impact of our recommendations on previous election results.

Party vote threshold

• 4.15 Under MMP, the primary representation threshold for parties is to win five per cent of the party vote. (The exception to this rule is where a party wins an electorate seat, which we discuss in One-electorate seat threshold, below.)
• 4.16 The party vote threshold allows parties to enter parliament without needing to win an electorate seat. In the 10 MMP elections so far, from 1996 to 2023, between three and six parties have crossed this threshold.
• 4.17 At the same time, the party vote threshold is a barrier to smaller or newly formed parties entering parliament. Permitting such parties in parliament would be more representative of voters’ preferences. However, a proliferation of too many parties in parliament could lead to difficulties forming governments, unstable governing arrangements, and ineffective parliaments.
• 4.18 The party vote threshold aims to balance these two competing factors:
  • a parliament that represents a wide range of interests
  • a parliament that is stable enough to allow for effective government and law-making.
• 4.19 To some extent, any representation threshold represents a compromise between these competing considerations.

⁶ Proportionality is the degree to which a party’s share of the party vote corresponds with that party’s share of the seats in the House.

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Earlier recommendations

1986 Royal Commission on the Electoral System

The Royal Commission recommended:

• setting the party vote threshold at four per cent. It considered five per cent as “too severe” a barrier for new and emerging parties
• no threshold for parties primarily representing Māori interests (although this was

recommended in the context of wider constitutional change that did not take place).

1993 Electoral Reform Bill

When the Bill that established MMP was introduced into the House, it set the party vote threshold at four per cent. The Select Committee report on the Bill recommended raising the threshold to five per cent but did not give a reason for this change.

2001 Justice Select Committee Inquiry into the Review of MMP

There was no agreement between the parties on the threshold, and no recommendation was made.

2012 Electoral Commission Review of MMP

The Commission:

• advised that the five per cent threshold was higher than it needed to be

• recommended it was lowered to four per cent. It thought this lowering could be done without risk to effectiveness or stability
• argued that reducing the threshold to three per cent could be implemented without significant risks, but that would be a step too far at that stage
• considered that the new threshold of four per cent be reviewed and reported on after three general elections.

The Commission’s view was that a party vote threshold below three per cent would be too large a departure from the balanced approach recommended by the Royal Commission and affirmed in referendums. It stated it would be contrary to public opinion, and in effect constitute a new voting system.⁷

⁷ Electoral Commission, 2012. Report of the Electoral Commission on the Review of the MMP Voting System, Wellington: Electoral Commission, p. 16.

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Is there a case for change?

Arguments against change

• 4.20 In the first consultation, many submitters who answered our question about the party vote threshold supported the status quo. These submitters thought that the five per cent threshold ensured that parties represented in parliament appeal to significant numbers of people, which avoids fragmenting the political system and undermining the effectiveness of parliament and government.
• 4.21 Other arguments against changing the party vote threshold include:
  • Governments and parliaments could become less effective with a lower threshold if more parties are involved in our governing arrangements. For example, more parties could lead to coalition arrangements that do not last the term of parliament. It could be harder for a government to agree on policies and take decisive action where appropriate.
  • A lower threshold could also lead to more deal-making between parties seeking to form a coalition government, either in electorate seats or after the election. This behaviour may be unpopular with voters.
  • A lower threshold may hamper the ability of parliament to function effectively. For example, a large number of parliamentary parties could impact on the Business Committee’s ability to agree on the parliamentary timetable. It could also fragment the opposition, decreasing its ability to counter and debate government decisions, and deliver parties with too few members to participate in parliament effectively.
  • While broad representation and having diverse voices in parliament is an important feature of our system, a lower threshold risks electing extremist parties that may not share Aotearoa New Zealand’s democratic ideals. A proliferation of such parties could detract from the effectiveness of parliament.

Arguments for change

• 4.22 Most submitters to the first consultation wanted a lower party-vote threshold, for several reasons:
  • A lower party vote threshold makes it easier for parties to enter parliament, which increases the diversity of views represented and may also increase representation of Māori and other numerical minority populations.
  • The current threshold presents a high barrier for those parties. In the four elections before 2023, only four parties crossed the five per cent threshold, while between nine and 13 parties fell below it.

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• Lowering the threshold would reduce the number of votes that do not count toward the allocation of seats and increase the representativeness of our parliaments.
• Increasing the number of parties in parliament may also increase the choice of coalition partners, providing more routes to a parliamentary majority and reducing the likelihood that any one party can decide who will govern.
• A lower threshold could still allow for the election of sufficient Members of Parliament (MPs) for a party to be able to operate effectively in parliament.

• 4.23 In its 2012 report, the Electoral Commission considered that about five MPs would be sufficient for a political party to be effective in parliament. This number of seats would be likely under a four per cent or under a 3.5 per cent threshold, for example.⁸
• 4.24 Some submitters supported a higher party vote threshold. These submitters argued the current threshold gives small parties undue influence when forming a coalition – undermining fairness in representation and potentially leading to government instability.

Our initial view

• 4.25 In our interim report, we recommended a party vote threshold of 3.5 per cent. In coming to this recommendation, we considered several different party vote thresholds, earlier reviews, the views of experts, submissions to our first consultation, data modelling, and academic research.
• 4.26 Our aim was to set the party vote threshold at the lowest possible level that would be consistent with maintaining an effective parliament and stable government, to achieve greatest representation in parliament. We acknowledged the merits of a four per cent or three per cent threshold but concluded that 3.5 per cent struck the best balance.

Feedback from second consultation

• 4.27 In the second consultation, submitter views on the party vote threshold were strong and divided but largely consistent with the arguments raised during the first consultation.
• 4.28 Submitters who supported our draft recommendation thought it would make parliament more representative of New Zealanders and their diverse political views and help build trust in our political institutions. A few submitters thought a lower party vote threshold may support more Māori MPs to enter parliament.

⁸ Ibid, p. 15.

Final Report | Chapter 4: Representation Under MMP ¹¹¹

• 4.29 Other submitters thought the threshold could be even lower (or removed altogether) and still provide for a stable government and effective parliament, but they generally considered 3.5 per cent to be a step in the right direction.
• 4.30 The Clerk of the House of Representatives noted that a threshold of 3.5 per cent may have implications for parliament’s rules and procedures, House time, and select committees, which would need to be considered as part of implementation.
• 4.31 Many submitters supported the status quo of five per cent and a few thought it should be higher. These submitters were concerned about government stability, the fragmentation of parliament, small parties having undue influence over government formation, and single-issue or extremist parties entering parliament.
• 4.32 Some submitters thought a four per cent threshold would strike a better balance between increasing representation and ensuring the effectiveness of parliament. These submitters noted that this threshold would not fragment the vote as much and would reduce the risk of extremist parties entering parliament. It is also the threshold recommended by the Royal Commission in 1986.
• 4.33 A few advocacy groups raised concerns that more parties may run and be elected to parliament on platforms that seek to marginalise some communities, and that this may be seen as legitimising those views, bringing harm to those communities. They gave examples such as a party focused on anti-migrant policies.
• 4.34 Some submitters advocated strongly for second-choice voting to be introduced for the party vote (that is, an optional “back up” vote for another party if your first- choice vote did not pass the threshold), whether the threshold is lowered or not. They differentiated this idea from a full preferential voting system and noted it may improve voter participation rates, support sincere voting rather than tactical voting, reduce the proportion of votes that go to parties that cross neither threshold, reduce barriers for small and newly established parties, and only require a simple change to the ballot paper.
• 4.35 Some submitters called for broader changes to the voting system, such as a return to First-Past-the-Post, which were out of scope of the review.

Our final view

• 4.36 In response to submitter feedback to the second consultation, we reconsidered whether a four per cent or three per cent party vote threshold would strike a better balance between a representative parliament and an effective parliament. We acknowledge the strong arguments in favour of each option, and we note these below.
• 4.37 We maintain our view that a party vote threshold of 3.5 per cent – around 100,000 votes at the 2020 and 2023 elections – is the best compromise for Aotearoa New

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Zealand at present. Political parties receiving 3.5 per cent of the party vote would be entitled to at least four seats in parliament, and most likely five.⁹

• 4.38 To some extent, any representation threshold is a compromise between competing considerations. In our view, lowering the threshold to four per cent does not go far enough in providing for a representative and proportionate parliament, while three per cent has a higher risk of ineffective and unstable governments and parliaments.
• 4.39 The current threshold presents a high barrier to small and emerging parties that has in practice operated to stop them gaining representation in parliament. A party vote threshold of 3.5 per cent would improve prospects for such parties to enter parliament, without significant risk of a proliferation of small parties in parliament. In the 10 elections since MMP was introduced, parties have only won between three per cent and 4.99 per cent of the party vote six times. The majority of parties contesting the party vote have won less than one per cent (see Figure 4.1).

Figure 4.1: The number of parties and their share of the party vote in MMP elections (1996 to 2023)

• 4.40 A 3.5 per cent threshold could increase both voter choice and the choice of coalition partners for majority parties. This might in turn increase the diversity of views represented in our parliament.
• 4.41 A lower threshold may also reduce the number of votes excluded from the process

for allocating list seats at each election (often referred to as “wasted votes”). The

⁹ Depending on the number of votes cast for parties that do not pass the party vote threshold.

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number of votes discarded from the calculation of seats in parliament is sizeable. At the 2023 general election, about 160,000 votes (5.58 per cent of valid votes) went to parties that did not meet the party vote threshold or the one-electorate seat threshold and were, therefore, not included in the allocation of list seats. This was a considerable decrease from the 250,000 votes (7.71 per cent of valid votes) in 2020 to parties that did not cross either threshold, but an increase from the 120,000 votes (4.62 per cent of valid votes) in 2017.

• 4.42 Several countries function with a threshold between two and four per cent without instability.¹⁰ Our modelling of MMP election results before 2023 supports a 3.5 per cent party vote threshold (see Table 2, Appendix 3). Lowering the threshold to 3.5 per cent would only have affected the allocation of seats in 1996, 2008 and 2014. New parties would have entered parliament in 2014 (at a 3.5 per cent threshold) and in 1996 and 2008 (at either a 3.5 per cent or a four per cent threshold) but these changes would not have been likely to affect government formation, and proportionality would have been improved.
• 4.43 These results can only give an indication because a lower threshold would likely change both voter and party behaviour. However, in general, we are confident that lowering the threshold to 3.5 per cent would improve representation without leading to a proliferation of parties, avoiding either political gridlock or instability.
• 4.44 Our final view incorporates the consideration of other options that we noted but did not recommend in our interim report. We were not persuaded in our second consultation to adopt any of these options. For completeness, we repeat them here.

Representation of Māori

• 4.45 We considered retaining the party vote threshold but waiving the threshold for parties primarily representing the interests of Māori. The 1986 Royal Commission recommended this waiver instead of retaining the Māori electorates (alongside broader constitutional change). This approach could support the representation of Māori interests in parliament.
• 4.46 However, it is difficult to identify appropriate and sufficiently clear criteria for a political party representing primarily Māori interests. Concerns about this process led to the proposal being abandoned in 1993 when parliament was considering the change to MMP.
• 4.47 We share these concerns. Problems and uncertainties with a definition could affect the structure and development of parties focused on Māori and Māori interests in unforeseen ways. For example, there may be a diversity of definitions

¹⁰ For example, Denmark has a two per cent threshold, and Austria, Norway, and Sweden have four per cent thresholds.

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of a “Māori party” in communities that do not fit the legislated definition, causing dispute amongst groups and harming Māori representation.

• 4.48 In One-electorate seat threshold, below, we discuss our recommendation to remove the one-electorate seat threshold and the impact that could have on Māori representation.

Other thresholds we considered

• 4.49 We considered retaining the five per cent threshold. In both consultations, some submitters supported this option. They felt it appropriately balanced diversity of representation and minority influence in government decision-making against the risks extremist parties might pose for the stability of government. However, we consider there is merit in a lower threshold to improve representation, and that the evidence shows the concerns around instability can be addressed.
• 4.50 We maintain our view that a threshold greater than five per cent would limit the representation of a wide range of interests, and we consider there is no evidence that a higher threshold is needed to maintain an effective parliament and stable government.
• 4.51 We heard from some submitters that the party vote threshold should be removed altogether, with all parties eligible for list seats. In practice, a default threshold of around 0.4 per cent would operate, simply because there are a limited number of seats available for allocation. With this default threshold there would be very few votes that did not count towards the final result, meaning the resulting parliaments would be highly proportional and represent a wide range of parties and viewpoints.
• 4.52 However, this default threshold would likely lead to numerous parties being represented in parliament, including small parties with very limited nationwide support. This outcome would fragment and could render ineffective both parliament and government. For example, in 2020 a party could have won a seat in parliament with as few as 12,000 votes, which likely would have resulted in 10 of the 17 parties contesting the party vote being elected to parliament (four more parties than the actual result).
• 4.53 We acknowledge the consistent support for a four per cent threshold from the Royal Commission, the Electoral Commission, the Justice Select Committee, and by some academics and submitters to this review. Lowering the threshold is often cited as the first of two steps, with a subsequent decision about whether it can be lowered further. A four per cent threshold would have made a significant difference to representation at the time that the Royal Commission recommended it. However, now with the advantage of 10 MMP election results to consider, we think that four per cent – requiring approximately 114,000 votes at the 2023 election – would still be higher than it needs to be.

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• 4.54 We also considered whether the party vote threshold could be lowered to three per cent or if this amount of change (a 40 per cent reduction) would be too great a step to take in one go.
• 4.55 During engagement, we heard a lot of concerns about extremism and disinformation, particularly in relation to lowering the party vote threshold. We understand these concerns and note that these risks are higher in the current political climate than when MMP was reviewed by the Electoral Commission in 2012.
• 4.56 We think civics education has a significant role to play in mitigating extremism and disinformation, by supporting the health of our democratic institutions and supporting voters to make informed decisions. However, we agree with experts and the Electoral Commission’s 2012 view that changes to the party vote threshold should be put in place incrementally.¹¹ Therefore, although the data supported the possibility of the threshold being lowered to three per cent (as the data did in 2012) without too much risk of a fragmented parliament, we do not recommend it at this time.

Preferential voting

• 4.57 We considered both full and partial preferential voting, in response to feedback from submitters that it should be introduced for either or both the party vote and electorate vote.
• 4.58 Full preferential voting would allow voters to rank their preferred parties or candidates (for example, they could select a first, second, and third choice). If a voter’s first choice did not succeed, their vote would transfer to their next ranked party or candidate (and so on). Second-choice voting is an example of partial preferential voting, where voters have the option of selecting a “back-up” party or candidate. Both types of preferential voting could make it easier for smaller parties to get into parliament because voters could support smaller or newly established parties or candidates without fear their vote will not count in the make-up of parliament.
• 4.59 We acknowledge the strong support these options received from some submitters during consultation, particularly second-choice voting. However, we remain wary of changes that would complicate the voting process. Adding complexity to how MMP works could be counterproductive, particularly if introduced at the same time as other changes. For these reasons, we think improvements to representation are better realised by lowering the party vote threshold without adding additional complexity.

¹¹ Electoral Commission, above n 7, p. 16.

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Interaction with our other recommendations

• 4.60 Lowering the party vote threshold interacts with our remaining recommendations in this chapter. We discuss these interactions as we work through the next topics.
• 4.61 In Chapter 19 we express the view that education is a better way to counter extremist views about the electoral system than addressing them through the party vote threshold.

The Panel recommends:

R7. Lowering the party vote threshold for list seat eligibility from five per cent of the nationwide party vote to 3.5 per cent.

One-electorate seat threshold

• 4.62 If a registered party wins at least one electorate (a general or Māori electorate), it is eligible for list seats even if it did not pass the party vote threshold.¹²
• 4.63 The one-electorate seat threshold is often referred to as the “coat-tail provision” because a party with strong support in a single electorate can bring in other MPs on the back of that support.
• 4.64 In six of the 10 elections held under MMP between 1996 and 2023, this provision has enabled at least one smaller party to gain additional representation in parliament. In most cases, the party or parties only gained one list seat but, in two cases, a party gained four list seats.¹³

Is there a case for change?

Arguments against change

• 4.65 In its 2012 review of MMP, the Electoral Commission noted that one rationale for maintaining the one-electorate seat threshold was that it can help increase the effectiveness of smaller parties entering parliament by enabling the workload to

¹² Electoral Act 1993, section 191(4).

¹³ The New Zealand First party was allocated four list seats in 1999 and the ACT party was allocated four list seats in 2008.

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Earlier recommendations

1986 Royal Commission on the Electoral System

The Royal Commission recommended a one-electorate seat threshold as part of its MMP model. (In later years, several Commissioners identified this recommendation as a mistake.)

2012 Electoral Commission Review of MMP

The Commission:

• Recommended the abolition of the one-electorate seat threshold due to the arbitrary and inconsistent way it supported proportionality, and that it compromised MMP’s core principles of equity and fairness.
• Reasoned that the one-electorate seat threshold confuses the purposes behind the two votes under MMP, and considered that any benefit to proportionality is outweighed by the negative impact on fairness. The abolition of the one-electorate seat threshold would result in all parties being treated in the same way, that is all having to cross the same party vote threshold.
• Stated that the purpose of the electorate vote is to elect a local representative. However, the one-electorate seat threshold goes beyond this purpose, and can significantly influence the make-up of parliament, by bringing in list MPs that would not otherwise be elected.

2017 and 2020 Electoral Commission post-election reports

In these reports, the Commission considered that the 2012 Review of MMP recommendations (addressing this aspect and others) would improve Aotearoa New Zealand’s voting system and recommended that they be considered by parliament.

be shared amongst more MPs.¹⁴ Since the introduction of MMP, the one-electorate seat threshold has helped avoid seven instances of single-MP parties. It also happened to increase the number of MPs of Māori descent in some recent elections.

• 4.66 In the first consultation, many submitters who responded to our question on the one-electorate seat threshold supported keeping it. People who favoured retaining the one-electorate seat threshold considered it supports proportionality and representation. This view was held because parties that win an electorate but are under the party vote threshold nationally are still allocated list seats rather than having their party votes discarded.

¹⁴ Electoral Commission, above n 7, p. 19.

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• 4.67 Some academics have noted that through the mechanism of the one-electorate seat threshold, local support leads to proportional representation at a nationwide level. For example, in 2002, the Progressives won a list seat with 1.7 per cent of the party vote after winning the Wigram electorate. Without the electorate threshold, the party votes for the Progressives would have not been included in the allocation of list seats.

Arguments for change

• 4.68 As noted by the Electoral Commission in its 2012 report, the one-electorate seat threshold has long been unpopular among a majority of people, particularly for the way it enables parties to gain additional representation in parliament on the back of strong support in a single electorate.¹⁵ People with this view see the threshold as unfairly favouring parties who have their support clustered in one electorate, sometimes as the result of political deal-making, rather than having significant nationwide support.
• 4.69 Almost all electoral experts and academics who responded to our question on the one-electorate seat threshold during the first consultation thought it was unfair or undermined the idea that the party vote should primarily determine the overall make-up of parliament in MMP elections. A widely used example of this effect is the 2008 election result, where the ACT party was awarded four list seats after winning the Epsom electorate, but the New Zealand First party did not get any MPs in parliament even though it received more party votes than the ACT party.
• 4.70 Many submitters to our first consultation called for change, with some noting the inconsistency in how the threshold supports smaller parties and, therefore, produces unequal election results. Another criticism of the one-electorate seat threshold is that it can result in excessive focus on a few electorates, as parties target these seats as a route to representation in parliament. There is a view that this threshold results in the voters in key electorates having a disproportionate influence over the final shape of parliament.
• 4.71 A few submitters thought the one-electorate seat threshold should be retained only in the Māori electorates to support the Crown’s obligations under te Tiriti / the Treaty because Māori (as a numerical minority) are at a disadvantage when contesting the nationwide party vote.

Our initial view

• 4.72 In our interim report, we discussed the advantages and disadvantages of the one- electorate seat threshold, concluding that it is fundamentally unfair and should be removed.

¹⁵ Electoral Commission, above n 7, pp. 18, 20.

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• 4.73 As an alternative, we considered and sought feedback on whether the threshold should be retained only for the Māori electorates to support the equitable participation and representation of Māori.

Feedback from second consultation

• 4.74 In our second consultation, submitters were strongly divided on whether the one- electorate seat threshold should be removed.
• 4.75 Both groups of submitters were concerned about fairness but had different views on what could be considered a fair election outcome:
  • Those in favour of its removal thought it undermines the primacy of the party vote threshold, is open to manipulation by parties, and creates inconsistencies around which parties enter parliament.
  • Those opposed to its removal thought it had been good for smaller parties, supported proportionality, and provided a legitimate alternative pathway to representation in parliament to the party vote threshold.
• 4.76 A few submitters discussed the option of retaining the threshold for the Māori electorates. They raised concerns about how this would be perceived, and the impact it could have on future consideration of Māori political representation. At the same time, they felt a 3.5 per cent threshold would be a barrier for parties representing Māori interests. One suggestion was to raise the threshold to two electorate seats for the Māori electorates and remove it for the general electorates.

Our final view

• 4.77 We maintain our view that the one-electorate seat threshold should be removed if the party vote threshold is lowered to 3.5 per cent. This would mean parties that do not meet the party vote threshold are ineligible for any list seats but would keep any electorate seats they have won.
• 4.78 We recognise that, in several respects, the one-electorate seat threshold has contributed positively to our electoral system. It has:
  • led to more representative parliaments than if it had not been in place and the votes for the relevant party discarded
  • supported the effectiveness of smaller parties by bringing in additional MPs to share the load.
• 4.79 However, the one-electorate seat threshold has led to disproportionate focus being placed on some electorates over others. This has resulted in the electorate vote of some voters having more power than others, which clouds the important principle that, in an MMP election, it is the party vote that should primarily determine the make-up of parliament.

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• 4.80 It has also led to situations where two parties receive a similar number of party votes, yet only one party is represented in parliament because of where that support was located.
• 4.81 While the one-electorate seat threshold aims to support the effectiveness of parliament by reducing the number of parties with only one MP in parliament, in most cases parties have not gained any further seats. Over the 10 MMP elections between 1996 and 2023, parties with less than five per cent of the party vote passed this threshold 22 times but only gained additional list seats on seven of these occasions (that is, around a third of cases).

Representation of Māori

• 4.82 We acknowledge the concerns that some submitters raised about the impact that removing the one-electorate seat threshold could have on Māori representation, whether or not the party vote threshold is lowered.
• 4.83 If the threshold was retained only for those who won a Māori electorate seat, this would not necessarily guarantee increased Māori representation. The one- electorate seat threshold has on occasion resulted in more MPs of Māori descent entering parliament than would have occurred otherwise. However, crossing the threshold does not guarantee further seats – this depends on a party’s share of the nationwide party vote. For these reasons, we do not think the one-electorate seat threshold should be retained as is, nor increased to two seats, for the Māori electorates only.
• 4.84 We think there are other, more reliable avenues to ensure Māori representation. In Chapter 3, we set out the recommendations that we think will better support Māori political participation and representation.

Interaction with our other recommendations

• 4.85 Currently, the one-electorate seat threshold compensates the five per cent party vote threshold by providing smaller and new parties with an alternative route to representation in parliament. In several previous MMP elections, parliament would have been less representative if the one-electorate seat threshold was not in place.
• 4.86 On its own, removing the one-electorate seat threshold would have a negative impact on proportionality and representation. However, these impacts are mitigated through our recommendation to lower the party vote threshold, so we recommend these changes as a package.
• 4.87 Our modelling shows that combining a lower 3.5 per cent party vote threshold with removing the one-electorate seat threshold achieves a good balance (compare Table 1 with Tables 2 and 3, Appendix 3). Based on previous election results, three more small parties would have gained seats in parliament. Parliaments would also

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have been more proportional and, in general, the outcomes of those elections would have been fairer.

The Panel recommends:

R8. Abolishing the one-electorate seat threshold, provided the party vote threshold is lowered to 3.5 per cent.

Overhang seats

• 4.88 An overhang seat occurs if a party wins more electorate seats than its share of the party vote otherwise would have entitled it to. This allocation can happen, for example, when a party’s candidates win one or more electorate seats, but their party wins only a small number of party votes.¹⁶
• 4.89 When this occurs, that party keeps all the electorate seats it has won, but the number of list seats allocated to other parties is increased until the next election. Therefore, the size of parliament may vary depending on the election results.
• 4.90 Aotearoa New Zealand’s first three MMP elections did not result in an overhang. However, five of the seven elections between 2005 and 2023 have required an overhang: one seat after the 2005, 2011, and 2014 elections, and two seats after the 2008 and 2023 elections.¹⁷

Is there a case for change?

Arguments against change

• 4.91 In the first consultation, many submitters who responded to our consultation question about overhang seats thought they should be retained. They saw the overhang seats as important for ensuring the proportionality of parliament. They considered overhang seats supported the primacy of the party vote in determining the composition of parliament, and reduced any distortions created by parties with local support that is greater than their national support. They also thought

¹⁶ For example, in 2014 United Future won one electorate but only won 0.22 per cent of the nationwide party vote, which would not have qualified it for any seats in parliament.

¹⁷ A further seat was added to the 54^th Parliament after the Port Waikato by-election on 25 November 2023, bringing the total number of seats in parliament to 123.

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Earlier recommendations

1986 Royal Commission on the Electoral System

The Royal Commission recommended that if a party won more electorate seats than its overall entitlement, extra seats should be created in the House until the next election. It stated that this was to be an “unlikely event.”

2012 Electoral Commission Review of MMP

The Commission:

• Recommended that if the one-electorate seat threshold was abolished, the provision for overhang seats should also be abolished. For example, in 2011, without the one-electorate seat threshold there would have been six overhang seats, which the Commission viewed as likely to be publicly unacceptable. Its modelling of previous election results indicated that removal of the overhang seats would have had a minimal impact on proportionality.
• Noted that there would be little point in abolishing overhangs if the one-electorate seat threshold remained.

that overhang seats ensure all parties receive the seats they are entitled to, either through winning electorates or through their share of the party vote.

• 4.92 We noted these further arguments against changing the overhang provisions:
  • Removing the overhang provisions would unfairly favour parties with strong local support. Parties that win more electorate seats than they are entitled to (based on their share of the party vote) would get a “windfall”: they would retain their additional seats and get a proportional benefit because other parties would receive fewer seats.
  • Abolishing the overhang provisions could encourage parties, candidates, and voters to act strategically in ways that could undermine proportionality.

Arguments for change

• 4.93 Many of the submitters to the first consultation who called for overhang seats to be abolished referred to the arguments made by the Electoral Commission in 2012. The Commission noted that if the one-electorate seat threshold were abolished, there would be a greater chance that parties would win more electorate seats than their party vote would entitle them to. That would then lead to more overhang seats being created to achieve a parliament reflecting party proportionality. The Commission argued that large overhangs would likely be unpopular with the public and create issues for governing.

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Our initial view

• 4.94 In our interim report we noted that if the one-electorate seat threshold were abolished, as we have recommended, it may increase the frequency and number of overhang seats. This is because without the compensating effects of the one- electorate seat threshold, every electorate won by a party that did not cross the party vote threshold would generate an overhang.
• 4.95 We recommended removing the overhang provision so long as the one-electorate seat threshold was also removed. In practice, this would mean that the number of list seats to be allocated would reduce by the number of overhang seats.

Feedback from second consultation

• 4.96 Only a few submitters commented on our draft recommendation to remove the provision for overhang seats. Some supported the proposal and noted that it fitted with our package of recommendations for MMP, whereas others were concerned that removing the provision may distort the proportionality of future parliaments.
• 4.97 An electoral academic challenged our view that overhangs may increase substantially if our other recommendations are taken up (lowering the party vote threshold and removing the one-electorate seat threshold). They noted that smaller parties would have less need to target an electorate seat with a lower party vote threshold, so overhangs could be less common. In addition, they disputed whether past overhangs have been of much public concern.

Our final view

• 4.98 We maintain our view that it is best to remove the provision for overhang seats if the one-electorate seat threshold is removed, because of the increased likelihood of an overhang occurring. This would mean that if an electorate is won by a candidate from a party that does not meet the party vote threshold, that candidate is elected as an MP but the total number of list seats allocated amongst all the parties is reduced by one. This approach currently applies to seats won by independent candidates.
• 4.99 We are concerned that an increase in the number and frequency of overhang seats, with the associated unpredictable fluctuations in the size of parliament, could affect government formation and the running of parliament. Whenever an overhang is created, the government would need more votes to form and maintain the confidence of the House (for example, in a 126-seat Parliament, 64 votes would be needed). The unpredictable fluctuations to the size of parliament would also affect the costs of running parliament in an uncertain way.
• 4.100 When the Electoral Commission considered the abolition of overhang seats in 2012, it modelled what the impact would have been on the proportionality of

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previous elections results and found it to be minimal.¹⁸ We repeated this modelling for elections up to 2020 and found the same result. While caution is required when using past election results to assess different arrangements, due to the impact different rules would be expected to have on voting behaviour, we think the modelling provides a reasonable indication that the abolition of overhang seats would not have an undue impact on the proportionality of our electoral system.

Interaction with our other recommendations

• 4.101 Due to the interdependencies between our recommendations, the changes we suggest to representation under MMP should be considered as a package:
  • Lowering the party vote threshold to 3.5 per cent will lower the barrier to representation for smaller and newly established parties.
  • Abolishing the one-electorate seat threshold will improve the fairness of our electoral system, but it should only be removed if the party vote threshold is lowered to provide other avenues to representation for smaller parties.
  • Abolishing the overhang provisions will mitigate the risk of an increase in the number of overhang seats that might result if the one-electorate seat threshold is abolished.
• 4.102 We modelled the cumulative impact of our recommendations on previous election results up to 2020. We found that, generally, the changes would have resulted in more proportional and fairer elections (Table 1, Appendix 2).
• 4.103 For example, under the Gallagher Index (a widely used measure of proportionality), a perfectly proportional parliament has a disproportionality rate of zero.¹⁹ In 2012, the Electoral Commission noted that a rate of less than three per cent is generally an indication that an electoral system is, on balance, fair.²⁰ The bigger the number, the more disproportionate the parliament. First-Past-the-Post parliaments from 1946 to1990 had an average rating of 10.66 per cent. Our modelling showed improved proportionality in most elections compared to current settings – for example, with our recommended changes, the parliament after the 2014 election would have rated 1.40 on the disproportionality index (down 2.32 from 3.72). However, proportionality would have been unaffected in the 2017 and 2020 elections.

¹⁸ Electoral Commission, above n 7, p. 22.

¹⁹ Gallagher, M., 1991. Proportionality, disproportionality and electoral systems. Electoral Studies,

10(1), pp. 33–51.

²⁰ Electoral Commission, above n 7, p. 22.

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• 4.104 Another effect of our combined recommendations on previous election results is greater representation of small parties, although this effect is mixed, with fewer seats for the larger parties resulting in a transfer of seats from one smaller party to another. For example, in the 2014 election, our modelling shows that under our package of changes, there would have been three fewer seats for the National Party, one fewer seat for the Labour Party, the Green Party and Te Pāti Māori, with five seats going to the Conservative Party (Table 1, Appendix 2).
• 4.105 Further, there would have been two elections where the government of the day would have required an additional party to reach a parliamentary majority. We accept that, given the range of behaviour changes expected due to changing several key settings at the same time, the models may not accurately predict what might happen in the future. Nevertheless, these models provide added confidence of the overall effect of changing these settings.

The Panel recommends:

R9. Removing the existing provision for extra seats to compensate for overhang seats, in line with our other recommendation to abolish the one- electorate seat threshold, which would result in fewer list seats being allocated.

Ratio of electorate to list seats

• 4.106 When Aotearoa New Zealand shifted to the MMP voting system in 1993, the number of MPs was increased from 99 to 120.²¹ The Electoral Act does not specify a fixed number of electorate or list seats.
• 4.107 For the first MMP election there were 65 electorates (60 general electorates and five Māori electorates) and 55 list seats. Over time, changes in population have resulted in 72 electorates (65 general electorates and seven Māori electorates) and 48 list seats.

²¹ In its 1986 report, the Royal Commission noted that the ideal size for the House would be about 140 seats, but recommended that it increase to 120 seats. It saw 120 members as the minimum needed to provide for an effective parliament and maintain a strong relationship between constituents and their representatives. Royal Commission on the Electoral System, 1986. Report of the Royal Commission on the Electoral System, Wellington: House of Representatives, pp. 126–127.

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• 4.108 The Electoral Act establishes a boundary review process that takes place every five years to see whether the population of each electorate remains about the same or if changes are needed.²² One or more general electorates may be added if the North Island population grows more quickly than the South Island population. Equally, changes to the Māori Electoral Population may result in changes to the number of Māori.²³
• 4.109 Each time a new electorate is created, the number of list seats to be allocated reduces by one. This raises several concerns because:
  • list seats create a more diverse and representative parliament
  • list seats ensure proportionality – that is, that the composition of parliament reflects the party vote.
• 4.110 After an election, a party’s electorate seats are tallied first, then list seats are used to ensure each party has a total number of seats in proportion to its share of the party vote. For this aspect of MMP to work, there needs to be enough list seats available to allocate.
• 4.111 If the rules stay the same and population growth continues in an uneven fashion, we will likely reach a point where there are insufficient list seats to maintain proportionality or a diversity of representation in parliament between list and electorate seats.

Is there a case for change?

Arguments against change

• 4.112 In our first consultation, some submitters who answered our question about the ratio of electorate to list seats supported maintaining the status quo. Many of these submitters had concerns about the role of list MPs and their perceived lack of accountability to voters.
• 4.113 Some submitters also considered that parliament has too many MPs already and that it should be reduced in size. Our Terms of Reference exclude us from

²² The boundary review process is discussed in detail in Chapter 17.

²³ It is uneven population growth, rather than the national population increasing, that necessitates changes to the number of electorates and their boundaries. This is because section 35 of the Electoral Act 1993 establishes that there are to be 16 South Island general electorates and that the North Island general electorates will change as needed so that the number of people in each electorate remains about equal across the two islands. Section 45 of the Electoral Act 1993 establishes a similar process for determining the number of Māori electorates. Section 191 of the Electoral Act 1993 provides that the remaining seats will be list seats.

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Earlier recommendations

2012 Electoral Commission Review of MMP

The Commission suggested consideration be given to a 60:40 ratio of electorate to list seats to maintain both diversity of representation and prevent problems arising in maintaining proportionality in parliament. It considered it prudent to opt for a ratio of electorate seats to list seats well below where a problem may arise. Making an explicit recommendation on the size of parliament was out of scope of the review.

2017 and 2020 Electoral Commission post-election reports

The Commission reiterated its 2012 recommendations in its 2017 and 2020 post-election reports.

considering the size of parliament, except in relation to the ratio of electorate seats to list seats.

Arguments for change

• 4.114 Many submitters who responded to our question in the first consultation supported a fixed ratio. Submitters were concerned about the impact of declining list seats as the number of electorates grows. If there are not enough list seats, they cannot be used to “top up” a party’s seats to achieve proportional representation. Our parliaments would become less representative of the nationwide party vote over time.
• 4.115 A common argument is that list seats have also been important for widening demographic representation. Fewer list seats could, therefore, also result in a narrower range of demographic representation in parliaments.
• 4.116 Most of the submitters who indicated their preferred ratio supported a ratio of 60:40 for electorate-to-list seats, as recommended by the Electoral Commission in 2012. However, a few submitters preferred a 50:50 ratio.
• 4.117 Many of these submitters also supported the Electoral Commission’s recommendation to allow the number of MPs to rise with population changes. A few academics added that the size of parliament should always be an odd number to avoid deadlocks that may impact the formation of government.
• 4.118 If there are fewer list seats available to compensate for overhang seats, then the frequency and size of overhangs may increase significantly. If an election result generates several overhang seats, and there are insufficient list seats available, then extra seats would need to be awarded (under current settings). As the number of electorates and the chance of overhang seats increases, more overhang seats and larger parliaments are likely.

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Our initial view

• 4.119 In our interim report, we recommended that the ratio of electorate to list seats should be fixed at 60:40 to ensure there are enough list seats to maintain parliament’s proportionality and the representation of diverse communities. To maintain this ratio, the size of parliament would increase gradually in step with predicted population growth. We also recommended that there should always be an uneven number of MPs to avoid the possibility of a hung parliament (the situation where no party or coalition of parties can form an absolute majority).²⁴

Feedback from second consultation

• 4.120 Some submitters to our second consultation supported our draft recommendation to have a fixed ratio of electorate to list seats and to increase the size of parliament. These supporters thought it would preserve the proportionality of parliament over time, as well as the diversity brought by list seats. Some submitters also commented on the high workloads of MPs and thought that more MPs would support the effectiveness of parliament. The Clerk of the House noted funding would need to rise in line with the House size increasing.
• 4.121 Only a few submitters commented on the proposal for an uneven number of MPs. However, they strongly supported it and singled it out as a recommendation that could make a significant difference to future election outcomes by removing the possibility of a hung parliament.
• 4.122 Many submitters were strongly opposed to the size of parliament increasing. Most were comfortable with the status quo, in which the number of electorate MPs increases at the expense of the number of list MPs, and some were concerned about the cost to taxpayers. Other submitters suggested there should be fewer than 120 MPs, with some commenting that New Zealanders are overrepresented compared with other countries. A few submitters thought the size of parliament could be reviewed and changed periodically instead.

Our final view

• 4.123 Under the current law, the number of list seats in parliament is expected to continue to decrease due to changes in population growth, risking the proportionality and diversity of parliament.
• 4.124 At present, we have 72 electorate seats and 48 list seats in parliament, which is the same as a ratio of 60:40 (that is, three electorate seats for every two list seats). We

²⁴ We noted that the Terms of Reference for our review identify matters relating to the current size of parliament as being out of scope, except as it relates to the Electoral Commission’s 2012 Review recommendation relating to the ratio of electorate to list seats. As such, we considered both matters in our draft recommendation to be within scope.

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think that the ratio of electorate to list seats should be fixed now, so that the number of list seats does not decline further.

• 4.125 We did not receive any feedback during the second consultation that has persuaded us to shift from the initial view we provided in the interim report. Therefore, we confirm our recommendations to set the ratio of seats at 60:40, unfix the size of parliament, and require an uneven number of seats.

Fixing a ratio of electorate to list seats

• 4.126 Without a fixed ratio, the electorate vote could begin to have an outsized impact on the make-up of parliament, incrementally moving us away from the major benefits of MMP.
• 4.127 The diversity of demographic representation for some groups in parliament has increased considerably under MMP, largely due to the election of MPs from party lists. For example, between 1996 and 2011:
  • 43 per cent of MPs elected from party lists were women, compared with 24 per cent of MPs elected from electorates
  • 21 per cent of MPs elected from party lists were of Māori descent, compared with 14 per cent of electorate MPs, including the Māori electorates– only five per cent of general electorate MPs were of Māori descent
  • MPs who openly identified as LGBTQIA+, Pasifika MPs, and MPs of Asian descent also increased.
• 4.128 Although it is difficult to assess with any precision, we may already be approaching the ratio of electorate to list seats at which proportionality may be at risk. There are different views on when this point is reached:
  • International literature suggests that risks to proportionality can be expected at a 75:25 ratio of electorate to list seats.²⁵
  • In 2012, the Electoral Commission suggested problems might arise at ratios of electorate seats to list seats of 67:33 – that is, 80 electorate seats and 40 list seats in a 120-seat parliament – or even lower.²⁶
  • The Commission thought it was important to set the ratio well below where a problem may arise and suggested 60:40 (which is equal to the 72 electorate seats and 48 list seats that we have at present).²⁷

²⁵ Taagepera, R & Shugart, M.S., 1989. Seats and Votes: The Effects and Determinants of Electoral Systems. New Haven: Yale University Press, p. 131.

²⁶ Electoral Commission, above n 7, p. 25.

²⁷ Ibid, p. 27.

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• 4.129 Our modelling of population growth scenarios suggests there may need to be 78 electorates by 2044 (and six fewer list seats than at present), resulting in a ratio of 64:36.
• 4.130 While there are differing views on what the exact ratio of electorate to list seats should be to avoid issues with proportionality, we think it is best to set the ratio lower than where problems are expected to arise. Therefore, we recommend setting the ratio at 60:40, which aligns both with the recommendations of the Electoral Commission and reflects the current composition of seats in parliament.

Allowing the size of parliament to change in line with population change

• 4.131 We acknowledge the strongly held views on how many MPs our parliament should have. However, if the ratio of seats is fixed without allowing parliament to increase in size, the number of people per electorate would become unequal, affecting representation and undermining fairness (the idea that each electorate MP represents roughly the same number of people).
• 4.132 The number of South Island general electorates is fixed at 16. If no more electorates could be created to reflect population growth differences, the number of people in each North Island general electorate and Māori electorate would become significantly greater than in the South Island general electorates.
• 4.133 Under a medium population growth scenario, by 2044 the South Island general electorates would each have about 76,000 people in them, but the North Island general electorates and Māori electorates would have 81,000 to83,000 people. The South Island would be overrepresented in parliament. This inequity in the number of voters represented in each electorate could also be inconsistent with the active protection of Māori electoral rights under te Tiriti / the Treaty.
• 4.134 As an alternative, we considered whether to unfix the number of South Island general electorates. The change would allow all electorates to remain equal in terms of the population they represent, but modelling suggests the South Island would lose an electorate from 2038 onwards. This impact would exacerbate the existing issue of geographically large electorates in the South Island. This option would compromise the effectiveness of local representation (as each electorate MP would need to represent an increased geographic size, potentially reducing the quality of representation), so we do not support it. It would be unfair to South Island electors to further reduce their access to representation.²⁸
• 4.135 We recommend unfixing the size of parliament, so that it gradually grows in line with population changes. This would be similar to the approach followed under

²⁸ It should be noted that these challenges exist already in most of the Māori electorates, particularly Te Tai Tonga which spans the entire South Island, Stewart Island, the Chatham Islands, and parts of Wellington City and the Hutt Valley.

Final Report | Chapter 4: Representation Under MMP ¹³¹

First-Past-the-Post between 1965 to 1993 (which saw parliament increase from 80 seats to 99 seats). It would continue to allow more electorates to be created over time, with extra list seats added to maintain a 60:40 ratio between electorate and list MPs.

• 4.136 Our modelling suggests the House would undergo incremental change from the current 120 seats to around 130 seats in 2044, based on a medium population growth scenario and before adjustment for an uneven number of seats, as discussed below (Table 4, Appendix 3). At this size, the numbers of representatives for the country’s population would be in line with many other democracies.²⁹
• 4.137 Under our recommendation, if the boundary review process remains the same, the number of seats would be reviewed every five years, so would not necessarily change ahead of every election. We considered the suggestion raised by some submitters of manually adjusting the number of list seats from time to time. This change is unlikely to make a significant difference to how frequently the size of parliament changes, except that it would be reliant on the government being able to progress an amendment bill through parliament.
• 4.138 Although a larger parliament may be unpopular with some people, many would also oppose electorates either representing more people or a bigger geographic area, or electorates representing uneven numbers of people. We think the shift to an unfixed parliament balances fairness, representation, and proportionality and provides an enduring response to population growth. It ensures electorates contain similar numbers of voters and preserves the representation function of the list seats.

Requiring the House to have an uneven number of seats

• 4.139 In a parliament with an even number of seats, it is possible for an election to result in deadlock, where no party or group of parties can form a government because they each hold an equal number of seats. If this outcome eventuated, it could require another election to be held.
• 4.140 Our recommendation to require the House to have an uneven number of seats supports our objective of having an effective government and parliament.
• 4.141 A further step would be required after the boundary review process to implement this change. Whenever the total number of seats came to an even number (once the number of electorates had been determined and the number of list seats adjusted to meet the 60:40 ratio), a further list seat would be added.
• 4.142 As part of our modelling of different population growth scenarios and the impact on the size of parliament, we also looked at the additional impact of requiring an uneven number of seats. However, our modelling indicates that an additional seat

²⁹ For example, Norway, Sweden, Denmark, and Ireland each have around one representative per 30,000 people.

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might not be needed very often. On the basis of the medium population growth scenario provided by Stats NZ, a compensating seat might need to be added on only three occasions over the next two decades to maintain an uneven number of MPs (Table 4, Appendix 3).

Interaction with our other recommendations

• 4.143 This recommendation has implications for the size of electorates and the boundary review process, which we address in Chapter 17.

The Panel recommends:

R10. Fixing the ratio of electorate seats to list seats at 60:40, requiring parliament to be an uneven number, and allowing the size of parliament to grow in line with the population.

Death of candidate during voting period

• 4.144 We note the unfortunate death of an electorate seat candidate during the advance voting period of the 2023 general election.
• 4.145 Currently, section 153A of the Electoral Act provides that when an electorate candidate dies or becomes incapacitated before election day, voters in that electorate continue to cast their party vote. However, the electorate vote is cancelled, and a by-election is called for that electorate. Similar provisions exist for candidates who die on election day or before final results are declared.
• 4.146 There is no dedicated provision for how seats in parliament should be allocated following the cancellation of an election for an electorate seat in these circumstances. Under the current law, the rest of the parliament is elected, and seats are allocated between parties that meet the representation threshold using the formula set out in sections 191 to 193 of the Electoral Act. This formula still requires the full allocation of 120 seats despite the cancellation of an election for an electorate seat. In practice, this means allocating one less electorate seat and one more list seat. The successful candidate in the subsequent by-election will then be an additional MP, creating an overhang in parliament.
• 4.147 We think this recent event necessitates an examination of the provisions for dealing with the death or incapacity of electorate candidates and the way that seats should subsequently be allocated. It is inconsistent with the current provisions in the Act for the treatment of independent candidates who are elected

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to an electorate. The creation of a parliamentary overhang is also inconsistent with our recommendation that these should be removed. Equally, adding an additional MP after the election is complete would undermine our recommendation that parliament always have an odd number of MPs.

• 4.148 Given this event occurred as we were finalising our report, and we did not previously receive any submissions on this topic, we have not been able to consider all the implications of any potential changes. Rather than make a recommendation, we simply raise the issue as one requiring further consideration.

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Final Report | Chapter 5: Parliamentary Term and Election Timing ¹³⁵

5. Parliamentary Term and Election Timing

The parliamentary term

• 5.1 Regular elections are a critical part of any democracy. Limiting the term of parliament ensures that voters have a regular opportunity to choose who represents them and to hold parliament and the government to account.¹
• 5.2 In Aotearoa New Zealand, the longest a parliament can run is three years from the return of the writs for the previous election.² At the end of this three-year period, unless it has already been dissolved, parliament expires. However, while the Constitution Act 1986 sets a maximum length for the parliamentary term, there is no minimum length. A shorter period is possible if the prime minister calls an early election (we discuss that issue further in the next section Election Timing).
• 5.3 The length of the parliamentary term must balance two objectives:³
  • Effectiveness: allowing parliaments and governments enough time between elections to do their jobs. For governments, this means enough time to develop, consult on, and implement their policies. Parliaments, meanwhile, need time to scrutinise governments and examine legislation.

¹ A number of international instruments reference the importance of the periodic nature of elections including the Universal Declaration of Human Rights GA Res 217A (1948), art 21; International Covenant on Civil and Political Rights GA Res 2200A (1966), art 25(b); General comment no. 25, The right to participate in public affairs, voting rights and the right of equal access to public service (article 25) UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996), p. 4 states “elections must be held at intervals which are not unduly long and which ensure that the authority of government continues to be based on the free expression of the will of electors”. The right to vote in genuine periodic elections is also found in the New Zealand Bill of Rights Act 1990, section 12(a).

² Constitution Act 1986, section 17(1). The return of the writ is the day on which a writ, containing the name of every electorate candidate elected, is returned to the Clerk of the House of Representatives.

³ Effectiveness and accountability are both objectives of our review (Terms of Reference: Independent electoral law review, paragraph 5, found at Appendix 2).

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• Accountability: elections hold politicians accountable to the people they serve. The ballot box provides the ultimate accountability. The term of parliament needs to be short enough to provide this opportunity regularly, but long enough for the public to be able to understand and assess the performance of the government and Members of Parliament (MPs). This accountability also helps to maintain trust in public institutions and uphold the legitimacy of the democratic system.

• 5.4 We have specifically been asked to consider whether the current three-year term of parliament continues to be appropriate for Aotearoa New Zealand, including:
  • whether a longer parliamentary term would improve the effectiveness of government, parliament and MPs
  • if the term of parliament was longer, whether voters would still have an appropriate level of influence over government and MPs
  • other related changes (such as the dissolution and expiry of parliament).

Is there a case for change?

Arguments against change

• 5.5 Many submitters answering this question in our first consultation supported keeping a three-year term. Submitters who supported the status quo thought that it holds politicians and political parties to account and ensures they remain responsive to voters. The ballot box is a powerful safeguard in democracies. These submitters were concerned that the current restraints on governmental authority were too weak, and they emphasised the need to ensure political accountability.
• 5.6 For some submitters to this first consultation (and for several experts), the lack of checks and balances in the constitution makes frequent (that is, three-yearly) elections more important. Unlike many other countries, Aotearoa New Zealand:
  • has one central government (rather than state and federal governments)
  • has a single-chamber parliament (rather than having an upper and a lower House)
  • does not have a written constitution
  • does not have the power for the courts to strike down laws made by parliament
  • has the ability for parliament to move into urgency with a majority vote, giving governments the ability to pass laws with less parliamentary scrutiny than is normally the case.

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Earlier recommendations

1986 Royal Commission on the Electoral System

The Royal Commission found the arguments on the length of the term finely balanced and that any change needed to sit alongside other restraints, particularly the introduction of its recommended Mixed Member Proportional (MMP) voting system. The Commission recommended a public referendum on whether the term should be extended to four years soon after MMP was introduced.

Earlier public referendums

Referendums in 1967 and in 1990 rejected extending the term by just over a two-thirds majority. Of those who voted in the 1967 referendum (69 per cent of registered electors), 68 per cent favoured retaining the three-year term. Of those who voted in the 1990 referendum (85 per cent of registered electors), 69 per cent supported the three-year term.⁵

2013 Constitutional Advisory Panel

The Constitutional Advisory Panel:

• noted a reasonable level of support for a longer term among those it consulted

• recommended further public consultation on what additional checks and balances might be desirable if a longer term was implemented.

• 5.7 A few submitters argued a stronger and more independent parliament (for example, one with stronger Select Committees and more MPs) is needed before extending the term of parliament. Some submitters noted that they would be more comfortable supporting a four-year term if such changes were made before or alongside it.⁴
• 5.8 In theory, a longer term may lead to better consultation and more considered law- making. However, some people question whether this has happened in other countries with longer parliamentary terms.
• 5.9 A longer term would also mean some young people would have to wait longer to vote. We consider the voting age in Chapter 7.

⁴ This view was also found by the Constitutional Advisory Panel, 2013. New Zealand's Constitution: A

Report on a Conversation He Kōtuinga Kōrero mo Te Kaupapa Ture o Aotearoa, Wellington: Constitutional Advisory Panel, p. 61.

⁵ Roberts, N., 2020. Referendums - Constitutional referendums. Te Ara - the Encyclopedia of New Zealand [Online]. Available at: https://teara.govt.nz/en/referendums/page-5 [Accessed October 2023].

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Arguments for change

• 5.10 Aotearoa New Zealand’s parliamentary term is one of the shortest in the world: three-year terms are rare. Only two other countries with one House of Representatives – El Salvador and Nauru – have a three-year term.⁶ In contrast, 49 countries with single Houses have a four-year term.
• 5.11 Some people, including some submitters to this review, consider three years does not provide enough time for governments and parliaments to be effective.⁷
• 5.12 Some submitters to our first consultation noted that the actual “working period” is shorter than three years, once pre- and post-election rules and election campaign times are factored in. Submitters and others have argued that this creates imperfect and rushed law-making (including the use of urgency in the House), resulting in poor quality laws and piecemeal reform. Consultation times can become short, and a lack of parliamentary time can result in laws being passed under urgency, with fewer checks on their content.⁸
• 5.13 Many submitters answering this question in the first consultation supported a four-year term. Some of these submitters thought a four-year term would be better for busy communities and organisations with multiple goals and interests because there would be more time to consult. Many submitters thought a longer term could help governments to tackle difficult issues requiring longer-term transformational change. These submitters included diverse community-based organisations and Māori groups.
• 5.14 With a three-year term, the influence of an approaching election operates for a greater portion of the parliamentary term. As the costs of new policies can be felt immediately by some sectors of society – unlike the benefits – governments may be less willing to make long-term, significant policy decisions. Some argue that this dynamic creates a barrier to major policy projects that may encourage longer-

⁶ Additionally, there are three bicameral lower chamber parliamentary systems with a three-year parliamentary term. These are Australia, Philippines, and Mexico. (There are no upper chambers with a three-year term). Inter-Parliamentary Union, 2023. Compare data on Parliaments. [Online] Available at: https://data.ipu.org/compare?field=chamber::field_parliamentary_term&structure=any lower_ch amber [Accessed October 2023].

⁷ Joseph, P., 2011. The Future of Electoral Law. In: C. Morris, P. Butler & J. Boston, eds. Reconstituting the Constitution. London & New York: Springer Heidelberg Dordrecht, pp. 219-242.

⁸ Geiringer, C., Higbee, P. & McLeay, E., 2011. What's the Hurry?: Urgency in the New Zealand Legislative process 1987-2010. Wellington: Victoria University Press.

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term strategic planning for topics such as housing, climate change, or economic inequality.⁹

• 5.15 There would also be some cost savings because elections would be held less often. Savings would include direct savings for the Crown and parties, opportunity costs accrued when time is spent on campaigning over running the country, and indirect economic costs caused by uncertainty drops in business confidence, and delayed investment.
• 5.16 Of the submitters to our first round of consultation who expressed a view on whether an extension to the parliamentary term should be decided by parliament or public referendum, most supported a referendum with an appropriate educational programme.

Other impacts

The term of parliament is entrenched

• 5.17 Changing the term of parliament requires a 75-per-cent majority vote in parliament or by a bare majority at a public referendum. In Chapter 2, we recommend the term of parliament remains an entrenched provision.

Changing the parliamentary term would impact local government elections

• 5.18 Changing to a four-year term would have an impact on local government elections. These also take place every three years, meaning the two elections always take place in different years. If parliament is elected every four years, local body and general elections would sometimes fall in the same year.
• 5.19 The report of the Future for Local Government Review recommends that local elections should move to a four-year cycle.¹⁰ This change would allow general and local body elections to take place alternatively, so that one was held two years after the other.

Te Tiriti o Waitangi / the Treaty of Waitangi implications

• 5.20 Te Tiriti o Waitangi / the Treaty of Waitangi (te Tiriti / the Treaty) resulted in the Crown obtaining the power to establish a government in Aotearoa New Zealand – but only on the basis that the government upheld the other rights and interests Māori were guaranteed in te Tiriti / the Treaty.

⁹ Boston, J., Bagnall, D. & Barry, A., 2019. Foresight, insight and oversight: Enhancing long-term governance through better parliamentary scrutiny, Wellington: VUW Institute for Governance and Policy Studies, p. 38.

¹⁰ Review into the Future for Local Government, 2023. He piki tūranga, he piki kotuku: The future for

local government, Wellington: Review into the Future for Local Government, p. 94.

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• 5.21 Regular elections are an important opportunity for Māori to hold the government to account on whether these rights and interests have been upheld. Extending the term of parliament will reduce the opportunities Māori have to do so. This could be seen as undermining electoral rights protected by te Tiriti / the Treaty because it changes the nature of the kāwanatanga arrangements.
• 5.22 We also heard that a three-year term requires a more frequent ‘reset’ of the Crown Māori relationship, which makes a sustained partnership more difficult.
• 5.23 Given these potential positive and negative implications, it is important that Māori

communities have an opportunity to be heard on this topic.

Our initial view

• 5.24 In our interim report, we noted that the arguments for and against a longer parliamentary term were finely balanced, but that we had heard enough to recommend that a referendum on the term of parliament should be held, supported by a well-resourced information campaign.

Feedback from second consultation

• 5.25 Most of those who responded to our online form supported holding a referendum on the term of parliament. Other submitters making written submissions were fairly evenly split between wanting to retain a three-year term and moving to a longer term, such as four years. A few submitters mentioned other term lengths, particularly five years. Submitters who supported a three-year term considered a referendum on the parliamentary term a waste of money or inappropriate to hold at this time.
• 5.26 We did not hear any new arguments for a referendum or for a longer term in this second consultation. Some submitters were unclear about whether they supported a longer term or supported having a referendum about one. Some submitters preferred a 75-per-cent majority vote in parliament to a referendum. A few submitters wanted the introduction of ways to make governments more accountable to parliament before, or alongside, a change to a longer term.
• 5.27 We received some feedback that the information campaign accompanying the referendum should include detailed engagement with other communities in addition to Māori.
• 5.28 The Electoral Commission suggested a longer term may not necessarily lower its costs. The Commission noted that the number of elections would reduce from 10 to eight across a 30-year period, but that cost savings may be offset by cost increases elsewhere. For example, more resources would need to be invested in keeping voter enrolment up to date between elections over a longer parliamentary term.

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Our final view

• 5.29 As we did in our interim report, we recommend a referendum should be held on the term of parliament.
• 5.30 We consider that the arguments between a three- or four-year term of parliament are finely balanced. Throughout our review, we heard legitimate concerns about whether the current three-year term is enough time for government, parliament, and MPs to be effective. We considered that the arguments in favour of a four-year term – that it would improve the ability of parliament to scrutinise the government, produce better laws and more effective governments – were strong arguments, in line with our objectives.
• 5.31 On the other hand, we also heard that there was no certainty that a four-year term would deliver the promised benefits when compared to a three-year term. A longer term would allow more time to develop and make new laws but might not improve the law-making process. We also heard that, in the absence of greater checks on how governments exercise power, more frequent elections help voters hold governments to account. Some experts consider that the introduction of MMP has indeed shifted the balance of power between governments and parliament, increasing the ability of parliament to more effectively hold the government to account.¹¹
• 5.32 Given that it is not appropriate for parliament to determine its own length, the public, not MPs, are best placed to decide what the most appropriate and effective term is. It is timely for the public to have an opportunity to do so – the last referendum took place 33 years ago.
• 5.33 We agree with submitters to both consultations that this referendum should be supported by a well-resourced information campaign.
• 5.34 As described above, extending the term of parliament has impacts on Māori. A longer term of parliament has Tiriti / Treaty implications and changes the nature of the kāwanatanga relationship. In addition, the referendum process requires majority support, heightening the need to engage with Māori, as the Treaty partner with a numerical minority of the vote. It is therefore important that the information campaign should include dedicated engagement with Māori leaders and communities.
• 5.35 We note the call from some submitters for detailed engagement with other

communities in addition to Māori. We support wide engagement with all

¹¹ Wallace, J., 2002. Reflections on Constitutional and Other Issues Concerning Our Electoral System: The Past and the Future. Victoria University of Wellington Law Review, 33(3 and 4), p. 742; Geddis, A., 2013. New Zealand's Ill-fated Review of MMP Working Paper No. 13. Electoral Regulation Research Network Democratic Audit of Australia Joint Working Paper Series, p. 3; Miller, R. & Lane, P., 2010.

Future of the MMP Electoral System. In: R. Miller, ed. New Zealand Government and Politics. 5^th ed. Melbourne: Oxford University Press, p. 181.

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communities, but our recommendation to engage with Māori is based on the Crown’s obligations under te Tiriti / the Treaty. Engaging Māori as Tiriti / Treaty partners is especially pertinent given the constitutional impact of changing the term of parliament.

Interaction with our other recommendations

• 5.36 Holding a referendum on the term of parliament should be considered as one part of our package of recommendations. Taken together, our recommendations aim to improve democracy in Aotearoa New Zealand. A greater gap between elections may be more acceptable to some people if our other recommendations were adopted. For example, our recommendation to lower the party vote threshold to

3.5 per cent (Chapter 4) will result in a more representative parliament. This recommendation could counter-balance less frequent elections.

• 5.37 Our recommendation to retain the ability of the prime minister to call an early election (discussed below in Election Timing) means that shorter terms would still be possible.
• 5.38 Our recommendation to develop a funding model to support community-led education and participation initiatives (Chapter 11) should help to inform voters in a referendum.
• 5.39 Other parts of this report cover matters that are linked to the three-year term, and so they would need to be changed if the term is extended to four years. One example is voter eligibility requirements (Chapter 7). At the moment, disqualification from voting for those citizens living overseas or those people on the Corrupt Practices List last for three years because they are linked to the current term of parliament.

The Panel recommends:

R11. Holding a referendum on the parliamentary term, supported by a well- resourced information campaign (including dedicated engagement with Māori as Tiriti o Waitangi / Treaty of Waitangi partners).

Final Report | Chapter 5: Parliamentary Term and Election Timing ¹⁴³

Election timing

• 5.40 In Aotearoa New Zealand, we have a maximum parliamentary term (every parliament expires after three years), but no minimum term.¹² A general election can be called at any time before the end of the three-year term. The governor- general – acting under prerogative powers in the Letters Patent as the Sovereign’s representative – has the constitutional role of dissolving parliament and calling a general election. By constitutional convention, this task is carried out on the advice of the prime minister who has the ultimate decision-making power to choose the election date.
• 5.41 The prime minister can call an early election at any time within the three-year term, although this has only happened three times:
  • In 1951 the prime minister sought to gain a fresh mandate from the people after major national strikes on the wharves. The prime minister announced the election on 11 July, and election day was eight weeks later on 1 September. This occurred with 15 months remaining in the three-year term.¹³
  • In 1984 the prime minister called a snap election after two and a half years into the term, following the loss of a vote in the House. The loss of this vote did not mean that the confidence of the House had been lost and constitutionally did not necessitate a general election. The prime minister called the election on 14 June, and the election was four weeks later on 14 July.
  • In 2002 the prime minister called an early election two and a half years into the parliamentary term, following the collapse of the junior coalition partner in government. The prime minister called the election on 12 June, and election day was six weeks later on 27 July.
• 5.42 On three occasions, parliaments have run longer than three years:
  • the first and second world wars (delayed elections and formation of parliament)
  • 1935 (four-year term following an extension legislated by the Forbes Coalition).
• 5.43 There is no requirement for a period of notice. In 1984 a snap election was called with four weeks’ notice; in 2002 it was six weeks. However, in recent years a practice has developed where the prime minister announces the election date

¹² Constitution Act 1986, section 17(1).

¹³ Joseph, The Future of Electoral Law, above n 7, p. 236.

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early in the third calendar year of parliament, providing many months’ notice for

the Electoral Commission, parties and candidates to prepare.¹⁴

• 5.44 The constitutional convention around the prime minister choosing the election date relies on the government and prime minister still having the confidence of the House.¹⁵
• 5.45 The government or prime minister may lose the confidence of the House through not having majority support for any vote of confidence and supply. This situation has yet to happen under MMP. If such a situation arose, and there was no alternative head of government or parliamentary majority, then the governor- general would be obliged to call an election. If such an alternative parliamentary majority did exist, the governor-general could refuse to call an early election to allow for this alternative parliamentary majority to govern.¹⁶

Is there a case for change?

Arguments against change

• 5.46 Many submitters who answered our first consultation question about setting the election date supported the status quo. These submitters were concerned about the difficulties that might arise when governments lose the confidence of the House of Representatives if the election date was fixed.
• 5.47 There is a view that current arrangements recognise the degree of flexibility required by the Westminster system of parliament and by MMP. For example, if a coalition government proved to be unstable, or a minority government arrangement became untenable, or an election result meant a government could not be formed, there might be a need to call another election right away. Although a new grouping of governing parties could be formed instead, under the status quo it would be possible to call an early election in any of these circumstances.
• 5.48 Current political practice, which may have become a constitutional convention, is that the prime minister announces the election date early in the last calendar year of the parliamentary term. There is no need to fix the date in law while this practice is followed.

¹⁴ Prime Minister Key arguably broke with the earlier tradition by announcing the 2011 election date nine months beforehand, the 2014 election seven months before election day and the 2017 date eight months before election date. Prime Minister Ardern took the same approach announcing the 2020 election date eight months before the selected date.

¹⁵ Geddis, A., 2023. Electoral Law in Aotearoa New Zealand. 3rd ed. Wellington: LexisNexis New Zealand Ltd, p. 42.

¹⁶ Cabinet Office, 2023. Cabinet Manual 2023, Wellington: Department of the Prime Minister and Cabinet, p. 9.

Final Report | Chapter 5: Parliamentary Term and Election Timing ¹⁴⁵

Earlier recommendations

1986 Royal Commission on the Electoral System

The Royal Commission favoured setting a minimum term in the context of having a longer, four-year term. The Commission did not feel a longer term could be implemented without restraint on the right to dissolve parliament. It preferred a minimum term of three and a half years (unless a government could no longer govern because it had lost the support of the House, in which case an earlier election could be called).

2013 Constitutional Advisory Panel

The Constitutional Advisory Panel recommended public consultation on a fixed election date, together with consultation on a longer parliamentary term. It identified two specific options for setting the election date:

• limiting the prime minister’s discretion to set the election date, for example, to the

last year of the term

• codifying the (then) current practice of holding the election on a Saturday toward the end of November.

2017 and 2020 Electoral Commission post-election reports

In both reports, the Commission invited further discussion of legislative change to provide for a fixed election date or a minimum notice period for the general election.

Arguments for change

• 5.49 Some experts hold the view that current arrangements favour the prime minister’s party.¹⁷ The prime minister can choose an election date that maximises the partisan interest of their party. However, the impact that this power has in practice is difficult to quantify, and academics have differing opinions about problems with the status quo.¹⁸ Some submitters to our first consultation were concerned about this possibility. An election called at very short notice might be unfair to other political parties who need time to prepare for the campaign. Currently, there is uncertainty over when the polling date will be and when the prime minister will make the announcement.
• 5.50 Submitters to the first consultation who wanted to change the process for setting the election date thought it would provide certainty and reduce the risk of

¹⁷ See, for example, Geddis, above n 15, p. 41.

¹⁸ Ibid; Joseph, The Future of Electoral Law, above n 7, pp. 236, 241.

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governments calling elections at politically convenient times. The changes they suggested included:

• allowing for others besides the prime minister and governing party to be involved in the decision to dissolve parliament early
• having the prime minister retain the power but setting a minimum notice period for elections
• legislating for a minimum term
• limiting the length of the parliamentary term after an early election to the remaining time of the original term
• restricting the circumstances in which an early election can be called (for instance, after the defeat of the budget)
• having a default election date that a majority vote in the House could move if needed.

• 5.51 The Electoral Commission noted in its report on the 2020 general election that it needs at least 14 weeks’ notice before election day to prepare for running an election. In that report, the Commission invited discussion on whether there should be a minimum notice period.

Our initial view

• 5.52 In our interim report, we considered whether to keep the status quo, or to make changes, to the process for setting the election date. After consideration, we did not recommend change.
• 5.53 We were of the view that the current practice (followed for the past five elections) of the prime minister announcing the election date early in an election year provides ample notice for political parties, candidates, voters and the Electoral Commission.

Feedback from second consultation

• 5.54 A few submitters to our second consultation offered explicit support for our draft recommendation to continue allowing the prime minister to choose the timing of the election, although they provided few reasons.
• 5.55 A few submitters wanted an alternative process or a statutory timeframe. Two academics considered our recommendation was insufficiently future-proofed, especially if a referendum resulted in a longer parliamentary term.
• 5.56 The Electoral Commission was concerned about the practical implications of a snap election, which it said were significant. The Commission was also concerned about how the current flexibility to call an election would interact with our proposal to legislate for an advance voting period of a minimum of 12 days. The

Final Report | Chapter 5: Parliamentary Term and Election Timing ¹⁴⁷

Commission reiterated that as advance voting has grown in recent elections, it has

become more difficult to deliver an election with less than 14 weeks’ notice.

Our final view

• 5.57 As in our interim report, we do not recommend any changes to the process for setting the election date. We maintain the view that the current practice (followed for the past five elections) of the prime minister announcing the election date early in an election year is a suitable approach.
• 5.58 Our view is that the process for setting the general election date needs to be flexible enough to work in practice while also having enough certainty so that it does not create unfairness. Certainty and plenty of notice are beneficial to parties, candidates, and advocacy groups who need to build a campaign and engage with voters, and the Electoral Commission that must deliver the election. Generally, providing more notice may help participation as it gives voters more time to enrol to vote and to learn about policies and candidates. However, overly lengthy campaigns may have the opposite effect, so a balanced approach is called for.
• 5.59 When we initially looked at the options for change, we considered that each option could create problems in practice. For example, if a government loses the confidence of the House, an early election should be called. If a fixed date was in place, and confidence was lost very early in the parliamentary term, the country could be stuck with a government that could not govern.
• 5.60 We are also not convinced that the current settings create a problem. MMP allows new coalitions to form without the need to call an election. Both the Westminster system and MMP have inbuilt flexibility, but they also need the flexibility to respond to changing conditions. We are satisfied that the status quo provides this flexibility.
• 5.61 As we discuss in Chapter 9, we consider some flexibility or reasonable accommodation to adjust advance voting services should be provided in a snap election, similar to the flexibility we propose for polling place standards.

Interaction with our other recommendations

• 5.62 Setting the election date affects:
  • when by-elections no longer need to be held if an electorate seat vacancy arises (Chapter 6)
  • the Māori electoral option. Māori electors can currently change rolls up until three months before a general election. Without a fixed time for calling an early election, an election could be called with less than three months to run – removing this option for Māori voters. However, our recommendation to allow the exercise of the option up to and including on election day, will address this issue (Chapter 8)

¹⁴⁸ Final Report | Chapter 5: Parliamentary Term and Election Timing

• the regulated period for spending on election advertising (Chapter 14)
• the timing for boundary determinations (Chapter 17).

The Panel recommends:

R12. Continuing to allow the prime minister to call a general election at any time before the end of the parliamentary term.

Final Report | Chapter 6: Vacancies in Parliament ¹⁴⁹

6. Vacancies in Parliament

Grounds for vacancies

• 6.1 Under section 55 of the Electoral Act 1993, there are 14 circumstances in which a Member of Parliament’s (MP’s) seat must be vacated (that is, when a person ceases to be an MP). It is important that any grounds to remove an MP are based on objective and reasonable criteria and follow fair procedures.¹
• 6.2 The most common reason for vacancies in both electorate and list seats is MPs resigning from parliament. This ground covers resignation for any reason, such as retirement from politics, illness, taking up other employment, or public pressure.
• 6.3 The other grounds in section 55 cover a variety of situations, including death, non- attendance, “mental disorder”, certain changes to citizenship, allegiance, or employment, conviction of a serious crime, and an MP’s election being declared void. A few of these grounds warrant further explanation and consideration, which we do below. We did not identify any issues with the other grounds, nor were any issues raised by submitters.
• 6.4 An MP may also be required to vacate their seat if they cease to be a parliamentary member of the political party from which they were elected. We discuss this rule separately in Electoral integrity rules.
• 6.5 In this section, we discuss whether any of the grounds for vacancies should be changed.

¹ General comment no. 25, The right to participate in public affairs, voting rights and the right of equal access to public service (article 25) UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996), p. 6.

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Earlier recommendations

2020 Electoral Commission post-election report

The Commission stated that it would be opportune to review archaic language and provisions that relate to mental health detention in the Electoral Act. The report refers to examples like “mental impairment” for voter registration. This review could also include the mental incapacity grounds for MPs to vacate their seat.

Disqualification for non-attendance

• 6.6 MPs are obliged to attend the House of Representatives and their attendance is recorded by the Clerk of the House.² An MP’s seat is vacated if they fail to attend the House for an entire session of parliament, unless they are absent in accordance with the rules of the House, including being granted leave.³
• 6.7 When this ground was introduced, a session of parliament usually lasted for a calendar year. However, since 1993 sessions have lasted for the whole term of parliament (that is, for three years).⁴
• 6.8 This ground does not affect MPs who attend the House but who do not otherwise carry out their responsibilities.

Is there a case for change?

Issues identified

• 6.9 The current ground has flexibility – an MP can seek leave to be absent from the House in various circumstances, such as serious illness or for parental leave. Permission can be granted by party leaders, party whips, or the Speaker, at their full discretion. As a result, disqualification on attendance grounds has been extremely rare, occurring only twice.⁵
• 6.10 In practice, there are other constraints that ensure attendance, including party discipline, public pressure, and salary deductions (which occur after an MP has been absent for more than three sitting days in a calendar year).

² Wilson, D. & Bagnall, D. eds., 2023. Parliamentary Practice in New Zealand. 5th ed. Wellington: Clerk of the House of Representatives, p. 180.

³ MPs are exempt from the attendance requirements if appointed to head a diplomatic mission or post. Section 55(1)(a) of the Electoral Act refers.

⁴ Wilson & Bagnall, above n 2, p. 181.

⁵ Thomas Fraser lost his seat in 1862 and Patrick Charles Webb lost his seat in 1918.

Final Report | Chapter 6: Vacancies in Parliament ¹⁵¹

• 6.11 Nevertheless, the shift to sessions lasting the whole term of parliament has made this vacancy ground completely ineffective. However, it is still undesirable for an MP to be absent from the House for an extended period and yet retain their seat. If this happens, it could erode public confidence in our democracy, particularly if the MP was representing an electorate.

Our initial view

• 6.12 In our interim report, we noted that the current non-attendance ground is effectively redundant because it allows an MP to be absent for an entire term of parliament. We proposed that a better ground would be to require an MP to vacate their seat if they have been absent from the House for a set time without permission. We thought a three-month period of absence would be appropriate and sought feedback on this idea.

Feedback from second consultation

• 6.13 Only a few submitters commented on our draft recommendation to change the rule for disqualification for non-attendance to three months. Most people who commented were in favour of our recommendation, including the Clerk of the House of Representatives who thought it would support the effective functioning of parliament.
• 6.14 One submitter thought the period should be reduced to two months. Other submitters thought it should be longer, or that the rule should be removed entirely so that MPs are not prohibited from using non-attendance as a form of protest and expression of free speech.
• 6.15 The Clerk of the House of Representatives also noted that leave to be absent from the House can be given by a party whip, party leader, or the Speaker in various circumstances.
• 6.16 In addition, a few submitters commented on their expectations for MPs generally, emphasising that MPs should be hardworking, accountable, and only able to be absent from parliament in exceptional circumstances.

Our final view

• 6.17 During consultation, we heard different views on how long is reasonable for an MP to be absent without permission and at what point non-attendance should be grounds for disqualification. However, there was consensus among submitters that MPs should be held to a high standard.

¹⁵² Final Report | Chapter 6: Vacancies in Parliament

• 6.18 We maintain our view that there should be a specific vacancy ground for non- attendance. MPs should attend the House to carry out their roles as our elected representatives.⁶
• 6.19 The existing ground does not work, nor reflect public expectations of MPs. An updated ground will set a clear expectation around attendance, rather than leaving this up to parties to enforce.
• 6.20 We acknowledge that any period of non-attendance is going to seem too generous to some people and too restrictive to others. We think that three months strikes the right balance, given other factors already discourage non-attendance and MPs will still be able to seek the House’s permission for a longer leave of absence.
• 6.21 We do not think a change is needed to the exception for MPs who head a diplomatic mission or post. The creation of an automatic vacancy would not be justified, given the range of missions or posts that might be captured.

The Panel recommends:

R13. Updating the ground for non-attendance so that the seat of any Member of Parliament becomes vacant if they are absent from parliament for three months without permission.

Mental incapacity

• 6.22 An MP’s seat is vacated if they are found to be “mentally disordered” (under the Mental Health (Compulsory Assessment and Treatment) Act 1992) for a period of more than six months. We are not aware of any instances where the ground has been used.

⁶ We note that after the 2023 review of parliament’s Standing Orders, rule 38A now allows for the Business Committee to make rules for remote participation. Participating remotely is regarded as attending the House, except for ministers, who must be present during all sittings and for personal votes. The Standing Orders Select Committee report noted that remote participation should be considered only where it is necessary for public health or where an emergency makes it impracticable for members to travel to Wellington. Members should otherwise attend in person to facilitate cooperation and development for all members. Standing Orders Committee, 2023. Review of Standing Orders 2023: Report of the Standing Orders Committee, Wellington: New Zealand Parliament, p 15.

Final Report | Chapter 6: Vacancies in Parliament ¹⁵³

• 6.23 Section 56 of the Electoral Act establishes a detailed process that must be followed before the MP’s seat is vacated. It requires the Speaker of the House to be informed if an MP is subject to a compulsory treatment order or an inpatient order. The Speaker will then inform the director-general of health, who must, together with a medical practitioner named by the Speaker, visit and examine the MP and report on whether the MP is “mentally disordered”. If so, a second report is prepared after six months. If the second report concludes that the MP is still “mentally disordered”, both reports are laid before the House of Representatives and the seat becomes vacant.

Is there a case for change?

Issues identified

• 6.24 The ground and the process aim to protect MPs who are unable to carry out their duties on mental health grounds. The ground also protects representation by allowing the seat to be vacated and filled by another representative.
• 6.25 The process is not appropriate. It invades privacy unnecessarily and also requires the director-general of health to personally visit and examine the MP, but the director-general of health no longer needs to be a qualified medical practitioner.
• 6.26 The current law has a very high threshold. It is extremely rare for anyone to be subject to a compulsory treatment order or an inpatient order for six months or more, even in the event of serious mental illness. The ground is unlikely to ever be met in the present day.
• 6.27 In addition, the language used in this ground is outdated. Though consistent with wording in the Mental Health (Compulsory Assessment and Treatment) Act 1992, that Act is under review by the Ministry of Health and is expected to be repealed and replaced.

Our initial view

• 6.28 Our initial view was that this ground is out of date and not fit for purpose. It only applies to very serious cases of mental illness, and the process it requires is not appropriate. We thought the situation would be better resolved through the new ground for non-attendance that we proposed, if resignation was not an option.

Feedback from second consultation

• 6.29 We received mixed feedback on our draft recommendation to repeal the “mentally disordered” vacancy ground. The Office of the Privacy Commissioner and a few other submitters supported this change, noting the current ground takes an outdated approach to mental health, is privacy invasive, and has such a high threshold that it would never be used.
• 6.30 A few submitters opposed the change, most of whom were concerned that it would result in MPs under significant mental distress remaining in parliament, unable to

¹⁵⁴ Final Report | Chapter 6: Vacancies in Parliament

perform their duties as a representative. These submitters wanted the ground to be retained, as a last resort. One submitter thought a physician should determine an MP’s capacity, rather than other members of their party or voters.

Our final view

• 6.31 We maintain our view that this vacancy ground should be repealed because it is outdated, invasive, and unnecessary.
• 6.32 We acknowledge the concerns we heard about what repeal could mean, but we reiterate that such a threshold is unlikely to ever be met.

The Panel recommends:

R14. Repealing mental incapacity as a ground to remove a Member of Parliament.

Citizenship

• 6.33 Candidates must be New Zealand citizens to stand for and be elected to parliament but can hold dual or multiple citizenships.⁷
• 6.34 An MP loses their seat if they lose their New Zealand citizenship, as well as if they:
  • become a citizen or subject of a foreign state (unless by birth right or marriage)
  • make a declaration of allegiance to a foreign state, or
  • apply for a foreign passport (renewing an existing one is permitted).⁸

⁷ Electoral Act 1993, section 47(3).

⁸ Electoral Act 1993, section 55AA.

Final Report | Chapter 6: Vacancies in Parliament ¹⁵⁵

Is there a case for change?

Issues identified

• 6.35 Different foreign citizenship rules apply to candidates than for sitting MPs. As people can move between the status of candidate and MP, the differing rules create somewhat incongruous scenarios, such as:
  • A person can stand as a candidate for parliament while they hold dual citizenship, but they must vacate their seat if they apply for citizenship in another country after being elected as an MP.
  • If an MP vacated their seat because they had applied for citizenship in another country, they would then be qualified to stand for election again. For example, they could stand for that seat in any subsequent by-election (if it is an electorate seat) or at the next general election.
  • A sitting MP would also disqualify themselves if they applied for a new foreign passport but, if re-elected, would be able to renew that passport without losing their seat.
• 6.36 An MP’s actions in seeking citizenship (or a passport or other rights associated with citizenship) can be seen as inconsistent with the oath of allegiance they take when they are sworn in. In contrast, there is seen to be greater transparency and opportunity for public scrutiny where a candidate has dual citizenship. Voters could, for example, choose not to vote for that candidate if they were concerned about dual allegiance, but would have no such ability where a sitting MP sought citizenship of another country.

Our initial view

• 6.37 We proposed that the current MP citizenship grounds should remain because they

were appropriate, and consistent with an MP’s oath of allegiance.

Feedback from second consultation

• 6.38 We did not receive any substantive feedback on our draft recommendation for this vacancy ground (either in support or in opposition).

Our final view

• 6.39 We maintain our view the current ground should be retained. As we noted in our interim report, although different from the requirements for candidates, we think this standard is appropriate for MPs and consistent with the oath of allegiance MPs take.
• 6.40 An MP should lose their seat if they lose their New Zealand citizenship because this only occurs when citizenship was fraudulently obtained or when citizenship of another country is acquired, and the person acts in a way that is contrary to Aotearoa New Zealand’s interests.

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Criminal convictions

• 6.41 Currently, an MP’s seat is vacated if they are convicted of a crime punishable by imprisonment of two years or more (that is, a category three or four offence under the Criminal Procedure Act 2011), or if found by the High Court to have committed a corrupt practice under the Electoral Act.⁹
• 6.42 Corrupt practices are deliberate acts that seek to unduly influence election outcomes (for example, bribery). They are punishable by a term of imprisonment of up to two years or a fine of up to $40,000 (or $100,000 for candidates, party secretaries or registered promoters when relating to election expenses). The level of penalty is lower than for category three and four offences. We discuss corrupt practices further in Chapter 18.

Is there a case for change?

Issues identified

• 6.43 The current ground may not be broad enough. It does not include category one or two offences, which some people may see as serious enough to warrant disqualification as an MP (for example, recidivist drink driving, indecent act in a public place, or contempt of court).¹⁰
• 6.44 On the other hand, the ground does not distinguish between a maximum sentence and the sentence actually imposed by the court. A vacancy is created when an MP is convicted of a serious offence where the maximum penalty is two years’ imprisonment or more, regardless of whether a light sentence or one at the higher end of the scale is imposed.

Our initial view

• 6.45 In our interim report, we expressed the view that the grounds for criminal convictions should be retained, reflecting that MPs should be held to a high standard of conduct. We also took the view that MPs should continue to lose their seat if they are found to have committed a corrupt practice.
• 6.46 Noting that the current ground applies to serious crimes, we also sought feedback on whether the current ground is sufficient.

⁹ Electoral Act 1993, sections 215 to 218.

¹⁰ In 2004, the High Court found a sitting MP to be in contempt of court, but the Speaker ruled it was not ground for disqualification as an MP. The law was modernised with the Contempt of Court Act 2019. For more information on this case, see Solicitor-General v Smith [2004] NZHC 1223; [2004] 2 NZLR 540 (HC); (6 April 2004) 616 NZPD (Speaker’s Rulings, Contempt Finding – Hon Dr Nick Smith); and Letter from DG McGee (Clerk of the House of Representatives) to Rt Hon Jonathan Hunt (Speaker of the House of Representatives) (6 April 2004).

Final Report | Chapter 6: Vacancies in Parliament ¹⁵⁷

Feedback from second consultation

• 6.47 Very few submitters commented on our draft recommendation to retain the existing criminal conviction vacancy ground, despite this being an area on which we sought specific feedback.
• 6.48 The Clerk of the House of Representatives agreed it would be useful to have clarity on whether a vacancy would arise on conviction or after all appeals. The Department of Internal Affairs emphasised the ground must continue to be based on the maximum sentence, rather than the sentence imposed, otherwise electoral consequences could influence (or be perceived to influence) the sentencing decision.

Our final view

• 6.49 We maintain the view that MPs should be held to a high standard and consider it is appropriate that MPs convicted of sufficiently serious crimes should be removed from parliament. We have not received any feedback to suggest that the current threshold – which applies only to serious crimes where the penalty is two years or more in prison – is insufficient.
• 6.50 We also maintain our view that MPs should continue to lose their seat if they are found to have committed a corrupt practice. Breaches that undermine the integrity of the electoral system appropriately carry both a criminal law consequence and an electoral system-level consequence. This ground acts as a deterrent to candidates and MPs, helping to preserve the integrity of our electoral system.
• 6.51 We recognise that the law is not clear about when the vacancy arises (whether on conviction or once all appeals have been exhausted) and recommend that when the Electoral Act is redrafted, it is made clear that the vacancy arises on conviction.
• 6.52 We note that, in practice, an MP who is convicted of a serious crime is likely to face significant pressure from the public and their party to resign in any case.
• 6.53 Although our recommended changes to voter eligibility will create different rules for voters compared with MPs (allowing all prisoners to vote, including those

¹⁵⁸ Final Report | Chapter 6: Vacancies in Parliament

convicted of category three and four offences), we think this difference reflects the greater responsibilities and expectations of MPs.

The Panel recommends:

R15. Retaining the remaining grounds for when a Member of Parliament vacates their seat, including the ground of citizenship.

R16. Amending the ground for criminal conviction to make clear that a vacancy arises upon conviction.

Electoral integrity (party-hopping) rules

• 6.54 A number of MPs have changed party during the term of parliament under the Mixed Member Proportional (MMP) system, including to form new political parties.
• 6.55 In 2018, the Electoral (Integrity) Amendment Act restricted an MP’s ability to

change party or become independent by introducing a new vacancy ground.¹¹

• 6.56 Sections 55A to 55E of the Electoral Act establish that an MP who ceases to be a parliamentary member of the political party for which they were elected must vacate their seat, provided they or the leader of their political party give notice to the Speaker.
• 6.57 These rules have not been used but have been the subject of much commentary and debate. In 2020, a member’s bill was introduced to repeal the provisions, but it was unsuccessful.

Is there a case for change?

Arguments against change

• 6.58 The current rules were introduced to support public confidence in the integrity of the political system by ensuring the proportionality of parliament is not significantly altered by MPs changing political affiliations after an election. The rules mean that voters, through their party vote at the last election, can continue

¹¹ The Electoral (Integrity) Amendment Act 2001 provided for similar rules. It had a sunset clause and expired in 2005. In 2006, a bill was introduced to make the provision permanent, but it did not progress.

Final Report | Chapter 6: Vacancies in Parliament ¹⁵⁹

Earlier recommendations

2013 Constitutional Advisory Panel

The Constitutional Advisory Panel noted that between 2005 and 2013, only a small number of MPs left their parties. It concluded that this meant the proportionality of parliament (the key reason for electoral integrity legislation) was not under threat.

to determine the share of seats each party gets in parliament throughout the parliamentary term.

• 6.59 During the first consultation, some submitters supported the current rules, taking the view that an MP’s accountability to voters through their political party is more important than their independence, particularly because of the central role of political parties under MMP. A few submitters thought that the provisions could be retained if the criteria for when a party leader can give notice to the speaker is narrowed.¹²
• 6.60 Other submitters thought that MPs elected from a party are obliged to continue to serve that party for the term of parliament and this is the expectation of voters.
• 6.61 The current rules provide some flexibility. An MP’s seat does not automatically become vacant if they leave their party. Therefore, parties that do not support the vacancy process do not have to use it and others can use it as a “last resort” only. Flexibility minimises the potential for vacancies or by-elections resulting from these rules.

Arguments for change

• 6.62 Restrictions on party hopping may not be necessary. As noted above, the Constitutional Advisory Panel concluded that the proportionality of parliament was not under threat.
• 6.63 Likewise, some academics have argued the electoral system functioned well when party hopping was permitted, because defections were few and were resolved at the resulting by-election or next general election by voters.¹³ Most defecting MPs were not re-elected; those that were had obtained voters’ support for leaving their party.

¹² Electoral Act 1993, section 55D.

¹³ Morris, C., 2018. Party-hopping Déjà vu: Changing Politics, Changing Law in New Zealand 1999- 2018. Public Law Review, 29(3), pp. 210 - 214.

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• 6.64 Most submitters who commented on the current provisions during our first consultation were opposed to them and wanted them to be abolished. These submitters considered that the rules privilege political parties over voters, weaken accountability, undermine public trust and democratic principles, and prevent MPs from acting in an independent and principled way.
• 6.65 Many submitters to our first consultation thought that electorate and list MPs should be treated differently. They considered electorate MPs should stay on in parliament, because they had a local mandate from voters. The same local mandate did not apply to list MPs who should therefore have to leave parliament if they left or were expelled from their party.
• 6.66 In addition, some academics argue that the party-hopping regimes have not been effective. For example, when the Alliance Party split under the 46^th Parliament (1999 to 2002), the defecting MPs were the majority of the party, so the remaining MPs did not have the numbers required to trigger the party-hopping provisions.¹⁴ Under the current law, it can also be unclear whether the “reasonable belief that proportionality has been distorted” threshold, as outlined in the Act, has been met.
• 6.67 Repealing the rules would mean that an MP who ceases to be a member of their party could stay in parliament as a member of another party or as an independent MP. Some submitters were in favour of allowing MPs to exercise their individual judgement and conscience, reflecting that an MP may choose to defect for a multitude of reasons, some of which could be seen as a principled or necessary departure.
• 6.68 Academics have noted that the current rules give a lot of power to parties and their leaders to stifle debate and dissent – either directly by forcing a dissenting MP from parliament, or indirectly by influencing MP behaviour.¹⁵ An MP might feel unable to express contrary views to the views of the party, even where the views they are expressing are supported by their constituents. This impact impinges on MPs’ right to freedom of association and expression.
• 6.69 Some academics have argued that party defection or disloyalty is a political problem and that it is not appropriate to have set rules.¹⁶ In 2003, in Awatere Huata v Prebble, the courts were faced with making a decision where a party wanted a member expelled from parliament, while the member claimed to still represent the party. This drew the courts into inherently political matters, even though Aotearoa New Zealand’s constitution places importance on keeping the parliament and the courts separate.

¹⁴ Ibid, p. 211.

¹⁵ Ibid; Geddis, A., 2005. All power to the Party! New Zealand Law Journal, Volume 13; Willis, E., 2018.

Electoral (Integrity) Amendment Bill: Submission to the Justice Select Committee.

¹⁶ Morris, above n 13, pp. 216 - 218.

Final Report | Chapter 6: Vacancies in Parliament ¹⁶¹

Our initial view

• 6.70 Our initial view was that the rules should be repealed. We considered the rules unfairly limit an MP’s freedom of association and expression. We also thought the provisions created uncertainty in instances where MPs leave or are suspended or expelled from their party, which potentially has a chilling effect on free speech.
• 6.71 Repeal would also recognise the inherently political nature of internal party disputes and keep them out of the courts.

Feedback from second consultation

• 6.72 A few submitters to the second consultation supported our recommendation to repeal the party-hopping rules. These submitters considered that the current law has been ineffective, creates confusion, and is constitutionally inappropriate. They noted the current law limits the free speech and freedom of conscience of MPs, which may restrict their ability to represent constituents, and that the ability for MPs to defect is an important check on the power of political parties.
• 6.73 Some other submitters did not support our recommendation or thought that list MPs should remain subject to the party-hopping rules. These submitters considered that electorate MPs can be elected as individuals and have an obligation to represent their constituents, where list MPs are elected on the basis of being a member of a party. In the view of these submitters, that means list MPs should not be able to defect from the party they were elected to represent. A few submitters were concerned that the ability of list MPs to defect could change the proportionality of parliament and which parties can command the confidence of the House.
• 6.74 A few submitters wanted the rules strengthened so that list MPs must leave parliament if they leave their party, while one organisation considered that list MPs should only be able to remain in parliament if they have the support of the party they were elected for. Another submitter thought electorate MPs should only be allowed to become independent, not change party.

Our final view

• 6.75 During consultation, we heard differing views from submitters about whether the party-hopping rules should be abolished, retained, or modified to apply in more limited circumstances.
• 6.76 We considered retaining, adjusting, or abolishing the party-hopping rules. We also considered retaining the rules for list MPs only.
• 6.77 The freedom of MPs to dissent can provide an important constitutional check on political parties and the government. We maintain our view that the party-hopping rules should be abolished in their entirety. The rules unfairly limit an MP’s

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freedom of association and expression, which are fundamental rights in any democracy and under the New Zealand Bill of Rights Act 1990.

• 6.78 We are also mindful of the fact that, at the moment, the party-hopping rules are applied inconsistently, which has led to an unsatisfactory level of uncertainty. We consider that repealing the party-hopping rules would create clarity for MPs, political parties, parliament, and the public.
• 6.79 The share of seats each party gets at a general election is not immutable and can change for several reasons throughout the term of a parliament, most obviously as a result of by-elections. Party hopping is simply another way in which changing political dynamics might be reflected in the parliament.
• 6.80 While we understand the view of some submitters that list MPs should be subject to different rules when they leave or are expelled from their parties, we do not see a strong basis for drawing such a distinction. Electorate MPs, while elected individually, often strongly represent the views of their parties. As well as representing their parties, list MPs often also represent local areas and other communities. We consider that individual MPs, whether elected on the list or by an electorate, should be able to exercise the same freedom to dissent. The public, not political parties, are best placed to judge whether those MPs are justified in doing so.

The Panel recommends:

R17. Repealing the restriction on Members of Parliament remaining in parliament if they cease to be a member of the party from which they were elected.

Process for filling vacancies

• 6.81 The process for filling vacancies is set out in Part 6 of the Electoral Act and varies depending on whether it’s an electorate seat or a list seat, as well as how close it is to the next election when the vacancy arises.
• 6.82 By-elections are held to fill electorate seat vacancies, which a sitting list MP can choose to stand in as a candidate. ¹⁷ The election is held in the same way as a general election, except that voters do not cast a party vote.

¹⁷ Electoral Act 1993, sections 129 – 133.

Final Report | Chapter 6: Vacancies in Parliament ¹⁶³

Earlier recommendations

2012 Electoral Commission Review of MMP

The Commission:

• recommended list MPs should continue to be able to contest by-elections

• did not support electorate vacancies being filled from the party list.

• 6.83 List seat vacancies are filled from the party list. ¹⁸ The Electoral Commission checks that the next candidate on the list is still a member of the party and whether they agree to be an MP. If necessary, the Electoral Commission moves on to the next person on the party list. If there is no one left on the list, the seat remains vacant until the next election.
• 6.84 If either an electorate or list seat vacancy arises within six months of a general election, a 75 per cent majority of parliament can decide not to fill the vacancy.¹⁹ No decision is required if the vacancy arises after parliament has been dissolved.

Is there a case for change?

Arguments against change

Electorate seats

• 6.85 Since the first MMP election in 1996, there have been 15 by-elections to fill vacancies.²⁰ Although by-elections come at a cost, if the seat remained vacant this would leave an electorate without representation in parliament.
• 6.86 Many submitters who provided feedback on vacancies during our first consultation supported keeping the status quo. Submitters who supported by-elections generally considered the connection between electorate MPs and their constituents to be meaningful. They saw by-elections as an important means of continuing this relationship and ensuring that constituents continued to have representation in parliament.

¹⁸ Electoral Act 1993, sections 134 – 138.

¹⁹ Electoral Act 1993, sections 131 and 136.

²⁰ This figure includes the by-election held in Port Waikato on 25 November 2023, which was held following the death of an electorate candidate during the 2023 General Election.

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• 6.87 There is an increasing trend of electorate MPs retiring from parliament during the six-month period before the general election. In each case the House has resolved to not hold a by-election. It could be argued that this process is working well and saving taxpayer funds.

List seats

• 6.88 As with electorate seats, if a list seat was not filled when vacated, a party would have fewer MPs to do the work of parliament and would no longer have a share of MPs that is proportional to its nationwide support.
• 6.89 We also note that, in every instance to date that a list seat has become vacant, there has been another person on that party’s list able to fill the vacancy, which could be seen as the current process working well.

Arguments for change

Electorate seats

• 6.90 Although there have been 15 by-elections during the 27 years of MMP, by-elections have been more frequent in some parliaments than in others: four were held during the 49^th Parliament (2009 – 2011) and three during the 51^st Parliament (2014

– 2017).

• 6.91 Some submitters who provided feedback during our first consultation considered that MPs should always complete the full parliamentary term, apart from in exceptional circumstances. Several of these submitters suggested that disincentives could be put in place, such as not filling list seat vacancies, or requiring by-elections to be paid for by the vacating MP or their party.
• 6.92 Some submitters thought that by-elections were a waste of taxpayers’ money and that electorate seats should remain vacant if an MP left. Some submitters also thought that leaving seats vacant would incentivise MPs to stay on.
• 6.93 One alternative to by-elections would be to fill vacancies in electorate seats from party lists. This is a process used in some other countries and was suggested by some submitters. Parties could be required to consider local representation when filling a seat from the list.
• 6.94 By-elections come at a considerable cost – each by-election costs around $1.2 million, though the cost varies depending on the electorate – and can change the proportionality of parliament. For example, in 2022 the National Party’s win in Hamilton West gave it one more seat in parliament and Labour one less seat, meaning the make-up of parliament was no longer as proportional to the party votes won by these parties at the 2020 general election. A few submitters noted that allowing by-elections, while restricting Party hopping (discussed above), applied an inconsistent approach to proportionality throughout the parliamentary term.

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• 6.95 In some cases, a change to the proportionality of parliament could affect overall majorities in parliament. In such situations, by-elections can give voters in the relevant electorate disproportionate influence over who is able to form the government.

List seats

• 6.96 It has become common for MPs intending to step down at the next election to resign in the final year of the parliamentary term and be replaced from the party list. This trend could be viewed as making way for a candidate who is expected to have an ongoing interest in a parliamentary career. However, if the rules around replacing list MPs were changed, MPs would be incentivised to stay on through to the election.
• 6.97 Most submitters to our first consultation supported the current way that vacant list seats are filled from the party list, but other submitters considered that list seats should remain vacant if an MP resigns.

Our initial view

• 6.98 In our interim report, we recommended leaving the process for filling vacancies unchanged. We noted that filling vacant electorate and list seats supports parliamentary effectiveness and provides voters with representation. In addition, by-elections fill an important democratic function, ensuring voters elect their preferred candidate as their local representative.

Feedback from second consultation

• 6.99 Very few submitters commented on our draft recommendation to retain the existing process for filling vacancies. A few submitters supported filling electorate seat vacancies through by-elections, noting that filling those seats using the party list could result in an MP with little to no connection to an electorate being appointed.
• 6.100 A few other submitters were opposed to by-elections, arguing they can be disruptive and costly, and can change the proportionality of parliament (which in some circumstances could affect the stability of government). These submitters preferred that electorate seat vacancies be filled using party lists, which would be less costly and more likely to have diverse candidates.

Our final view

• 6.101 We maintain the view that the existing process for filling vacancies should be retained to support parliamentary effectiveness and voter representation.
• 6.102 We considered whether there were circumstances in which a seat could remain vacant if the House agreed. However, this option would result in some voters not

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being represented by an electorate MP and could have a major impact on parliamentary effectiveness and government stability. For example, a government with a majority of only one MP could lose the confidence of the House through a single vacancy. These impacts seem severe where a seat is vacated involuntarily, such as if an MP dies or becomes unwell.

• 6.103 Although by-elections can be unpopular, removing them is also likely to be unpopular. By-elections are important for ensuring local representation. Representatives with sufficient links to the electorate are especially significant for Māori electorate vacancies, where relationships and whakapapa links are particularly important considerations.
• 6.104 Because of the importance of local representation for electorates, we do not think that using party lists to fill electorate seat vacancies would be appropriate. Although by-elections can change the proportionality of parliament, as noted above in our final view on Party hopping, the party vote determines the make-up of parliament post-election but does not guarantee it through the whole term.
• 6.105 We consider the status quo is consistent with our review objectives. The current rules are practicable and enduring, and able to produce effective parliaments and governments. Retaining the current rules upholds and promotes the legitimacy and integrity of Aotearoa New Zealand’s democratic electoral system.
• 6.106 If the length of the parliamentary term is changed to four years (discussed in Chapter 5), we consider that six months is still the maximum length of time that it is justifiable for a vacancy to not be filled in an electorate or list seat. Therefore, we do not propose a change to the exception period.

The Panel recommends:

R18. Retaining the current rules for filling vacant electorate seats and list seats, including the processes for a seat that is vacated within six months of a general election.

PART 3

Voters

This part covers:

• voter eligibility (Chapter 7)
• enrolling to vote (Chapter 8)
• voting in elections (Chapter 9)
• counting the vote and releasing results (Chapter 10)
• improving voter participation (Chapter 11)

¹⁶⁸ Final Report

He Arotake Pōtitanga Motuhake

Independent Electoral Review

Final Report | Chapter 7: Voter Eligibility ¹⁶⁹

7. Voter Eligibility

• 7.1 Voter eligibility determines who can vote in general elections. A person must first enrol to be eligible to vote.¹
• 7.2 To be eligible to enrol, a person must be 18 years or older, a New Zealand citizen or permanent resident, and have lived in Aotearoa New Zealand continuously for at least one year at some time in their life.²
• 7.3 For electoral purposes, a permanent resident is defined as someone who resides in Aotearoa New Zealand and can stay here indefinitely.³ This differs from the definition for immigration purposes, where a permanent resident is someone who holds a permanent resident visa. To avoid confusion, one of our recommendations, discussed below in Voting rights for residents, is to change the Electoral Act’s use of the term “permanent resident” to “resident for electoral purposes”. We use the latter term throughout this chapter for clarity.
• 7.4 Some people who would otherwise be eligible to enrol are disqualified if:⁴
  • they are a citizen living overseas who has not been in Aotearoa New Zealand within the last three years
  • they are a resident for electoral purposes living overseas who has not been in Aotearoa New Zealand within the last 12 months
  • they are in prison serving a life sentence, preventive detention, or a sentence of three years or more
  • they have committed a crime but are not in prison for reasons relating to mental health or intellectual disability (for example, because they have been found unfit to stand trial or they have been committed to a hospital or secure facility upon conviction). In these situations, a person loses the right to vote if they are detained in a hospital or secure facility for more than three years

¹ Electoral Act 1993, section 60.

² Electoral Act 1993, section 74.

³ Electoral Act 1993, section 73.

⁴ Electoral Act 1993, section 80.

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• they have been found to have committed an electoral offence that places them on the Corrupt Practices List.

Our approach to voter eligibility

• 7.5 A key focus for this review was how to improve participation and accessibility in the electoral system. This objective needs to be balanced with ensuring the rules are clear, fair and support the transparency and integrity of elections.
• 7.6 As discussed in Chapter 1, the right of citizens to vote is a fundamental right, protected by international and domestic human rights law. This right is built on the idea that democratic governments serve with the consent of those they govern.
• 7.7 The United Nations Human Rights Committee, in its General Comment on Article 25 of the International Covenant on Civil and Political Rights, states that any conditions on the right to vote must be objective and reasonable, and no distinctions are permitted in the enjoyment of this right between citizens on a number of grounds, including sex, race, religion, and national or social origin.⁵ Likewise, section 5 of the New Zealand Bill of Rights Act 1990 provides that the rights and freedoms it contains may be subject only to such reasonable limits as can be demonstrably justified in a free and democratic society.
• 7.8 When considering voter eligibility, our starting point was that all citizens should have the right to vote unless there is a strong case to limit that right. This approach also supports our objective of encouraging participation.
• 7.9 The basis for limiting voting rights has changed over time. Previous eligibility rules based on owning property, race, sex, or being a British subject have been removed. The remaining restrictions on citizens relate to a person’s age, the time they have spent away from Aotearoa New Zealand, and the length of time that they are being detained in prison or mental health care due to their criminal offending. We assessed whether these still form a reasonable basis for limiting voting rights.

⁵ General comment no. 25, The right to participate in public affairs, voting rights and the right of equal access to public service (article 25) UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996), p. 3. The UN Human Rights Committee (HRC) further notes that it is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements at pp. 4, 5.

Final Report | Chapter 7: Voter Eligibility ¹⁷¹

Earlier recommendations

1986 Royal Commission on the Electoral System

The Royal Commission recommended:

• the voting age should be reviewed by parliament from time to time, taking account of public opinion (it also noted there was a strong case for lowering the voting age to 16)
• prisoners who have been sentenced to a term of three years or more should not be allowed to vote
• patients in psychiatric hospitals who have, following criminal proceedings, been detained for three years or more should not be allowed to vote.

It did not propose changes to the requirement to live in Aotearoa New Zealand for one year, the overseas disqualification, the Corrupt Practices List disqualification, or the right of residents for electoral purposes to vote. (It did suggest that residents for electoral purposes should be able to stand as candidates.)

2011, 2014, 2017 and 2020 Justice Select Committee

In its interim report on the 2020 election, the Justice Select Committee recommended holding a public debate on whether 18 remains the best age for enfranchisement and the role of civics education. It previously discussed the voting age and youth participation rates in its reports on the 2011, 2014 and 2017 elections.

Following the 2020 election, the Justice Select Committee also recommended changing overseas voter eligibility criteria to address situations such as pandemics that prevent people from returning to Aotearoa New Zealand.

2020 Electoral Commission post-election report

The Commission:

• recommended further public and political debate on the voting age

• suggested that references to “permanent residents” should be replaced with a

clearer definition

• considered the overseas voting eligibility criteria should address situations where people have been prevented from returning to Aotearoa New Zealand by circumstances outside their control, such as a pandemic.

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2023 Review into the Future for Local Government

The report of the Review into the Future of Local Government recommended that the voting age for local body elections should be lowered to 16.

• 7.10 Aotearoa New Zealand is unusual in extending voting rights to some residents.⁶ We considered whether the current eligibility rules take account of the difference in voting interests for citizens, who have a fundamental right to vote, and residents for electoral purposes, who are granted voting rights as a result of living here. Taken together, our recommendations seek to appropriately reflect these claims by easing the voting restrictions for citizens and modestly tightening the requirements for residents for electoral purposes.

Interaction with our other recommendations

• 7.11 In Chapter 2, we discuss our recommendation that voter eligibility provisions should be entrenched.
• 7.12 Candidate eligibility is generally based on voter eligibility. We consider candidate eligibility in Chapter 12.
• 7.13 Voter eligibility for general elections also applies to local elections, so the changes we propose in this chapter would extend to local elections unless the government chose to make separate rules.⁷

⁶ Ibid, p. 3. The UN HRC has noted that International Covenant on Civil and Political Rights GA Res 2200A (1966), which includes the right to vote, specifically protects the rights of “every citizen”. The other rights and freedoms recognised by the Covenant are ensured to all individuals within the territory and subject to the jurisdiction of the State.

⁷ The Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill was introduced to parliament in August 2023. The bill would lower the voting age from 18 to 16 for local elections and polls, while the voting age would remain 18 for general elections.

Final Report | Chapter 7: Voter Eligibility ¹⁷³

The voting age

• 7.14 A minimum voting age is used as a proxy for whether voters are mature enough to understand and exercise the right to vote responsibly. Setting the voting age will always be somewhat arbitrary. There are a range of voting ages around the world – for example, the voting age is 16 in Scotland and Austria, while it is 21 in Singapore and 25 in the United Arab Emirates.
• 7.15 In Aotearoa New Zealand, the voting age was originally set at 21. It was lowered to 20 in 1969 and to 18 in 1974, which it remains today. The voting age is no longer linked to the legal age of majority, which is currently 20 years old.⁸

Is there a case for change?

• 7.16 The age at which people should be allowed to vote has been the subject of recent debate in many countries, including in Aotearoa New Zealand. This topic attracted a lot of attention from submitters to our first consultation. More people commented on the voting age than on any other topic during that consultation.

Arguments against change

• 7.17 Most submitters to our first consultation thought that 18 was still the appropriate age for people to gain the right to vote. Submitters who supported the current voting age generally argued that 18 aligns with when a person becomes an adult and takes on other legal responsibilities. They pointed out that 18 is the most common voting age in comparable democracies. Some submitters noted that many people leave home at 18 to begin full-time work and paying taxes.
• 7.18 Some submitters thought that people younger than 18 did not have the ability, education, or life experience to make a decision as important as how to vote. They thought young people may not have enough knowledge or interest in politics to make an informed choice and could be more easily influenced by their parents, teachers or the media.
• 7.19 A few submitters also doubted whether lowering the voting age would improve participation outcomes if young people were not motivated to vote.

Arguments for change

• 7.20 Many submitters to our first consultation wanted to lower the voting age to 16. Very few submitters proposed a voting age lower than 16 or higher than 18.
• 7.21 Supporters of lowering the voting age said that young people have already begun to take on a range of responsibilities and to participate in society by 16. These

⁸ See the Age of Majority Act 1970, section 4(1).

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submitters noted that, like all voters, 16- and 17-year-olds may have different levels of political knowledge and interest but are still capable of voting.

• 7.22 Many submitters to our first consultation who supported a lower voting age considered that it might improve democratic participation. They thought allowing people to vote from 16 could help to build life-long voting habits and pointed to positive participation outcomes in other countries that have lowered the voting age. Some submitters referred to overseas evidence that young people may be more likely to vote when they are still at home and at school. In these circumstances, young people may have better opportunities to learn first-hand from the voting habits of their parents, families and schoolmates than when they are navigating the big life changes that come with leaving home.
• 7.23 Those submitters who favoured a lower voting age also thought it supported intergenerational fairness. They noted that young people will have to deal with the consequences of the long-term challenges facing our society and our planet. Giving them a voice in elections means they can help shape our response to these challenges.
• 7.24 Some submitters to our first consultation noted that the current voting age may negatively impact the representation of communities with proportionately younger populations, such as Māori. For example, we note that with a voting age of 18, about 78 per cent of Aotearoa New Zealand’s Pākehā population is eligible to vote, compared to 63 per cent of Māori. Therefore, some argued that lowering the voting age would help to enable Māori participation, upholding te Tiriti o Waitangi

/ the Treaty of Waitangi (te Tiriti / the Treaty). During engagement with Māori communities, we heard about the importance of instilling voting habits in rangatahi Māori when many are still at home, at school and within their community, given their high rates of residential mobility.

• 7.25 Other submitters pointed out that similar arguments hold for Pasifika populations, who are also proportionately younger than other populations, with 61 per cent being able to vote with a voting age of 18. We heard that in some communities there can be flow-on benefits when young people get involved with voting, as they can encourage and motivate older generations to participate too.
• 7.26 In November 2022, the Supreme Court found the current voting age to be unjustified age discrimination under the New Zealand Bill of Rights Act 1990.⁹ We discuss the Supreme Court’s decision below.

Our initial view

• 7.27 Having reviewed the evidence available to us, we recommended in our interim report that the voting age should be lowered to 16. We were convinced by the evidence that 16-year-olds are just as capable of making informed decisions about

⁹ Make It 16 Incorporated v Attorney-General [2022] NZSC 134, [2022] 1 NZLR 683.

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how to vote as 18-year-olds. We also thought that lowering the voting age could have positive benefits for participation, based on emerging research from other countries.

Feedback from second consultation

• 7.28 During our second consultation, we heard many strong views on lowering the voting age. Submitters raised arguments both supporting and opposing our recommendation that built on the arguments we previously heard in our first consultation.
• 7.29 People who supported lowering the voting age to 16 talked about the potential benefits, such as improving participation, instilling voting habits at a younger age, and building civic responsibility in young people. They thought that young people are capable of making an informed vote, citing youth political movements, other legal responsibilities that take effect at 16, and a lack of conclusive evidence to the contrary. They noted that many 16- and 17-year-olds are already working and paying taxes. A few submitters commented on the absence of capacity assessments for any other groups of voters.
• 7.30 Some submitters thought a lower voting age would be good for our democracy as it would broaden the diversity of representation and encourage a longer-term horizon for political decision-making. We heard that empowering young people to choose their representatives and influence issues that impact them contributes to intergenerational fairness and equity. Supporters of lowering the voting age also talked about the disproportionate impacts on communities with younger population age structures, particularly Māori communities.
• 7.31 Most people who completed our online form opposed lowering the voting age. They thought that 16-year-olds are not mature or educated enough to make an informed vote. Before they turn 18, young people might lack life experience and have little understanding of or interest in politics.
• 7.32 Some submitters who thought the voting age should remain 18 pointed to research showing cognitive development is not complete until a person’s mid-20s and public opinion polls showing a lack of support for lowering the voting age in Aotearoa New Zealand. They also thought that young people are more easily influenced and more likely to vote for certain political parties or causes.
• 7.33 Some submitters didn’t think there was a strong case for change. A few commented on the arbitrary nature of the voting age and that the arguments for making the voting age 16 could equally be used to argue the voting age should be 14, 12 or even younger. There were several comments on other legal ages set at 18, particularly noting the inconsistency with how young people are treated in the criminal justice system. A few submitters were doubtful that lowering the voting age would improve participation, given low turnout rates among 18- to 24-year- olds. Some disagreed that the disproportionate impacts on Māori in light of demographic trends should be a consideration.

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• 7.34 A few submitters supported reducing the voting age below 16, while others proposed raising it above 18. Some submitters thought that a lower voting age should be accompanied by compulsory civics education in schools, but others thought these two issues should not be dependent on each other.
• 7.35 The Department of Internal Affairs and Local Government New Zealand commented on the desirability of having a consistent voting age for general and local elections.

Our final view

• 7.36 As we have noted, the right to vote is a fundamental right, recognised and protected by law. Universal suffrage, which means that every citizen should have the right to vote without unreasonable restrictions, is affirmed in international law through Article 25 of the International Covenant on Civil and Political Rights. The United Nations Convention on the Rights of the Child also affirms that those under 18 years who are capable of forming their own views have the right to express those views freely in all matters affecting them and have the right to freedom of expression.¹⁰
• 7.37 A minimum voting age is a commonly accepted restriction on the right to vote.¹¹ In Aotearoa New Zealand, the New Zealand Bill of Rights Act 1990 guarantees the right to vote for citizens aged 18 and older.¹² We did not see any reason to consider raising the voting age, which would be a clear breach of this right.
• 7.38 However, the New Zealand Bill of Rights Act 1990 also protects the right to freedom from discrimination on any of the grounds set out in the Human Rights Act 1993.¹³ These grounds include discrimination against those aged 16 and over on the basis of age.¹⁴ For this reason, we have focused our consideration primarily on whether the voting age should be lowered to 16, rather than any other age.
• 7.39 In 2022, Make It 16 Incorporated took a case against the attorney-general to the Supreme Court that argued that the current voting age breaches the right to be free from age-based discrimination. The Supreme Court determined that the current voting age is inconsistent with the right of 16- and 17-year-olds to be free from age discrimination. Under the New Zealand Bill of Rights Act 1990, rights can be subject to limits if they are reasonable and justified in a free and democratic society.¹⁵ The Supreme Court found that the inconsistency had not been justified,

¹⁰ Convention on the Rights of the Child GA Res 44/25 (1989), art 12 and art 13.

¹¹ UN HRC, above n 5, p. 4.

¹² New Zealand Bill of Rights Act 1990, section 12. ¹³ New Zealand Bill of Rights Act 1990, section 19. ¹⁴ Human Rights Act 1993, section 21(1)(i).

¹⁵ New Zealand Bill of Rights Act 1990, section 5.

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based on the evidence submitted to the court. It left open the possibility that it could be justified in the future, as the attorney-general had not attempted to justify the existing age limit.

• 7.40 Based on the evidence we have seen, discussed below, we do not think the current voting age is justifiable, given its discriminatory effect on 16- and 17-year-olds. We maintain our view that the voting age should be lowered to 16.
• 7.41 The main argument we heard for keeping the current voting age is that 18 is when people become adults, and enfranchising adolescents who do not have the knowledge or ability to exercise the right to vote responsibly could cause harm to the integrity and legitimacy of our democracy.
• 7.42 A particular individual’s right to vote is not, and should not, be based on a competency test. However, when it comes to deciding at what age the right to vote should be recognised, general assessments of capacity are a relevant consideration.
• 7.43 In response to concerns raised by submitters, we have reviewed the evidence to assess whether there was a case that 18-year-olds are capable of making informed decisions about how to vote in a way that 16- and 17-year-olds are not. We caution, however, that there are limits to how directly cognitive neuroscience and behaviour science research can be applied to establish real-life competency, where environment, context and variations in individual development play important roles.
• 7.44 Some submitters opposed to lowering the voting age pointed to research showing that cognitive development, particularly in the prefrontal cortex, continues into people’s mid-20s.¹⁶ This ongoing development can affect impulse control, risk- taking and decision-making in teenagers.
• 7.45 That said, the question is not when cognitive development is complete, but whether there is any relevant difference between cognitive development at ages 16 and 18 for the purpose of being able to vote. We have seen research that indicates adolescents are capable of making informed and rational choices about the future, as compared to making more impulsive decisions when they are faced with more immediate personal choices or emotionally charged situations.¹⁷ By 16, adolescents’ cognitive capacity is essentially the same as adults, while their

¹⁶ Arain, M. et al, 2013. Maturation of the adolescent brain. Neuropsychiatric disease and treatment, Volume 9, pp. 449 – 461; Johnson S.B., Blum R.W. & Giedd, J.N., 2009. Adolescent maturity and the brain: the promise and pitfalls of neuroscience research in adolescent health policy. The Journal of adolescent health, 45(3), pp. 216 – 221.

¹⁷ Casey B.J., Jones, R.M. & Hare, T.A., 2008. The adolescent brain. Annals of the New York Academy of Sciences, Volume 1124, pp. 111 – 126.

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psychosocial capabilities (such as impulse control) can be slower to develop.¹⁸ These different capacities are sometimes distinguished as “hot” cognition, which takes place in charged situations, and “cold” cognition, which allows for rational deliberation.¹⁹

• 7.46 Whether people are mature enough to vote should, therefore, be assessed based on that specific decision-making context, rather than a broad-brush approach to determining cognitive maturity or adulthood. Voting falls squarely in the category of “cold cognition”, which supports the position that 16-year-olds are generally as capable of making a rational decision about how to vote as 18-year-olds. As such, we see no justification for denying them the right to vote on this basis.
• 7.47 Any minimum age will always include some individuals who are not yet ready to vote and exclude some who are. But voting is a choice, not an obligation, as Aotearoa New Zealand does not have compulsory voting. In our assessment, the risks (which we consider to be small) of giving the vote to some young people who may not be ready to exercise that right are outweighed by the potential benefits of enfranchising those who are.
• 7.48 We also respond to some other common arguments we heard against lowering the voting age during consultation:
  • Legal ages: We heard arguments, both for and against lowering the voting age, that were based on what young people can or cannot legally do at different ages. Determining legal ages is often based on the prevailing science, law and societal norms at the time. Just as the voting age has changed in our history, and just as we have been asked to look at it again, so too might other legal ages and the rationale behind them evolve over time. We therefore did not find looking at other legal ages particularly instructive, compared to evaluating the case for lowering the voting age on its own merits.
  • Public opinion: A few submitters noted that public opinion polls in recent years have indicated most New Zealanders oppose lowering the voting age. They argued that a change to lower the voting age would, therefore, lack democratic legitimacy. However, where the rights of a specific community are involved, public opinion should not be the only determinative factor. Public perceptions can also change: we note for instance that while only a

¹⁸ Steinberg, L., Cauffman, E., Woolard, J., Graham, S., & Banich, M., 2009. Are adolescents less mature than adults?: minors' access to abortion, the juvenile death penalty, and the alleged APA "flip-flop". The American Psychologist, 64(7), pp. 583 – 594.

¹⁹ Icenogle, G., et al, 2019. Adolescents' cognitive capacity reaches adult levels prior to their psychosocial maturity: Evidence for a "maturity gap" in a multinational, cross-sectional sample. Law and human behaviour, 43(1), pp. 69 – 85.

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third of adults in Scotland supported a voting age of 16 before its introduction, public support rose to 60 per cent after it was lowered.²⁰

• Political affiliation: Some submitters said that younger people are more likely to vote for certain parties or policies. We do not see voting preferences as a valid reason to deny anyone the right to vote, whatever their age. All parties and candidates should be motivated to develop policies that will appeal to and reflect the diverse communities that make up Aotearoa New Zealand’s society.
• Work and taxes: Some submitters said that young people should not be able to vote if they are not working and paying taxes. But the evidence indicates that many 16- and 17-year-olds already are, including some who are in full-time work. We were provided data in our second consultation that showed that over 87,000 16- and 17-year-olds paid nearly $72 million in income tax in 2020 to 2021, while all New Zealanders pay GST irrespective of their age.

• 7.49 Lowering the voting age supports our objectives of an electoral system that is fair and encourages participation. Studies overseas have shown that voting when newly eligible is an important factor in becoming a life-long voter. Environment is a factor – young people who are still at school and living at home with their families are likely to have higher rates of voter turnout compared to those who have moved out on their own.²¹ Research suggests that voting can be habit forming, and so voting early in life might in turn support the development of life- long voting habits, though these findings can depend on other contextual factors.²²
• 7.50 Evidence from Austria and Scotland, both of which have lowered the voting age to 16, shows higher turnout rates among 16- and 17-year-olds compared with people in their late teens and early twenties.²³ A recent report from Scotland found that in the 2021 Scottish Parliament election, people who were able to vote at 16 for the first time had higher levels of turnout in subsequent elections than those who

²⁰ Eichhorn, J & Hübner, C., 2023. Votes-at-16 in Scotland 2014-2021, Edinburgh: University of Edinburgh, p. 5.

²¹ Bhatti, Y. & Hansen, K., 2012. Leaving the Nest and the Social Act of Voting: Turnout among First- Time Voters. Journal of Elections, Public Opinion and Parties, 22(4), pp. 380-406; Bhatti, Y., Hansen,

K. M. & Wass, H., 2012. The relationship between age and turnout: A roller-coaster ride. Electoral Studies, 31(3), pp. 588-593.

²² Plutzer, E., 2004. Becoming a Habitual Voter: Inertia, Resources, and Growth in Young Adulthood.

American Political Science Review, 96(1), pp. 41-56.

²³ Aichholzer, J. & Kritzinger, S., 2020. Voting at 16 in Practice: A Review of the Austrian Case. In: J. Eichhorn & J. Bergh, eds. Lowering the Voting Age to 16 – Learning from Real Experiences Worldwide. Basingstoke: Palgrave MacMillan, pp. 81-101; The Electoral Commission, 2014. Scottish Independence Referendum: Report on the referendum held on 18 September 2014. United Kingdom: The Electoral Commission.

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were able to vote for the first time at 18, indicating a lasting positive effect on turnout.²⁴ While this limited evidence is from countries with different populations and histories to ours, it is still encouraging.

• 7.51 Keeping the voting age at 18 could be viewed as a proportionately greater unjustified age discrimination against Māori, making it an inequity under te Tiriti / the Treaty. The eligible voters of a given population – and those who turn out to vote – get to choose who represents them. A greater proportion of the Māori population is aged 16 or 17, relative to non-Māori. This means there are proportionately fewer votes to represent the entire Māori population.
• 7.52 Lowering the voting age would also broaden political representation. If 16- and 17- year-olds were given the right to vote, they would make up about 3 per cent of the eligible voting population. Letting 16- and 17-year-olds vote means that the perspectives of young people on issues that affect them – now and into the future

– are more likely to be reflected and represented in parliament.

Other considerations

• 7.53 Some young people in Aotearoa New Zealand have shown strong civic engagement and participation through campaigns such as the School Strike 4 Climate and Make It 16. But we are aware that many of our young people face barriers to civic engagement including voting, and more work is needed to support them to participate.
• 7.54 Voting is an inherent right, so the decision to lower the voting age should not be conditional on other changes. We do, however, see the benefits in lowering the voting age in parallel with other changes to the electoral system that increase equity in the participation rates across groups. As discussed in Chapter 11, these changes include strengthening civics education, improving community engagement, and reducing other barriers to participation, particularly in communities with relatively lower turnout rates. Together, these changes give the best chance of empowering young people to exercise the right to vote fully and meaningfully.
• 7.55 Information about voting and democratic processes should be made available to young people from diverse backgrounds – such as disabled youth – in formats that are most accessible and relevant to them.
• 7.56 The Crown’s responsibility to uphold te Tiriti / the Treaty makes this information essential for rangatahi Māori. If they are not supported and encouraged to participate, then there is a risk that current inequities could continue.

²⁴ Eichhorn & Hübner, above n 20.

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Interaction with our other recommendations

• 7.57 The voting age is an entrenched provision of the Electoral Act, meaning it can only be changed by public referendum or by 75 per cent of parliament. We discuss our recommendations on entrenchment in Chapter 2.
• 7.58 In Chapter 5, we recommend a referendum is held on the term of parliament. If the term of parliament were extended to four years and the voting age were to stay at 18, some people would not be able to vote for the first time until they were nearly

22. In our view, a longer term would make lowering the voting age even more important.

• 7.59 Some submitters shared views about the impact of our recommendation to lower the voting age on candidate eligibility, which we discuss in Chapter 12. In a similar vein, changing the voting age would affect jury service eligibility as anyone who is registered as an elector is liable to serve as a juror.²⁵ While outside the scope of this review, consideration would be needed of whether 16- and 17-year-olds should be exempt from jury service if the voting age were lowered.

The Panel recommends:

R19. Lowering the voting age to 16.

²⁵ Juries Act 1981, section 6.

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Voting rights for overseas citizens

• 7.60 Citizens who live overseas can vote,²⁶ but they are disqualified unless they return to Aotearoa New Zealand every three years.²⁷ There are some exemptions to this rule for diplomats and Defence Force members serving overseas and their families.²⁸ Overseas citizens immediately regain the right to vote upon re-entry to Aotearoa New Zealand, even if they only return for a single day.
• 7.61 An estimated 1 million New Zealanders live abroad. About 78,000 overseas votes were cast in the 2023 election, representing about 2.7 per cent of the total votes cast.

Is there a case for change?

Arguments against change

• 7.62 In our first consultation, many submitters who commented on this topic supported the current eligibility rules for overseas citizens.
• 7.63 Some submitters thought that citizens living abroad who have not visited Aotearoa New Zealand in the past three years would not be as connected with what is going on here. They argued that such people would not be directly affected by the outcome of elections, so they should not be able to unduly influence election results. They believed that it was fairer to voters who live in Aotearoa New Zealand for there to be limits on the right to vote for those living overseas.

Arguments for change

• 7.64 Most of the submitters who commented on the rules for overseas voters in our first consultation recommended extending the time overseas voters remain eligible to vote before they must return to Aotearoa New Zealand. A few submitters thought that the rule should be more restrictive.
• 7.65 Some submitters argued that the current rule was an unreasonable limit on the right of citizens to vote. They said that if a person is a New Zealand citizen, then they should be able to participate in elections, no matter where they live. This position reflects the symbolic importance of being able to vote to a person’s sense of belonging to their home country. Aotearoa New Zealand also benefits in many

²⁶ Citizens must also have lived in Aotearoa New Zealand continuously for at least 12 months at some point in their life to be eligible. We discuss how these rules interact below.

²⁷ Parliament temporarily extended this timeframe to six years for the 2023 election only, due to the impact of COVID-19 restrictions on travel. The timeframe will revert to three years in December 2023.

²⁸ Electoral Act 1993, section 80(3).

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ways from the links its overseas citizens provide to the wider world. Some submitters emphasised the importance of this issue given that around 1 million New Zealanders are overseas.

• 7.66 Other submitters thought the current rule may unfairly privilege the wealthy and disadvantage people who are unable to return to Aotearoa New Zealand regularly, whether for financial, family or health reasons.
• 7.67 Some submitters discussed the impacts of the COVID-19 travel restrictions. These restrictions illustrated how citizens abroad can still be affected by government policy decisions made within Aotearoa New Zealand. We heard about the emotional impact experienced by overseas citizens who felt cut off from their home community by the COVID-19 travel restrictions, which may have affected their ability to contribute to democratic processes.
• 7.68 Some other arguments that could justify change include:
  • It is now easier for New Zealanders living overseas to stay connected – by keeping in touch with family and friends digitally or by following local news and politics online. Given these changes, the current rule may be an arbitrary way to assess a person’s connection to Aotearoa New Zealand.
  • Many Māori live overseas, and the current disqualification may not reflect the more enduring connection they have with Aotearoa New Zealand based on whakapapa and being tangata whenua.

Our initial view

• 7.69 In our interim report, we considered that the current overseas disqualification was too restrictive on the voting rights of citizens. We recommended that the timeframe should be extended to two electoral cycles (either six or eight years, depending on the term of parliament).

Feedback from second consultation

• 7.70 Views from our online form in our second consultation were fairly evenly divided. Some submitters who supported our recommendation echoed the arguments in our interim report. They considered that many overseas citizens remain invested in and connected to what is happening “back home”. Others thought that the current provisions were burdensome and unfair to those who cannot travel regularly. A few submitters pointed out that other countries have more permissive voting regimes for their overseas citizens.²⁹
• 7.71 Other submitters did not support extending the timeframe. They thought that overseas voters do not have enough of a stake in what happens here. They said

²⁹ For example, Canada has removed restrictions on the voting rights of overseas citizens in recent years, and similar changes to the law are underway in the United Kingdom.

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that overseas voters may not be paying taxes or otherwise contributing to Aotearoa New Zealand’s society. Some were sceptical that overseas citizens keep up with local news even if they have the means to do so, or that local news was sufficient to help them understand what is going on here if they don’t live here.

• 7.72 One submitter raised concerns about how citizens can re-establish their eligibility with as a little as a stopover in Aotearoa New Zealand, rather than having to reside here. They thought this rule would benefit wealthy citizens and disadvantage citizens who are less financially well off. They proposed requiring an intent to return as an alternative option, if restrictions of any kind were retained.
• 7.73 A few submitters suggested alternative timeframes to what we recommended, such as nine years, while one submitter proposed removing the disqualification entirely. Another submitter proposed having dedicated representation for overseas citizens (where citizens living overseas can elect their own electorate MP rather than voting in the electorate where they last lived), as some other countries do.
• 7.74 At an engagement meeting, one attendee noted that these rules affect Māori

voting rights, given the large number of Māori living in Australia.

Our final view

• 7.75 We maintain our view that the timeframe for overseas voter eligibility should be extended. The rationale that overseas citizens lose their connection to Aotearoa New Zealand over time is not sufficient to justify the current short timeframe of three years for disqualification. People have more ways than ever before to stay connected to Aotearoa New Zealand while overseas. We are not convinced that a person’s relationship to their home country is likely to fade enough after three years to warrant losing their voting rights. It seems entirely reasonable that a citizen overseas would continue to be invested in and affected by government policies beyond a single electoral cycle.
• 7.76 The current rule may also be unfair to some people who, for many valid reasons including health, family and financial circumstances, may not be able to return home regularly. Having and exercising the right to vote is an important way that people can express their membership of a community, and it should not depend on the ability to afford international airfares.
• 7.77 From a te ao Māori perspective, connections to whenua for tangata whenua are powerful and draw from deep, intergenerational histories. With this perspective in mind, losing the right to political participation after only three years away from Aotearoa New Zealand seems too limiting. Māori voters living overseas may not always be able to return regularly based on their personal circumstances.
• 7.78 We recommend that overseas citizens should only lose the right to vote after they have been abroad without returning for two electoral cycles, rather than three

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years. This period would be six years if the term of parliament remains at three years, or eight years if the term of parliament is extended to four years.

• 7.79 This extended timeframe would address some of the inequities in the current rule and future-proof for international crises and disasters like COVID-19. From a practical perspective, the number of people who have been away for longer than this time and who still want to vote may be relatively small. And if a person was disqualified for being away for longer than two electoral cycles, it wouldn’t be permanent – their voting rights would continue to be restored as soon as they returned to Aotearoa New Zealand.
• 7.80 We considered whether this restriction should be removed entirely, giving overseas citizens the right to vote no matter how long they have been away. We concluded, however, that returning home is still an essential way of showing a commitment to Aotearoa New Zealand. While people may be able to keep up with family and current affairs from a distance, coming back allows people to reconnect in a deeper way with the people, the land and the nation.
• 7.81 We also considered the suggestion that re-establishing eligibility after being overseas should require more of a connection to Aotearoa New Zealand than simply visiting. We were concerned, however, that it would introduce greater complexity into the eligibility requirements for limited benefit, given that the more permissive timeframes we have recommended should mean that more people remain eligible for longer.

Other considerations

• 7.82 To be eligible to enrol, a person must have lived in Aotearoa New Zealand continuously for at least one year at some point in their life. This rule applies to people who are born overseas but who are New Zealand citizens by descent as well as to migrants.
• 7.83 We think it is important that a person has experience living in Aotearoa New Zealand before gaining the right to vote, even if they are already a citizen. It would be difficult to create and maintain a strong connection to this country and an understanding of its electoral system without having lived here for a meaningful length of time, even if a person has family connections and visits regularly.
• 7.84 We considered possible adjustments, such as the length of time required to live in Aotearoa New Zealand or when in a person’s life it must occur. Ultimately, however, we concluded that the current rule is working well for citizens and that there is no strong case for change. We discuss our proposed changes to this rule for eligible residents below in Voting rights for residents.

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Interaction with our other recommendations

• 7.85 We discuss the term of parliament in Chapter 5. If the term of parliament were extended to four years after a public referendum, the timeframe for our recommendation would be extended because it is based on electoral cycles.
• 7.86 Our proposed changes to political donations would mean that only registered electors would be able to make donations to parties and candidates. These proposals are discussed in Chapter 13. As a result, any changes to overseas voter eligibility would have flow-on impacts for the regulation of donations.

The Panel recommends:

R20. Extending the time that New Zealand citizens can spend overseas without losing the right to vote to six years (or eight years if the term of parliament is extended).

Voting rights for permanent residents

• 7.87 In the Electoral Act 1993, a permanent resident is defined as someone who resides in Aotearoa New Zealand and is not obliged to leave immediately or within a specified time.³⁰ This definition is broader than the definition of permanent resident in the Immigration Act 2009, which defines a permanent resident as someone who holds a permanent resident visa.³¹ The electoral definition includes people who only hold a resident visa, which often grants a person the right to live in Aotearoa New Zealand indefinitely if the visa conditions are met.
• 7.88 Given these differing definitions, and as noted at the beginning of this chapter, we recommend changing the Electoral Act's use of the term “permanent resident” to “resident for electoral purposes” to avoid confusion. We use this latter term in this chapter.
• 7.89 Aotearoa New Zealand is one of the few countries in the world that allows eligible residents to vote. This policy was introduced in 1975, when the eligibility

³⁰ Electoral Act 1993, section 73.

³¹ Immigration Act 2009, section 4.

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requirement to be a British subject was removed.³² It arose in part so that British subjects from other countries who were already living here but who were not citizens would not lose their right to vote. Since then, immigrants to Aotearoa New Zealand have increasingly come from a much wider range of countries.

• 7.90 Like citizens, residents for electoral purposes must live in Aotearoa New Zealand continuously for at least one year before gaining the right to vote.³³ Some people may be granted residence visas before arriving in Aotearoa New Zealand. In these cases, they would still need to meet the requirement to live here for one year before being eligible to vote.
• 7.91 Residents for electoral purposes who become eligible to vote are disqualified if they spend more than 12 months overseas without returning to Aotearoa New Zealand.³⁴ They regain eligibility once they have re-established residency in Aotearoa New Zealand, as defined by section 72 of the Electoral Act.

Is there a case for change?

Issues identified

• 7.92 In our first consultation, only a few submitters commented on voting rights for residents. Views were mixed. Some submitters questioned whether the right to vote should be restricted to citizens only and if the requirement to live in Aotearoa New Zealand for one year is too short. We also heard that allowing non-citizens to vote can create a risk of other countries trying to influence election outcomes in their own interests through their overseas citizens.
• 7.93 Other submitters noted the positives of allowing residents for electoral purposes to vote, including that:
  • These residents are subject to our laws and taxes and contribute to the community even if they aren’t citizens, so it is fair that they should be able to be represented in parliament.
  • It encourages social integration and political participation.

³² McMillan, K., 2015. National Voting Rights for Permanent Residents: New Zealand's Experience. In:

D. Acosta Arcarazo & A. Wiesbrock, eds. Global Migration: Old Assumptions, New Dynamics. Santa Barbara: Praeger.

³³ Electoral Act 1993, section 74(1)(b).

³⁴ Parliament temporarily extended this timeframe to four years for the 2023 election only, due to the impact of COVID-19 restrictions on travel. The timeframe will revert to 12 months in December 2023.

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• Many immigrants decide to live in Aotearoa New Zealand permanently but choose not to become citizens for different reasons – for example, because their country of birth doesn’t allow dual citizenship.

• 7.94 As already noted, the different definitions of “permanent resident” in the Electoral Act and the Immigration Act 2009 have created confusion. The Electoral Commission has recommended using a clearer term, such as “resident for electoral purposes”, in the Electoral Act.

Our initial view

• 7.95 While we considered that residents for electoral purposes should continue to be able to vote, we thought that the bar was set too low for how long they must live in Aotearoa New Zealand before becoming eligible. In our view, one year was not long enough to establish a sufficient connection to Aotearoa New Zealand. We recommended extending the timeframe from 12 months to one electoral cycle (that is, to three or four years, depending on the term of parliament).
• 7.96 We thought that the time that residents for electoral purposes can spend overseas without being disqualified should stay at 12 months, on the basis that voting rights for these residents are based on actually residing in Aotearoa New Zealand. We also adopted the Electoral Commission’s suggestion to use a clearer term than “permanent resident” in the Electoral Act to avoid confusion.

Feedback from second consultation

• 7.97 Our second consultation revealed that many people found both the current rules for residents for electoral purposes and our recommended changes confusing. Some submitters seemed to think that a person needed a permanent resident visa to be eligible to vote. Others thought that the requirement to live in Aotearoa New Zealand for a certain amount of time only began to run after a person obtained the relevant visa, no matter how long they had already been in the country. There was also a lack of clarity over how residents for electoral purposes who go overseas can re-establish their eligibility. These misunderstandings have made it somewhat difficult to gauge views on our recommendations, but they do show that the rules would benefit from clarification.
• 7.98 Some submitters were concerned that the changes we proposed to the time that residents for electoral purposes must spend in Aotearoa New Zealand to be eligible would be unfair and discriminatory. They thought that a year was sufficient to have a stake in our society and to learn enough about our system of government to vote. Some pointed to voting as an important way for immigrants to connect with their new home and to have a voice on issues and laws affecting them. A few said extending the timeframe would send a message to residents that they were valued for their contribution to New Zealand’s workforce and economy but not trusted to have input into decisions that affect them.

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• 7.99 A few submitters questioned what qualified as a “sufficient connection” and whether an extended time in the country was needed to prove that connection. There were some concerns that this change would go against the trend of expanding the franchise and could diminish Aotearoa New Zealand’s standing as an inclusive democracy.
• 7.100 Other submitters supported our recommendation to extend the time requirement. They thought that one year was too short to build familiarity with Aotearoa New Zealand’s political system, culture or language. An attendee at our group meeting with organisations representing ethnic communities noted that a short timeframe creates a risk of people selling their votes or being susceptible to pressure about how to vote.
• 7.101 A few submitters proposed alternatives to our recommendation – for example, requiring a permanent resident visa to be eligible, or suggesting different timeframes for gaining eligibility ranging from two years to 10 years.
• 7.102 Some submitters thought that only citizens should be allowed to vote, arguing that citizenship demonstrates allegiance and commitment to Aotearoa New Zealand. A few submitters noted the risks of foreign interference if non-citizens are allowed to vote. Conversely, a few raised concerns that holders of temporary work visas may live in Aotearoa New Zealand long term without being allowed to vote.
• 7.103 We received less feedback on our recommendations about the time that residents for electoral purposes can spend overseas and clarifying the term “permanent resident”, but those who did comment were generally supportive. One attendee at an engagement meeting was concerned about the difference in voting rights that would result if citizens could spend six to eight years overseas without being disqualified while residents for electoral purposes could only spend 12 months overseas.

Our final view

• 7.104 We consider it reasonable for residents who live in Aotearoa New Zealand and have the right to stay here indefinitely to be eligible to vote, so long as they meet the other eligibility requirements. Granting a person the right to stay in Aotearoa New Zealand without limitation essentially invites them to make their life here.
• 7.105 Our diverse migrant communities make valuable contributions to our society, and they should continue to be able to participate in elections in Aotearoa New Zealand. If residents are paying taxes, living under our laws, and participating in our community in other ways, then they should also be able to have a say in the election of the government.
• 7.106 We have noted already that the use of the term “permanent resident” in this context is confusing. This confusion creates the risk that people – including those who hold resident visas – could be incorrectly turned away from voting or not understand that they have the right to vote here. We maintain our

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recommendation that the term “permanent resident” in the Electoral Act should be replaced with a clearer term, such as “resident for electoral purposes”.

• 7.107 We considered the option of linking the electoral definition to holders of a “residence class visa”, as defined in the Immigration Act 2009, to make the eligibility requirements even clearer. We were concerned, however, that changes to immigration law could then have unintended flow-on effects for voter eligibility, particularly if the right to vote is entrenched and, therefore, has a higher threshold for amendment (as we recommend in Chapter 2). As part of the redrafting of the Electoral Act, we propose considering whether the language used in the electoral definition could be more closely aligned to the immigration definition without being explicitly linked.
• 7.108 We also acknowledge the confusion we heard about our initial recommendation to extend the time that a resident for electoral purposes must live in Aotearoa New Zealand to become eligible from one year to a full electoral cycle (three or four years). Many people mistakenly believed that this time would only begin to count after a person becomes a resident for electoral purposes. We would like to clarify that the time requirement starts from when a person first begins living here, regardless of whether they are on a temporary or resident visa at that time.
• 7.109 On that basis, we confirm our recommendation to extend the time that residents for electoral purposes must live in Aotearoa New Zealand before gaining the right to vote to three years (or four years if the term of parliament were extended). We emphasise that this extension would only affect people who are granted residency within their first three to four years in Aotearoa New Zealand. It would not create any additional time requirements for people who are granted residency after this timeframe, as shown in the scenarios below:

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• 7.110 This requirement is intended to ensure that a person has some knowledge and lived experience of Aotearoa New Zealand, including its laws, customs and politics. In our view, the current requirement of one year creates risks:
  • People who are granted residency before arriving in Aotearoa New Zealand could be able to vote one year after their arrival, whether or not they are committed to staying here longer term.
  • One year may not be sufficient to become adequately acquainted with the political system to be able to responsibly exercise such an important right as voting.³⁵ This knowledge includes understanding our MMP voting system, te Tiriti / the Treaty, as well as our system of representation for Māori.
  • People may be more susceptible to foreign interference, including being pressured or influenced to vote a certain way, when they are new to Aotearoa New Zealand. They may still have strong ties and connections to their home country and limited knowledge of Aotearoa New Zealand’s democratic system and traditions. There is a need to future-proof against the growing threat of foreign interference in elections.
• 7.111 Given these risks, we consider eligibility should be based on having spent three years (or four years, if the term of parliament is extended) in the country. Aligning this timeframe to the length of the electoral cycle means that all residents for electoral purposes will have seen and experienced an election before they are able to participate in one. This position reflects that while voting is a right for citizens, it is a privilege granted to residents. We see it as important and reasonable that residents should first be exposed to our democratic traditions before being granted such a significant right. Even with this change, Aotearoa New Zealand would still have one of the most inclusive systems for non-citizen voting in the world.
• 7.112 While we recommend extending how long citizens can spend overseas without being disqualified, we think it should remain at 12 months for residents for electoral purposes. This approach again reflects the different nature of the voting rights of citizens, which are fundamental rights, and the voting privileges of residents. Residents for electoral purposes are granted the right to vote on the

³⁵ Research is limited, but some studies have indicated that a lack of political knowledge can be a barrier to participation for new immigrants but political knowledge grows over time once an immigrant has settled in a new country. Research also suggests that immigrants may be focused on more pressing practical concerns in their first few years in a new country, even if they value electoral rights. See, for example, Barker, F. & McMillan, K., 2017. Factors influencing the electoral participation of Asian immigrants in New Zealand. Political Science, 69(2), pp. 139-160; Adman, P. & Strömblad, P., 2018. Political Integration in Practice: Explaining a Time-Dependent Increase in Political Knowledge among Immigrants in Sweden. Social Inclusion, 6(3), pp. 248-259. We talk about civics and citizenship education, including for new migrants, in Chapter 11.

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basis that they actually reside in Aotearoa New Zealand.³⁶ By living here, they demonstrate a commitment to joining our social and political community. If they subsequently choose to live elsewhere, then their entitlement to vote no longer holds. We consider that after a year spent overseas, a person can no longer be considered to reside in Aotearoa New Zealand.

• 7.113 This underlying requirement to reside in Aotearoa New Zealand also affects how eligible residents for electoral purposes can re-establish their eligibility after being disqualified for being overseas. Unlike citizens, who can become eligible again by simply visiting Aotearoa New Zealand, residents for electoral purposes must re-establish residency here, as defined in the Electoral Act, to be entitled to vote again.³⁷
• 7.114 We acknowledge that the relationships between the provisions of the Electoral Act that collectively determine resident voter eligibility are not as clear as they could be. We propose that these rules should be clarified as part of redrafting the Electoral Act, as we have proposed in Chapter 2.

Interaction with our other recommendations

• 7.115 We discuss the term of parliament in Chapter 5. If the term of parliament were extended to four years after a public referendum, our recommendation about the time residents for electoral purposes must live in Aotearoa New Zealand to be eligible to vote would be extended because it is based on electoral cycles.
• 7.116 It’s important that people who come to live in Aotearoa New Zealand have access

to the information and education they need to exercise the right to vote

³⁶ Refer to the definition of “residence” or “to reside” in section 72 of the Electoral Act 1993. A key criterion of the definition is that “a person resides at the place where that person chooses to make his or her home by reason of family or personal relations, or for other domestic or personal reasons” (section 72(3)).

³⁷ To avoid confusion, re-establishing residency does not require a person to repeat the requirement to have lived in Aotearoa New Zealand for a certain number of years, as that requirement only needs to be met once and can be at any point in a person’s life.

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meaningfully. Our recommendation for stronger civics education led by and for communities (discussed in Chapter 11) could help to ensure that happens.

The Panel recommends:

R21. Replacing the use of the term “permanent resident” in the Electoral Act with “resident for electoral purposes” to avoid confusion with the Immigration Act 2009.

R22. Keeping the time that residents for electoral purposes can spend overseas without losing the right to vote at 12 months.

R23. Extending the time that residents for electoral purposes must spend in Aotearoa New Zealand before gaining the right to vote to three years (or four years if the term of parliament is extended).

Voting rights and criminal offences

• 7.117 There are three situations when a criminal offence may disqualify someone from being eligible to vote.³⁸
• 7.118 The first situation relates to prisoners. The rules for prisoner voting have changed many times since the 1850s, from all prisoners being able to vote, to no prisoners being able to vote, and several positions in between. Currently, prisoners are not allowed to vote if they are sentenced to imprisonment for life, preventive detention or prison for three years or more.³⁹
• 7.119 Second, in some cases, a person who has committed a crime may not be in prison on mental health grounds or due to an intellectual disability. This situation may occur if a person has been found unfit to stand trial, acquitted on the legal grounds of insanity, committed to a hospital or secure facility upon conviction, or is in prison and requires compulsory care or treatment. In these situations, a person loses the right to vote if they are detained in a hospital or secure facility

³⁸ UN HRC, above n 5, p. 5. The UN HRC has said that if conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence.

³⁹ Electoral Act 1993, section 80(1)(d).

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for more than three years.⁴⁰ This disqualification essentially provides for consistent treatment with other offenders.

• 7.120 Finally, anyone whose name is on the Corrupt Practices List is disqualified from voting for three years.⁴¹ A person is placed on the Corrupt Practices List if they have been found guilty of a serious electoral offence, such as voter impersonation or bribery. We discuss the Corrupt Practices List and its consequences for voting rights in Chapter 18.

Recent history of prisoner voting in Aotearoa New Zealand

• 7.121 When the Electoral Act 1993 was passed, it had the same rules for prisoner voting as we have currently.
• 7.122 In 2010, Parliament voted to remove the right to vote for all sentenced prisoners. In 2015, the High Court declared that a blanket ban on prisoner voting was an unjustifiable limitation on the rights protected by the New Zealand Bill of Rights Act 1990.⁴² The High Court did not rule on whether the current disqualification, based on a sentence of three years or more, is inconsistent with the New Zealand Bill of Rights Act 1990.
• 7.123 The Waitangi Tribunal also considered the complete restriction of prisoner voting rights in 2020. In its report on Wai 2870, He Aha I Pērā Ai?, it found that the ban seriously breached Tiriti / Treaty principles of active protection and equity. The Waitangi Tribunal reached this finding because the ban disproportionately affected Māori, who are overrepresented in the prison system as a result of systemic bias and social and economic disadvantage. It also found that disenfranchisement has a wider impact than its effect on individual prisoners, impacting on their whānau and communities.
• 7.124 The Waitangi Tribunal recommended all restrictions on prisoner voting should be removed as “all Māori have a Treaty right to exercise their individual and collective tino rangatiratanga by being able to exercise their vote in the appointment of their political representatives”.⁴³
• 7.125 The blanket ban introduced in 2010 was reversed in 2020 and replaced with the current rules.

⁴⁰ Electoral Act 1993, section 80(1)(c).

⁴¹ Electoral Act 1993, section 80(1)(e).

⁴² Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791. This decision was upheld by the Court of Appeal and the Supreme Court.

⁴³ Waitangi Tribunal, 2020. He Aha I Pērā Ai? The Māori Prisoners' Voting Report, Wellington: Legislation Direct, p. 34.

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Is there a case for change?

Arguments against change

• 7.126 The current rule removes the right to vote from more serious offenders sentenced to three years or more in prison. Some submitters to our first consultation thought this rule was fair and noted that most prisoners in Aotearoa New Zealand can still vote. For the year ended 30 June 2022, nearly 90 per cent of prison sentences were for three years or less.
• 7.127 Other submitters thought that removing the right to vote was a fair consequence for criminal activity irrespective of the seriousness of the offence. Some people considered prisoners to be “outside of society” while in prison, so they should not have a say in how society is run.

Arguments for change

• 7.128 Many submitters to our first consultation supported easing, or entirely removing, restrictions on prisoner voting rights. While imprisonment involves the loss of some basic rights, most obviously freedom of movement and association, submitters in favour of change generally thought there was no justification for why the loss of voting rights should be a further part of any punishment. These submitters saw the current restrictions on prisoner voting rights as a violation of human rights and inconsistent with the New Zealand Bill of Rights Act 1990.
• 7.129 Many of these submitters noted that prisoners are affected by government decisions and continue to have a stake in the future of the country. They thought that voting may help prisoners to stay connected to their sense of citizenship and community while serving their sentence. These people considered that losing the right to vote may compound civic disengagement and negatively affect rehabilitation and reintegration into society.
• 7.130 Submitters who supported change cited a range of arguments to support their position, including that:
  • Upon release, re-enrolment rates may be low among prisoners, resulting in longer-term impacts on voting habits.
  • Tying the right to vote to sentence lengths can result in unfair and arbitrary outcomes, as two people convicted of the same crime can receive different sentences depending on the circumstances.
  • Restrictions on prisoner voting are a breach of te Tiriti / the Treaty due to the disproportionate impact on Māori, as noted by the Waitangi Tribunal and others.
• 7.131 A few submitters to our first consultation suggested keeping restrictions on prisoner voting but targeting them to prisoners serving prison sentences for

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particular offences. Other submitters supported removing or further reducing voting rights for prisoners.

Our initial view

• 7.132 In our interim report, we recommended that all prisoners should be granted the right to vote, regardless of their sentence length. We considered that this approach was most consistent with the protection of basic civil rights and supported our objectives of fairness and encouraging participation.

Feedback from second consultation

• 7.133 Views on prisoner voting were strongly divided in our second consultation, although the arguments on both sides were consistent with what we heard in our first consultation.
• 7.134 Several submitters who supported our recommendation argued that voting is a right, not a privilege. They thought the loss of this right shouldn’t form part of a prisoner’s punishment. Submitters noted that prisoners are still affected by the laws passed by parliament. Others commented that most prisoners will re-enter community life, and political participation could be a way of maintaining a connection to their local community. A few submitters raised te Tiriti obligations and the Waitangi Tribunal’s He Aha I Pērā Ai? report on prisoner voting.
• 7.135 Many submitters who completed our online form opposed this recommendation. Most did so on the basis that they considered it appropriate that committing a serious crime should result in a loss of voting rights. They thought prisoners should have to earn that privilege again. Some submitters commented that prisoners are not contributing to society and have shown a lack of respect for the law, which they thought should disqualify them from voting. A few questioned whether prisoners have the access to information needed to make an informed vote. Some objected to the comments in the interim report about the disproportionate impact on Māori as a reason for change.
• 7.136 Some of these submitters opposed prisoner voting rights in general, while others thought that the current provisions, which allow prisoners serving shorter sentences to vote, were fit for purpose. One person questioned whether only people convicted of treason or terrorism, as crimes against the state, should lose their voting rights.

Our final view

• 7.137 We confirm our initial view that all prisoners should have the right to vote.
• 7.138 The New Zealand Bill of Rights Act 1990 provides for the right of citizens to vote. Voting is an inherent right that should not be removed when a person is in prison without strong justification. The law has generally moved away from the concept

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of voting as a privilege and by extension the need for a person to prove their moral worth to be able to vote. What society seeks to achieve by sentencing a person to prison is fundamentally different from what it seeks to achieve through voting in elections, which upholds the principles of participation and representation. On that basis, the loss of voting rights should not generally be used as an additional form of punishment.

• 7.139 The current rule is also unfair. People may receive different sentences for the same crime, depending on a range of circumstances, which means that some people could have their right to vote affected while others do not.
• 7.140 Prisoners and their families continue to be affected by government decision- making, both during and after their sentences. It is therefore important that prisoners can still exercise the right to political participation.
• 7.141 Giving all prisoners the right to vote could support additional positive outcomes. Enrolling and voting could be an educative experience for prisoners and could contribute to their rehabilitation and reintegration by making them feel that they have a stake in the future of our society. It could help to establish positive voting habits that could be shared intergenerationally. These potential benefits could be enhanced through greater civics education and community engagement with prisoners.
• 7.142 Critically, the current rule disproportionately impacts Māori. As of June 2023, 52.7 per cent of the prison population was Māori. In 2020, the Waitangi Tribunal heard evidence that, because of systemic bias and social and economic disadvantage, Māori are sentenced to prison at a higher rate than non-Māori, are more likely than non-Māori to be given a custodial sentence, less likely to be granted leave for home detention, and more likely to be denied parole. Our Terms of Reference required us to consider how the electoral system can uphold te Tiriti / the Treaty, and from this perspective, we consider it crucial to address the impact of these inequities on voting rights.
• 7.143 We considered whether specific crimes, such as treason, should be treated differently because of the damage they seek to inflict on society. We also discussed sentences where a person is essentially removed from the community permanently. We concluded, however, that the rationale set out above still held in these circumstances.
• 7.144 The related disqualification for people with mental or intellectual disabilities who have committed criminal offences should likewise be removed. These members of our communities also have rights to political participation, as affirmed by the United Nation Convention on the Rights of Persons with Disabilities, and they could benefit from being connected to society by participating in elections.

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Interaction with our other recommendations

• 7.145 We note the importance of people detained in hospitals or secure facilities having access to ways of enrolling and voting to ensure they can exercise their right to vote, as discussed in Chapter 11.
• 7.146 We think a different approach to voting rights is justified for people on the Corrupt Practices List because corrupt practices specifically target the integrity of the electoral system. We discuss our recommendation on this issue in Chapter 18.

The Panel recommends:

R24. Granting all prisoners the right to vote.

Final Report | Chapter 8: Enrolling to Vote ¹⁹⁹

8. Enrolling to Vote

• 8.1 Before a person can vote, they must enrol in an electorate.¹ This is done by filling out an enrolment form, either online, by post, or in person. Since the 2020 election, enrolment can happen any time up to and including election day.
• 8.2 People can only be enrolled in one electorate at a time.² A person must enrol in the electorate that they have most recently lived in for at least a month.³ If they have never lived in one electorate for at least a month, then it is the electorate in which they last lived.⁴ People who may not have a regular place of residence can enrol at the last residential address they had, even if it was some time ago, or where they spend most of their time.⁵
• 8.3 Good enrolment processes protect the integrity of the voting process and the wider electoral system. Enrolment is a way to check that people are eligible to vote and registered in the right electorate. It also provides a way to detect if people are abusing the voting system – for example, by voting multiple times.
• 8.4 The principles underpinning enrolment – that it is accurate, accessible and accountable, while also protecting privacy – are enduring, while the methods and process involved may change over time.
• 8.5 In this chapter we discuss whether changes should be made to the enrolment process, including whether it should remain compulsory to enrol and whether enrolment should be automatic or more digitised. We also discuss the Māori electoral option.

¹ Electoral Act 1993, section 60.

² Electoral Act 1993, section 75.

³ Electoral Act 1993, section 74(c)(i).

⁴ Electoral Act 1993, section 74(c)(ii).

⁵ Providing enrolment for people experiencing homelessness is a right guaranteed under the International Covenant on Civil and Political Rights (ICCPR). The General comment no. 25, The right to participate in public affairs, voting rights and the right of equal access to public service (article

25) UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996) states at p. 5 that “if residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote.”

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Compulsory enrolment

• 8.6 Compulsory enrolment was introduced for general electorates in 1924 and for Māori electorates in 1956. Enrolment is compulsory for everyone who is eligible, except for New Zealand citizens and residents for electoral purposes living overseas who can choose to enrol.⁶ It is a criminal offence to knowingly and willingly fail to enrol, though in practice the offence is not prosecuted.⁷

Is there a case for change?

Issues identified

• 8.7 The idea behind compulsory enrolment is that it is reasonable, in the interests of facilitating a healthy democracy, for the law to require those eligible to enrol. At the 2023 election, 94.7 per cent of estimated eligible voters were enrolled.
• 8.8 Making enrolment compulsory helps ensure the electoral roll is accurate and complete, which enables electoral officials to administer elections and to prevent and detect electoral manipulation. Enrolment information is also used for other purposes, such as jury selection, political campaigning, and health and social science research, providing additional benefits to having comprehensive and up- to-date electoral rolls. We discuss access to electoral rolls in Chapter 16.
• 8.9 It is possible that compulsory enrolment may encourage people to enrol who would not do so otherwise, even if it is not enforced. The low penalties for failing to enrol and the light touch approach to enforcement mean it is not punitive in practice. The thinking is that a more punitive approach could inadvertently discourage participation.
• 8.10 In our first consultation, many submitters who answered our question about the enrolment process supported the status quo. We heard from a few submitters who took the view that enrolling to vote should be a choice. They thought that the right to vote is a fundamental human right that should be exercised freely rather than treated as an obligation to be enforced.⁸ Some people may find the requirement to enrol to be an imposition by the government on their freedom to make that choice.

⁶ Electoral Act 1993, section 82.

⁷ Electoral Act 1993, section 82(5). The maximum fine is $100 for the first conviction and $200 for any subsequent conviction. Enrolling means a voter is not liable for prosecution for their earlier failure to enrol.

⁸ The international and domestic legal framework for the right to vote is discussed in Chapter 1.

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• 8.11 Other people noted that being enrolled does not mean that a person will vote, so compulsory enrolment may not result in higher turnout rates. Some submitters called for greater enforcement of compulsory enrolment.

Our initial view

• 8.12 In our interim report, we recommended retaining compulsory enrolment as an appropriate and reasonable requirement. We considered the issues identified and did not see a strong case for change.

Feedback from second consultation

• 8.13 We received limited feedback on compulsory enrolment – a few submitters supported compulsory enrolment while a few others did not.
• 8.14 The arguments we heard in our second consultation were largely the same as those from the first consultation. Submitters opposing compulsory enrolment considered that people should not be compelled to act for the benefit of the political system and that compulsory enrolment is inconsistent with voluntary voting. Aside from a small number of these views, there was no strong support for removing compulsory enrolment.
• 8.15 Other views expressed were that the lack of enforcement makes compulsory enrolment ineffective.

Our final view

• 8.16 Our final view is that compulsory enrolment should be retained. It could be argued that eligible voters have a civic duty to participate in elections, and requiring people to enrol to vote is a reasonable step for the state to ask of its citizens and those given the right to reside here permanently.
• 8.17 Compulsory enrolment has other benefits. It contributes to having complete and accurate electoral rolls, which supports the effective administration of elections, the calculation for the Māori electorates, and the integrity of the electoral system.
• 8.18 We also considered whether the lack of enforcement of compulsory enrolment presents a problem. There are good reasons for not strictly enforcing compulsory enrolment, including that strict enforcement may negatively impact people’s experience of the electoral system. The symbolic power of the law means there is value in making enrolment a legal requirement even if it is not strictly enforced.
• 8.19 In Chapter 18, we recommend an overhaul and consolidation of all electoral offences to ensure they are still fit-for-purpose. This process would provide an opportunity to consider whether the offences and penalties relating to compulsory

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enrolment are still appropriate. In general, we consider the penalties should be kept low for the reasons above.

The Panel recommends:

R25. Retaining compulsory enrolment.

Compulsory voting

• 8.20 Although enrolment is compulsory in Aotearoa New Zealand, it is not compulsory to vote. In some countries that have compulsory voting, such as Australia, people are only required to attend a polling place and they can choose to cast an informal ballot.⁹

Is there a case for change?

Issues identified

• 8.21 Some people see voting as a civic responsibility that comes with the rights of citizenship. Voting is important to ensure that government is based on broad and equal representation of its citizens. Some consider that by making participation mandatory, compulsory voting can support the legitimacy of election results and our democratic system more broadly.
• 8.22 On the other hand, some people think that compulsory voting infringes on democratic freedoms. They argue that people should have the right to choose not to vote. Some people may have good reasons for not wanting to vote – for example, they may not trust the government, or they may not like any of the candidates or parties.
• 8.23 International evidence shows that voter turnout is higher in countries that have compulsory voting. Submitters to our first consultation who supported voting being mandatory considered it would improve participation, citing Australia as an example, and some noted it may also help to reduce inequities experienced by communities with lower turnout.¹⁰

⁹ An informal ballot is a ballot paper that has not been completed correctly.

¹⁰ Communities that have lower turnout are often marginalised in other ways. We discuss improving voter participation in Chapter 11.

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• 8.24 That said, Aotearoa New Zealand already has comparably high voter turnout without voting being compulsory. Voter turnout in the 2023 election was just over 78 per cent of enrolled electors.
• 8.25 In other countries that have compulsory voting, people can often choose to submit a blank or informal ballot. Introducing compulsory voting could result in more informal ballots and more poorly informed or random votes.¹¹

Our initial view

• 8.26 In our interim report, we supported retaining voluntary voting. We noted the improvement in voter turnout in recent elections and the importance of freedom of choice as reasons not to adopt compulsory voting.

Feedback from second consultation

• 8.27 We received only a few submissions that discussed voluntary voting. Amongst these, slightly more submitters supported voluntary voting than opposed it. The arguments on both sides largely mirrored what we heard in our first consultation.
• 8.28 A few submitters thought compulsory voting could increase distrust among some communities, including Māori who may have lower trust in government arising from breaches of te Tiriti o Waitangi / the Treaty of Waitangi (te Tiriti / the Treaty). Others thought that education and appealing candidates and policies were more likely to encourage turnout than compulsion.
• 8.29 Support for compulsory voting centred on lifting voter turnout leading to a stronger democracy and more legitimate parliament.

Our final view

• 8.30 We still consider that requiring people to vote may be a step too far, as it constrains freedom of choice. Compulsory enrolment does not infringe freedoms to the same extent, especially if our recommendations for increased privacy of roll information are adopted. From the perspective of te Tiriti / the Treaty, compulsory voting may represent an overstep of kāwanatanga by mandating Māori participation in this sphere.
• 8.31 Compulsory voting is often promoted as a way to improve voter turnout. However, it would be a large shift from our current approach of encouraging participation.

¹¹ In the 2022 Australian election, 3.4 per cent of votes cast for the Senate and 5.1 per cent of votes cast for the House of Representatives were informal votes. By comparison, in the 2020 New Zealand election, 0.7 per cent of party votes and 2.0 per cent of candidate votes were informal.

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We do not think current voter-participation rates justify such a big change to our electoral system and our political culture.

The Panel recommends:

R26. Retaining voluntary voting.

Māori electoral option

• 8.32 The Māori electoral option allows people of Māori descent to choose whether to enrol on the general roll or the Māori roll.¹² Only people of Māori descent can enrol on the Māori roll and vote in the Māori electorates.
• 8.33 The Māori electoral option plays an important role in determining the number of Māori electorates (and therefore the number of Māori electorate MPs in parliament) and the boundaries of those electorates. The number of Māori electorates reflects the choice that Māori electors make between the Māori and general rolls. For example, if more Māori electors choose to be on the Māori roll, there may be more Māori electorates, and if more Māori electors choose to be on the general roll, there may be fewer Māori electorates.
• 8.34 The Māori electorates are constitutionally significant and have particular importance for Māori. The 1986 Royal Commission on the Electoral System noted:¹³

Although they were not set up for this purpose, the Māori [electorate] seats have nevertheless come to be regarded by Māori as an important concession to, and the principal expression of, their constitutional position under the Treaty of Waitangi. To many Māori, the seats are also a base for a continuing search for more appropriate constitutional and political forms through which Māori rights (mana Māori in particular) might be given effect.

¹² Electoral Act 1993, sections 76-78.

¹³ Royal Commission on the Electoral System, 1986. Report of the Royal Commission on the Electoral System, Wellington: House of Representatives, p. 86.

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• 8.35 Similarly, the Waitangi Tribunal subsequently commented:¹⁴

The Māori [electorate] seats have come to be regarded by many Māori as the principal expression of their constitutional position in New Zealand. They have been seen by Māori as an exercise, although a limited one, of their tino rangatiratanga guaranteed to them under the Treaty of Waitangi.

• 8.36 Parliament recently changed the law through the Electoral (Māori Electoral Option) Legislation Act 2022, which came into effect in March 2023. Previously, Māori could only choose which roll to be on when they first enrolled and during a four-month period every five to six years (aligned to the timing of the national census). Now, the Māori electoral option can be exercised at any time except for the three months before election day for a general or local election, or after the notice of vacancy has been published ahead of a by-election in that particular electorate.¹⁵
• 8.37 The Electoral Commission is required to send information to Māori electors about how to exercise the Māori electoral option ahead of general and local elections (but before the enrolment update campaign, which is discussed below in Modernising enrolment services).¹⁶ The Electoral Commission’s first information campaign under the new rules began in April 2023, and Māori electors were able to change rolls until mid-July 2023, ahead of the close-out period for the 2023 general election.
• 8.38 The Māori electoral option is also relevant to local body elections that have a Māori ward or constituency. In recent years, many Māori wards have been established at the local government level. If a person of Māori descent is on the Māori roll, then they vote in both a Māori electorate for the general election and in their local Māori ward for local body elections. Currently, a person of Māori descent cannot be on different rolls for general and local elections at the same time – they can either be on the Māori roll for both or the general roll for both.

Is there a case for change?

• 8.39 As noted above, parliament changed the rules for the Māori electoral option in 2022. We take these new rules as our starting point for considering whether further changes are needed.

Issues identified

• 8.40 The recent law change sought to address the most commonly raised issue relating

to the Māori electoral option by providing greater flexibility on when the option

¹⁴ Waitangi Tribunal, 1994. Maori Electoral Option Report, Wellington: Brooker’s Wellington, p. 11.

¹⁵ The exception ahead of by-elections does not apply in the lead up to local by-elections, due to the number and frequency of these elections.

¹⁶ Electoral Act 1993, section 89DA.

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Earlier recommendations

2011, 2014, 2017 and 2020 Electoral Commission post-election reports

In its 2011 and 2014 post-election reports, the Electoral Commission recommended allowing voters of Māori descent to change roll type once each electoral cycle. In its 2017 post-election report, the Electoral Commission recommended that voters of Māori descent should be able to exercise their choice of roll at any time, while it recommended a review of the provisions limiting the exercise of the Māori electoral option in its 2020 post-election report.

2014 Justice Select Committee

The Justice Select Committee recommended allowing voters of Māori descent to change roll

type once each electoral cycle.

can be exercised. This issue had been regularly identified as a substantial barrier to participation.

• 8.41 Many submitters to our first consultation supported these changes and did not raise further issues. However, the bill was still under consideration by parliament when our engagement closed, so submitters to our first consultation did not have an opportunity to comment on the final law as enacted.
• 8.42 The main change to the bill in its final stages was to restrict the exercise of the Māori electoral option in the three months before general and local elections (in addition to the period before a by-election). Proponents of this change argued it was necessary to prevent tactical roll-switching, which is the idea that voters might change rolls to vote in electorates where a contest is considered tight. For by-elections in particular, by switching rolls a person could become eligible to vote in an election that they would not otherwise have been eligible for.
• 8.43 However, the limit on changing between rolls in the three-month period before general and local elections may mean some people are unable to exercise the Māori electoral option. Data has shown that many more Māori electors seek to exercise the option closer to an election, when voter awareness is higher, than at other times. For example, 24,000 people requested to exercise the option outside the option period in 2020, an election year, compared with about 5,500 people total across 2018 and 2019 (non-election years).¹⁷ Of these requests in 2020, over 15,000 were in the three-month period immediately before election day. In this

¹⁷ Electoral Commission, 2021. Report of the Electoral Commission on the 2020 General Election and referendums, Wellington: Electoral Commission, p. 56. These figures do not include people who were able to change rolls during the four-month option period in 2018.

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way, barriers to participation will persist even though the period for exercising the option has been greatly extended.

• 8.44 In addition, some people may want to be on one roll for general elections and another for local elections. As more local bodies create Māori wards, voters of Māori descent will have more occasion to exercise the option ahead of local elections. The recent law change allows eligible voters to change rolls between general and local elections. However, the current rules do not allow them to be on different rolls for different elections simultaneously. This means they would have to actively change their roll choice ahead of each election.

Our initial view

• 8.45 Our initial view was that the recent law change did not go far enough. We recommended that Māori electors should be able to change rolls throughout the voting period for general and local elections, while keeping the close-out period ahead of by-elections. We were concerned that the restriction before general and local elections would prevent Māori electors from updating their roll choice exactly when they are most likely to be engaged with elections. We also proposed better education and engagement about the Māori electoral option.
• 8.46 In addition, we recommended that people of Māori descent should be able to be on one roll for general elections and a different roll for local elections at the same time, if they choose. There are many reasons why people of Māori descent may want to be on different rolls for national and local elections, and the current system creates an extra administrative barrier to voting for some people of Māori descent.

Feedback from second consultation

• 8.47 Views were divided on our recommendation to remove more restrictions on when the Māori electoral option could be exercised. Some submitters supported our recommendation to have the Māori electoral option continuously available. They noted that it would remove barriers to participation and support the ability of Māori electors to exercise tino rangatiratanga.
• 8.48 Most submitters to our online form opposed our recommendation to extend the timeframe for the Māori electoral option. Some of these submitters were concerned that tactical roll-switching could distort election outcomes. A few thought a longer time was not necessary as people did not frequently change their choice of roll or that it was too soon to assess the impact of the recent law change. Others raised potential administrative challenges and the impact on the boundary review process, including the proportionality of representation. Some submitters opposed the Māori electoral option generally because they viewed it as unequal treatment.
• 8.49 A few submitters proposed alternative timeframes – for example, up to one month before an election, or until the day before advance voting starts.

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• 8.50 Some submitters supported allowing Māori voters to be on different rolls for general and local elections simultaneously, noting that it would provide greater flexibility. One submitter noted that while it is now possible for voters to change rolls between general and local elections, the process is not easy. A few submitters opposed this recommendation, mostly on the basis that they did not support the existence of the Māori electorates.
• 8.51 The Electoral Commission, Local Government New Zealand, and the Department of Internal Affairs raised the potential operational and cost implications of allowing people to be on different rolls simultaneously. In particular, the Electoral Commission thought that a new enrolment IT system could potentially be needed to implement this recommendation.

Our final view

• 8.52 While the recent law change helps to address a long-standing issue for Māori voters, we still hold the view that the exception ahead of general and local elections is an unnecessary barrier and should be removed. This change would allow Māori voters to change rolls throughout the voting period, including on election day, for general and local elections.
• 8.53 The period just before an election is when people are most likely to be engaged in their choice of roll. In the three months immediately before the 2023 election, more than 20,000 people requested but were unable to exercise their choice to change rolls. This figure indicates that this barrier to participation has not been resolved by the recent law change.
• 8.54 The main argument we heard against removing the close-out period ahead of general and local elections was the risk of tactical roll-switching. There is no evidence that tactical roll-switching occurs since it has not been possible to date. Māori electors were previously only able to change rolls once every five to six years and are still prohibited from changing rolls close to an election. If the restrictions were removed, we think the risk of tactical roll-switching is minimal – one study has indicated that only a very small fraction of Māori voters responds to strategic incentives, such as influencing the outcome of a close election, to change rolls.¹⁸ And even if there were some tactical roll-switching, we consider it is unlikely to have any significant impact. The number of Māori electors who changed rolls before the 2023 election was under 15,000, compared with over 3.5 million people who were enrolled. The impact on overall representation would also be diminished if our recommendation to abolish the one-electorate seat threshold was adopted.
• 8.55 We do think there is a case for keeping the close-out period before by-elections. In general, we consider that by-elections should be a like-for-like exercise as far as

¹⁸ Riambau, G., 2020. Māori in New Zealand: voting with their feet? Political Science, 72(2), pp. 93-117.

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possible, where the same voters who elected a representative in the general election choose a new representative in a by-election.

• 8.56 We also heard concerns about the administrative implications and the impact on the boundary review process if there were greater flexibility to exercise the Māori electoral option. The Electoral Commission has previously advised that it would be feasible to allow Māori voters to change rolls in the advance voting period and on election day for general elections. While the change may lead to more special votes, the Electoral Commission did not anticipate it would have any significant operational or financial impact.¹⁹ And while allowing Māori electors to change rolls at any time could have some marginal impact on the population size within electorates, there are in any case always fluctuations in electorate populations between boundary reviews (for example, from people moving).²⁰ The average number of people who changed rolls before the 2023 election (either from the Māori to the general roll or the general roll to the Māori roll) was just over 2,000 people per Māori electorate.
• 8.57 We consider that any potential negative impacts, which we consider small, are outweighed by the benefits of allowing Māori voters to exercise their roll choice at any time. This change would remove a barrier to participation and support Māori rights to political participation.
• 8.58 To be as effective as possible, the greater flexibility to exercise the Māori electoral option should be accompanied by improved information and engagement. The available evidence indicates that many people of Māori descent need to be made aware of and understand the option, and how it affects the number of Māori electorates, to be able to exercise it meaningfully.²¹ Removing the pre-election restrictions would mean engagement could be done as part of enrolment update campaigns.
• 8.59 We also maintain our recommendation that people of Māori descent should be able to be on one roll for general elections (for example, the general roll) and a different roll (for example, the Māori roll) for local elections if they so choose. With the recent growth of local Māori wards around the country, this choice has become increasingly relevant for Māori voters.

¹⁹ Ministry of Justice, 2021. Regulatory Impact Statement: Timing and frequency of the Māori Electoral

Option, Wellington: Ministry of Justice.

²⁰ Such population changes can be quite major. For example, the Christchurch East electorate saw its population reduce significantly after the 2010 and 2011 Canterbury earthquakes – between Census 2006 and Census 2013, its population decreased by 16.6 per cent. As a result, its boundaries were expanded for the 2014 election.

²¹ Greaves, L., Hayward, J., Barnett, D., Crengle, S. & Clark, T.C., 2023. The predictors of Māori electoral roll choice and knowledge: rangatahi Māori voter enrolment in a representative New Zealand youth survey. Kōtuitui: New Zealand Journal of Social Sciences Online, 18(3), pp. 290-309.

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• 8.60 There may be many reasons why voters of Māori descent may want to be on different rolls for national and local elections. We consider that allowing them to make separate roll choices for national and local elections, rather than having to update their roll choice between elections, will remove an administrative barrier. In this way, the Crown can uphold its Tiriti / Treaty obligations to actively protect Māori citizenship rights and participation by ensuring Māori have the freedom to choose rolls.
• 8.61 We acknowledge the Electoral Commission’s comments that implementing this recommendation would require significant change to the current enrolment system, including potentially a new enrolment IT system. However, we do not consider these challenges and costs are a reason in themselves not to recommend this change, which we think would improve services to voters.

Other considerations

• 8.62 During our first consultation, we heard suggestions that Māori should be able to enrol in the rohe where they whakapapa to instead of where they currently live. Some Māori may hold a stronger connection to their tūrangawaewae and may want to have a say in who represents that community. Likewise, some Māori may leave their rohe and want to remain on the Māori roll but may feel that doing so infringes on the rights of mana whenua in the area where they reside. A few submitters endorsed further work on this idea in our second consultation.
• 8.63 We think this option is an interesting proposal to give effect to te Tiriti / the Treaty, but our view is that there are complex matters of tikanga as well as practical administration that would need to be worked through. This review does not have the means to consider these issues in appropriate depth, but we see this as an area that could benefit from further exploration by people with expertise in tikanga and electoral administration in the future.
• 8.64 In our first consultation, we also heard from people who thought that Māori should be automatically enrolled on the Māori roll if they have not stated which roll they want to be on. These submissions were premised on the idea that Māori would be enrolled on the general roll by default unless they “opt out” in favour of the Māori roll.
• 8.65 People of Māori descent are given the option to choose between rolls when they first enrol. The enrolment form has been updated so that it is not possible for a person to identify as Māori when enrolling and then not choose a roll. We therefore think this issue has been addressed at an operational level. We discuss automatic enrolment more generally below and our view that it is important that people of Māori descent get to make a choice about which roll they want to be on.

Interaction with our other recommendations

• 8.66 In Chapter 7, we recommend lowering the voting age to 16. This would mean 16- and 17-year-olds of Māori descent would get to choose whether to go on the Māori

Final Report | Chapter 8: Enrolling to Vote ²¹¹

roll or the general roll when enrolling. As noted above, education will be vital to ensuring that rangatahi Māori have the information they need to understand the Māori electoral option.

• 8.67 In Chapter 11, we recommend funding for community-led initiatives to support voter engagement and participation. These initiatives could include enrolment outreach efforts and education about the Māori electoral option.

The Panel recommends:

R27. Allowing the Māori electoral option to be exercised at any time up to and including election day for general and local elections, while retaining the current prohibition ahead of by-elections.

R28. Allowing anyone of Māori descent to be registered simultaneously on one

roll for general elections and a different roll for local elections.

R29. Improving education and engagement about the Māori electoral option.

Modernising enrolment services

• 8.68 Currently, a person must complete and send an enrolment form to the Electoral Commission either by post, in person or online, including when they move address.²² For some, this process may be a barrier to participation.
• 8.69 Since 2019, people have been able to enrol or update their enrolment details online with valid proof of identity.²³ The number of people using digital services for enrolment has rapidly increased in recent years, driven by changing preferences and the decline of post. In our first consultation, the Electoral Commission told us that 37 per cent of all monthly enrolment transactions are now digital.
• 8.70 While digital enrolment services have grown, many enrolment processes are still required by law to be conducted by post. The Electoral Commission must provide written notice by post confirming a person’s registration or any changes to their

²² Electoral Act 1993, section 83. There are special provisions to make the enrolment process more accessible for certain people: people, including those with a disability or those outside of Aotearoa New Zealand, may enrol through a representative (sections 84-86) and prison managers are required to facilitate enrolment for eligible prisoners if requested (sections 86A-86B).

²³ New Zealand driver’s licence, New Zealand passport, or RealMe verified identity.

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Earlier recommendations

2017 and 2020 Electoral Commission post-election reports

After the 2017 and 2020 elections, the Electoral Commission made recommendations relating to automatic enrolment and digital enrolment services. For example, it recommended:

• considering whether a new enrolment could be actioned by matching information held by other government agencies (“data-matching”) and whether new enrolments or enrolment updates could be confirmed electronically
• being able to use electronic communications for its enrolment update campaign and extending the current data-matching provisions to include email addresses and phone numbers.

These changes would allow the Electoral Commission to encourage enrolment by text or email. The proposal to extend the data-matching provisions to include email addresses and phone numbers was supported by the Privacy Commissioner in 2021, as part of a regular review of these provisions.

2014 Justice Select Committee

In its 2014 post-election report, the Justice Select Committee recommended making promoting voter enrolment a whole-of-government priority with government agencies working together to facilitate enrolment.

enrolment details.²⁴ It must also run an enrolment update campaign before every general election, where it contacts each enrolled voter to check their details are correct before voting begins. ²⁵ This campaign must be delivered by post.

• 8.71 The number of people enrolling and updating closer to election day has grown in recent years. The number of electors added to the roll after writ day increased from 56,971 in 2011 to 185,367 in 2020.²⁶ During the 2020 election, there were:
  • 130,000 digital enrolments during the voting period
  • 90,000 enrolment forms issued at advance voting places
  • 80,000 enrolment forms completed at voting places on election day.

²⁴ Electoral Act 1993, sections 89A and 94A.

²⁵ Electoral Act 1993, section 89D.

²⁶ Electoral Commission, above n 17, p 39.

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Automatic enrolment

Is there a case for change?

Issues identified

• 8.72 At the 2023 election, over five per cent of estimated eligible voters, or about 200,000 people, were not enrolled despite enrolment being compulsory.
• 8.73 Automatic enrolment would allow public officials to enrol an eligible person with no action or consent required by that person. It can be implemented in a range of ways, including through data-matching. The Electoral Commission already uses data-matching with information held by other government agencies to identify and encourage eligible people to enrol or to update their enrolment details.²⁷ However, it cannot automatically take these actions on their behalf.
• 8.74 Many submitters who commented on enrolment during our first consultation supported automatic enrolment. In some ways, automatic enrolment can be seen as a logical extension of compulsory enrolment. If enrolment were automatic, people would no longer have to enrol themselves. Removing this barrier could improve enrolment rates, particularly for highly mobile populations – for example, students and people experiencing housing insecurity – as well as people who have low literacy or limited digital access.
• 8.75 Māori also tend to be a highly mobile population. We heard through our first consultation that keeping enrolment details up to date can be challenging and may be a contributing factor in Māori enrolment rates. Automatic enrolment could alleviate some of this burden and ensure that more Māori are enrolled with up-to- date details.
• 8.76 However, automatic enrolment raises risks relating to consent, privacy and data protection, as information people have provided for other purposes could be used to enrol them without their agreement. Some people may feel that this approach is overreach by the state.
• 8.77 Automatic enrolment would impact how people exercise the Māori electoral option. Anyone who is of Māori descent decides when they first enrol whether to register for the general roll or Māori roll. Māori electors who move between electorates may also wish to change between the Māori and general roll when they move. If people are enrolled or have their enrolment details updated automatically, there is no clear way to ensure that those who are eligible for the Māori electoral option get the opportunity to make their choice before being

²⁷ Electoral Act 1993, section 263B.

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enrolled. Automatic enrolment raises issues relating to Māori data sovereignty more broadly and whether Māori have appropriate oversight of their data that is held by the Crown.

• 8.78 Introducing automatic enrolment would create many other implementation issues to work through. For example, some people have multiple addresses, and it could be difficult to determine which address should be used for enrolment purposes.

Our initial view

• 8.79 In our interim report, we did not recommend adopting automatic enrolment due to concerns about consent and data protection and the impact on the exercise of the Māori electoral option. We noted that coordinated government action could help improve enrolment outcomes.

Feedback from second consultation

• 8.80 A few submitters expressed support for automatic enrolment. They said it could help to address equity and access issues that manual enrolment can create in some circumstances (for example, people with low literacy or lack of digital access). They also considered the privacy concerns were not insurmountable, especially as data sharing across government was managed successfully now and the purpose is in the public interest. One submitter specifically supported automatic enrolment as a way to improve Māori enrolment rates, noting issues with relying on post for people who frequently change address.
• 8.81 During our second consultation, we met with the Office of the Privacy Commissioner, which noted that people should always be informed about how their data is being used and provide consent. It raised potential risks if automatic enrolment were adopted – for example, if young people were automatically enrolled when their parent was on the unpublished roll.

Our final view

• 8.82 On balance, as in our interim report, we do not recommend adopting automatic enrolment. While we acknowledge the potential benefits to participation, we are concerned about the use of personal data for enrolment purposes without free and informed prior consent. Automatic enrolment could also constrain the exercise of the Māori electoral option. Several technical issues would need to be worked through to ensure the accuracy of the rolls would be maintained.
• 8.83 We were not persuaded by feedback that because government already uses data- matching, that justifies its use in these particular circumstances. With other changes to make enrolment as easy as possible, such as allowing same-day enrolment up to and on election day, we think the risks relating to consent, data protection and implementation outweigh the benefits. Enrolment, when done by an individual or with support, also has an educative function that may be lost if it

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is done by the state rather than keeping people responsible for enrolling themselves.

• 8.84 We do, however, think there are other opportunities to improve enrolment outcomes. We recommend an all-of-government approach to encourage and support people to enrol, including when accessing other government services. For example, this approach could include providing enrolment forms at government offices or having a tick-box option on other government forms to share a person’s details with the Electoral Commission to receive more information about how to enrol.

The Panel recommends:

R30. Adopting an all-of-government approach to encourage and support people to enrol, including when accessing other government services.

Digital enrolment services

Is there a case for change?

Issues identified

• 8.85 Given changing voter preferences and the prevalence of technology, the Electoral Commission has questioned whether more enrolment correspondence – in particular, enrolment confirmations and the enrolment update campaign – can be sent digitally.²⁸ In its submission during our first consultation, the Electoral Commission outlined a range of enrolment transactions where digital correspondence could be used in place of post with varying levels of risk – for example, when an elector is only changing their name, or when they move address within the same electorate.
• 8.86 Submitters to our first consultation did not comment on this topic in detail, but some expressed a general preference for more online enrolment services and less reliance on post. Others noted the need to retain postal options as some people still rely exclusively on post.
• 8.87 The enrolment process is an important way of protecting the accuracy and integrity of the electoral rolls. The main challenge with using digital correspondence for enrolment purposes is the need to verify residence. A person

²⁸ See, for example, Electoral Commission, above n 17, pp. 44-46.

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needs to be registered in the electorate where they currently reside to vote for electorate Members of Parliament (MPs).

• 8.88 Sending enrolment correspondence by post – whether an enrolment confirmation or as part of the enrolment update campaign – seeks to confirm that the person lives at the address where they have registered. If the correspondence cannot be delivered, the person is placed on the dormant roll.²⁹ Some communities that are highly mobile may be disproportionately impacted by this approach.
• 8.89 While many people now prefer digital services, some communities do not have regular or reliable internet access – many of these are rural or remote. Enrolment services still need to meet the needs of these communities to support access and participation.

Our initial view

• 8.90 In our interim report, we noted that it is inevitable that enrolment processes will need to become increasingly digital. However, we found issues with identifying an alternative system that would still allow a person’s residence to be verified easily and accurately. We asked for feedback on this issue during our second consultation.

Feedback from second consultation

• 8.91 A few submitters to our second consultation agreed that digital enrolment needed more consideration, but they did not provide any suggestions on how it could be addressed. One submitter noted that the current method of relying on post does not strike the right balance between accuracy and accessibility.
• 8.92 A few submitters proposed ways that residence could be verified in a digital enrolment system. Suggestions included allowing digital correspondence for people with a RealMe verified identity or providing other proof of residence (such as a bank statement or utility bill). One submitter suggested a high trust model with clear information about offences and fines for providing false information. Another submitter supported giving the Electoral Commission more flexibility over which methods it uses.
• 8.93 One submitter thought that, given the wider interests of government in having up- to-date residence information, how to collect this information should be part of wider work. One submitter noted that having to provide proof of residence would create a barrier, especially for groups that already have lower participation rates.

Our final view

• 8.94 All enrolment processes must balance accessibility, protection of privacy, and the integrity of the system. Given changing preferences, we think it is inevitable that

²⁹ Electoral Act 1993, section 89G.

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enrolment processes will need to become increasingly digital, while preserving paper-based options for those who need it. The cost of postage will also continue to rise, making enrolment services less affordable, and some communities will have diminishing access to postal services.

• 8.95 Adapting to changing preferences will help ensure the electoral system is practicable and enduring. From a future-proofing perspective, there is value in embedding a technology-neutral approach in electoral law. It would also increase resilience, particularly in the face of risks like displacement caused by climate impacts.
• 8.96 That said, we have found issues with developing a more fit-for-purpose approach to verifying residence for enrolment purposes. The diminishing use of post means that this method may become more ineffective over time, particularly as there is no guarantee that the Electoral Commission will be notified if enrolment correspondence cannot be delivered to someone who has moved. However, alternative approaches, which require a person to provide proof of residence in other ways, could create significant administrative barriers that may discourage or even prevent people from enrolling.
• 8.97 While we sought feedback on this issue during our second consultation, we did not find any clear solutions. How to verify a person’s address or location as postal services decline is a broad question that needs wider government consideration. That said, it does present a particular problem for the electoral system as the enrolment verification process relies heavily on the postal system to ensure that electoral rolls remain accurate and up to date. To our knowledge, a satisfactory alternative does not yet exist. Any alternatives that do exist would create undue accessibility barriers.
• 8.98 While we have not been able to identify a solution, we do set out some principles that should guide any future approach. There needs to be a balance between ensuring the electoral rolls are accurate and people are enrolled in the correct electorate, and having enrolment processes that are easy, accessible and flexible. Any changes to this process need to be consistent with the approach taken to verifying same-day enrolments, which have enabled improved participation. There may also be equity issues for some communities, such as Māori, that would need to be examined before any changes were proposed.

Other considerations

• 8.99 One submitter to our second consultation thought identification should have to be provided to enrol. As we noted above, people enrolling online must have a New Zealand driver’s licence, a New Zealand passport, or a RealMe verified identity. People enrolling without providing identification must declare that the information they have provided is correct, and giving false or misleading information is a criminal offence under the Electoral Act. The Electoral

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Commission also has many checks built into the processing of enrolment applications to ensure applicants are eligible, and to detect fraud.

• 8.100 Given we have not heard any evidence of widespread voter fraud, we consider these safeguards are sufficient. We are aware that more stringent identification requirements have been shown to create barriers to participation in other countries.

Interaction with our other recommendations

• 8.101 Many enrolment processes use personal data, which means robust methods need to be in place to protect privacy. The Electoral Commission must handle personal information in accordance with the Privacy Act 2020. The Office of the Privacy Commissioner regularly reviews data-matching provisions.
• 8.102 We are particularly aware of the need to have appropriate oversight and monitoring of the use of Māori data collected or accessed for enrolment purposes. Increased data use, while seen as convenient by some people, can result in harm and mistrust in some communities if not done with the appropriate safeguards. We discuss Māori data governance in Chapter 3.
• 8.103 In Chapter 16, we recommend restricting current levels of access to the electoral rolls. These changes would help ensure that enrolment data is adequately protected, consistent with privacy principles.
• 8.104 In Appendix 1: Minor and Technical Recommendations, we pick up on earlier recommendations about enrolment from the Electoral Commission.

Final Report | Chapter 9: Voting in Elections ²¹⁹

9. Voting in Elections

• 9.1 Electoral law sets the rules for when, where and how people can vote in elections. Voting processes should be accessible while protecting the integrity of elections. While the fundamentals of voting are enduring, voting methods need to be flexible enough to adapt to changing voter preferences and technologies as well as emergencies and disruptions.
• 9.2 Voting in Aotearoa New Zealand usually occurs over a two-week period, finishing on election day. Most voting takes place in person at polling places around the country. More people are now choosing to vote before election day, known as advance voting.
• 9.3 A voter who is voting in the electorate in which they are enrolled and whose name is on that electorate’s printed electoral roll casts an “ordinary vote”. At the polling place, once a voter’s name has been marked off on the electoral rolls, they are issued a ballot paper. The voter then goes behind a voting screen alone, marks their ballot in secret by ticking their party and electorate votes, folds it in half, and places it in the appropriate ballot box.
• 9.4 “Special voting” is available for people who are not on the printed electoral rolls or who cannot vote in person in their electorate. These voters must complete and sign a declaration form alongside their ballot paper. Different methods of voting are available for different kinds of people casting special votes, such as disabled voters and overseas voters.
• 9.5 The International Covenant on Civil and Political Rights¹ and the New Zealand Bill of Rights Act 1990² affirm the right to vote by secret ballot. The United Nations Human Rights Committee has stated that measures must be taken to ensure that anyone who is entitled to vote is able to exercise that right, and that any abusive interference or intimidation of voters should be prohibited and strictly enforced.³
• 9.6 Online voting was out of scope of this review.

¹ International Covenant on Civil and Political Rights GA Res 2200A (1966), art 25(b).

² New Zealand Bill of Rights Act 1990, section 12(a).

³ General comment no. 25, The right to participate in public affairs, voting rights and the right of equal access to public service (article 25) UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996).

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Earlier recommendations

2011, 2014, 2017 and 2020 Electoral Commission post-election reports

The Electoral Commission has made many recommendations to improve voting services in its recent post-election reports. These recommendations are often operational improvements to modernise services, and many of these have been implemented over time. The Commission has also made recommendations to improve the accessibility of voting.

In-person voting

• 9.7 Voters generally must vote at a polling place unless they have a valid reason why they cannot vote in person. The Electoral Commission decides on the number and location of polling places.
• 9.8 Advance voting has become an important feature of our electoral system. While there are many provisions in the Electoral Act 1993 that govern voting on election day, there is little in the law to regulate advance voting. The Electoral Commission decides when advance voting will begin on an election-by-election basis, which has varied between 12 and 17 days before election day.
• 9.9 In this section, we consider whether there should be more legislative recognition of advance voting and the legal requirements for polling places.

Advance voting

Is there a case for change?

Issues identified

• 9.10 Voters now expect to be able to vote ahead of election day at a time and location that suits them. Over 60 per cent of voters in the 2023 election used advance voting.
• 9.11 In our first consultation, we heard that flexibility over when to vote makes it easier for people to vote around their work schedules and other commitments, which in turn helps to improve participation outcomes. We also heard that access to advance voting can be uneven, for example, for rural communities and people with non-standard work hours.
• 9.12 A few submitters to our first consultation thought that voting should mainly take place on election day, reflecting its traditional importance.

Final Report | Chapter 9: Voting in Elections ²²¹

Earlier recommendations

2011 and 2014 Justice Select Committee

Following the 2011 election, the Justice Select Committee recommended asking the Electoral Commission to report on the implications of the increasing trend towards advance voting.

After the 2014 election, the Justice Select Committee recommended that the government improve accessibility to advance voting places by increasing their numbers and opening hours, and provide greater consistency between advance voting places and voting places on election day. It proposed a 12-day advance voting period.

2014, 2017 and 2020 Electoral Commission post-election reports

The Electoral Commission made recommendations relating to advance voting in its reports on the 2014, 2017 and 2020 elections. It has previously proposed setting a minimum advance voting period of either 12 days or 17 days.

• 9.13 The law has only minimal provisions for this widely used form of voting, and advance voting requirements are not consistent with election day requirements. The Electoral Act provides for polling places to be open from 9am to 7pm on election day.⁴ For the advance voting period, the only requirement is to have at least one office in each electorate that can issue advance votes.⁵ The days and hours these offices are open are at the discretion of the Returning Officer. The law does not set a period during which advance voting must be available. Therefore, access to advance voting is largely reliant on the operational decisions of the Electoral Commission.
• 9.14 Providing advance voting services across the country requires more staff and polling places, resulting in higher election costs.

Our initial view

• 9.15 Given the growth of advance voting, we thought there was a strong case that this shift should be better reflected in the law and that the rules for advance voting and election day should be more consistent. We recommended requiring advance voting to be provided for a minimum period of 12 days before election day.

⁴ Electoral Act 1993, section 161.

⁵ Electoral Regulations 1996, regulation 19.

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Feedback from second consultation

• 9.16 Many submitters who commented on this issue supported mandating advance voting and setting a minimum advance voting period. Submitters noted the benefits of the flexibility and accessibility provided by advance voting, which they thought would facilitate participation. Some submitters pointed out that advance voting can help to address barriers to participation for different communities, such as disabled people.
• 9.17 Comments on our online form indicated some opposition to advance voting, with these submitters arguing that most voting should be done on election day. Some said that most people should be able to get to a polling place on election day easily, while a few had concerns about people casting votes while election campaigns were still underway.
• 9.18 A few submitters suggested a range of alternative timeframes for advance voting to the 12-day minimum requirement we proposed.
• 9.19 As we noted in Chapter 5, the Electoral Commission supported this recommendation but questioned how it would interact with our recommendation to continue to allow the prime minister to call a general election at any time before the end of the parliamentary term. The Commission noted that advance voting takes more time to put in place, given the venues, staff and supplies required, and advance voting services may have to be limited if an election were called at short notice.
• 9.20 We also sought feedback on whether the current provisions requiring employers to allow workers to have paid time off on election day if they are not able to vote outside of their work hours should be retained if advance voting requirements are strengthened.⁶ Our initial view was that these provisions could be removed as most people would be able to vote at some point during advance voting.
• 9.21 We heard strong feedback from unions that these provisions should be retained. Their reasons included that some people may not decide how to vote in advance or may not be aware that advance voting is available. They pointed out that voting on election day may be more accessible and convenient, given there may be fewer polling places during advance voting. It is also the last opportunity to vote.

Our final view

• 9.22 Strengthening the requirements for advance voting will support our objectives of encouraging participation and promoting fairness. Contrary to what some submitters thought, we heard many reasons why some voters may find it difficult to vote on election day. Advance voting helps to ensure that everyone who is eligible has the opportunity to exercise their right to vote.

⁶ Electoral Act 1993, section 162.

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• 9.23 More certainty around providing advance voting may also support better election planning, as well as polling place and funding requirements. It may help political parties to plan their campaign strategies based on when people are likely to vote.
• 9.24 A key mechanism to strengthen the legislative provisions is to create a minimum period during which advance voting must be provided. We are aware of the risks of limiting the flexibility to adapt voting services to changing circumstances and the challenges of providing an adequate and consistent service nationwide. Even so, some basic legal protection of access to advance voting is justified to ensure participation in the electoral system is as easy and available as possible.
• 9.25 In recent elections, the advance voting period has varied between 12 and 17 days. Deciding on an appropriate length for a minimum voting period needs to balance accessibility and cost-effectiveness. While a longer voting period provides the greatest opportunity for participation, it also results in higher costs, staffing requirements and venue needs.
• 9.26 On balance, we maintain our view that there should be a minimum period of 12 days required for in-person advance voting before election day. We think this timeframe is sufficiently long to meet voter expectations without creating unreasonable resource demands. We emphasise, however, that this period would be a minimum requirement, and it would not prevent the Electoral Commission from deciding to extend the advance voting period. Special votes that can be cast in advance, such as postal and dictation votes, could be offered over a longer timeframe, as they are currently.
• 9.27 We are aware that there are circumstances where these requirements may not be practicable – for example, if a snap election were called, or during an emergency. We suggest the legal requirements are drafted in a way that provides some flexibility or reasonable accommodation to adjust advance voting services in such circumstances.
• 9.28 While we think the provisions allowing paid time off to vote on election day will be used infrequently in practice, they provide a backstop to make sure that people who cannot or choose not to vote in advance have every opportunity to vote on election day. For this reason, these provisions should be retained.
• 9.29 Strengthening the legal requirements for advance voting may also support more equitable access to advance voting in terms of polling places and their hours of operation. This access may be particularly important for shift-workers and rural communities. We discuss these issues below in our recommendations on Polling places.
• 9.30 Advance voting is technically a form of special voting,⁷ though regulations permit these votes to be treated like ordinary votes.⁸ We recommend that, as far as

⁷ Electoral Act 1993, section 61(3).

⁸ Electoral Regulations 1996, regulation 24(1).

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practicable, electoral law should be updated so that there is no distinction between advance ordinary votes and ordinary votes cast on election day. The law would instead reflect a “voting period”. There would need to be some exceptions to this approach, such as continuing to allow the preliminary count of advance votes to begin before the close of polls on election day.

Interaction with our other recommendations

• 9.31 We have suggested changes related to advance voting in the provisions for preventing voter interference and the vote count to support a more consistent approach across the voting period. These changes are discussed below in Administering the vote and in Chapter 10.

The Panel recommends:

R31. Requiring advance voting to be provided for a minimum period of 12 days.

Polling places

Is there a case for change?

Issues identified

• 9.32 The Electoral Commission seeks to put polling places in locations that are convenient, easy to access and relevant to the communities it serves. However, there are no specific requirements in legislation about where polling places must be located. The only legal requirement is that on election day at least 12 polling places in each electorate must be accessible for physically disabled people.⁹ In practice, most polling places are already either fully accessible or accessible with assistance.
• 9.33 It is challenging to find thousands of polling places around the country that meet requirements. Venues must be available for the voting period, accessible, conveniently located, big enough to accommodate voting booths, comfortable and safe. While it is desirable to use the same polling places during advance voting and on election day, this approach is not always possible in practice. Different

⁹ Electoral Act 1993, section 155. The Electoral Act 1993 also sets rules around the use of public schools and licensed premises as polling places and requires the Electoral Commission to publish information about the location of polling places.

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electorates also have different requirements and venue options. Maintaining flexibility is critical to managing the needs of voters, costs and staffing requirements efficiently.

• 9.34 Being too prescriptive about polling place requirements could affect the Electoral Commission’s discretion to determine appropriate locations and hours. Where it is difficult or inefficient to have polling places, the Electoral Commission can offer mobile, takeaway or postal voting instead.
• 9.35 However, many submitters to our first consultation commented on the location of polling places. We heard that polling places are less consistently and widely available in rural areas than in urban areas. People commented on the need to have polling places in locations that are culturally relevant or serve as community hubs, such as on marae, or that increase access for groups with additional barriers, such as near community mental health centres. Additional legal requirements may help to ensure equitable access.
• 9.36 We heard from submitters to our first consultation who thought that all polling places should be accessible. They said that the minimum requirement of 12 accessible polling places per electorate sends the wrong signal, even if it is regularly surpassed.

Our initial view

• 9.37 In our interim report, we recommended including standards in electoral law for polling places. We saw this approach as a way to ensure polling places are widely available and accessible, including during advance voting, while maintaining an appropriate degree of flexibility for the Electoral Commission.

Feedback from second consultation

• 9.38 Most submitters supported setting standards for polling places. They thought it would improve accessibility and help to meet the needs of a range of communities. A few submitters emphasised that access to polling booths is a greater issue for rural voters than urban voters, due to the number of polling places, how far away they are, and the transport requirements to reach them. Others highlighted the importance of flexible hours at polling places.
• 9.39 A few submitters did not agree with this recommendation. They thought that polling places were already accessible enough, and standards might introduce more costs and bureaucracy and make it harder to find suitable polling locations.
• 9.40 The Electoral Commission outlined some of the challenges around securing polling place venues and the current assessment criteria it uses. It noted that it works with disability service providers to develop accessibility standards. The Electoral Commission thought care would need to be taken to ensure the standards in law are not overly prescriptive and do not create unintended outcomes.

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Our final view

• 9.41 We maintain our view that there is value in setting clearer standards and expectations for polling places in electoral law, based on what we heard from submitters about the importance of polling places. From a future-proofing perspective, this approach would protect the continued provision of in-person voting, which is fundamental to our electoral system, even if other voting methods emerge. Equitable access to polling places is also a key factor in enabling participation.
• 9.42 Setting standards would provide clear direction to the Electoral Commission on what it needs to take into account when choosing polling places, while preserving its flexibility to determine how those standards should be met. It would help voters and communities to better understand how polling place locations are determined and to have an avenue to challenge those decisions if they feel they are not consistent with the legislative criteria.
• 9.43 The standards set in law would not need to be exhaustive, but they should clearly indicate the principles the Electoral Commission must have regard to when choosing polling places. At a minimum, we think the standards should require the Electoral Commission to provide polling places that offer reasonable access to anyone who wants to cast a vote in-person during advance voting or on election day (or other voting methods where polling places are not practicable). This requirement would embed a more consistent approach across advance voting and election day without being prescriptive about how it is delivered.
• 9.44 Additional standards could give direction on accessibility outcomes – for example, placing an obligation on the Electoral Commission to have regard to:
  • maximising the accessibility of polling places for disabled people (which would replace the minimum requirement for 12 accessible polling places per electorate)
  • providing adequate access for people with non-standard work schedules
  • providing equitable access that considers the needs of different communities that may have barriers to participation (for example, rural and remote voters)
  • using locations with community or cultural relevance.
• 9.45 We emphasise that we see these standards being set at the level of principles and objectives, rather than at a level of operational detail. We considered whether there should be more prescriptive requirements in the law, such as a minimum number of polling places in each electorate. We concluded that this approach would be impractical, given that what is reasonable and adequate will vary across electorates (for example, in large, rural electorates compared with small, urban ones). And, as we have seen with the requirement for at least 12 accessible polling

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places per electorate, setting minimum requirements can send the wrong signal to communities about what level of service is considered acceptable.

• 9.46 Strict requirements could also constrain the Electoral Commission’s ability to adapt voting services to respond to disruptions and to meet community needs – for example, through mobile voting services. As with our recommendation on advance voting, flexibility would need to be permitted, particularly if there were an emergency or a snap election.
• 9.47 We understand that the Electoral Commission has previously consulted political parties and sought input from Māori communities on polling place locations. We encourage the Electoral Commission to consult more broadly, particularly with leaders in communities that may have specific requirements or lower participation rates. This could be one way that the Electoral Commission could meet the new objectives that we have recommended for it of giving effect to te Tiriti o Waitangi / the Treaty of Waitangi and facilitating equitable participation, which are discussed in Chapter 3 and Chapter 15.

Interaction with our other recommendations

• 9.48 In Appendix 1: Minor and Technical Recommendations, we also recommend clarifying that children under the voting age are allowed to go into voting booths with their parent or caregiver.

The Panel recommends:

R32. Including standards in electoral law for polling places to ensure they are widely available and accessible, including during advance voting.

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Special voting

• 9.49 A “special declaration vote” (or special voting) is available to a range of voters who are not able to vote in the “ordinary” way.¹⁰ This may be because they cannot vote in person at a polling place at all, or because they cannot vote at a polling place in the electorate in which they are enrolled, or because their name is not on the printed electoral roll. By enabling people in these circumstances to vote, special voting increases the accessibility of elections and supports improved participation.
• 9.50 At the same time, special votes are more difficult to cast as the voter must also complete a declaration form and have it witnessed. Electoral officials must check the declaration accompanying every special vote to ensure the person is enrolled and eligible to vote, which can be time- and resource-intensive.
• 9.51 Special votes have grown in recent years due to a trend towards enrolling closer to election day. Special votes made up about 20 per cent of the total vote in the 2023 election, or over 600,000 votes.

Is there a case for change?

Arguments against change

• 9.52 In our first consultation, many submitters thought that current voting methods were working well. They noted special voting provides accessible voting methods for a range of voters.
• 9.53 Changes in recent years have sought to improve special voting processes. For example, people can now enrol and vote on the same day, including on election day, and special vote declarations can be treated as an application to enrol. New voting services have been introduced, such as telephone dictation voting for visually impaired voters and upload/download voting for overseas voters.
• 9.54 While special votes are more time-intensive to process and count, advances in technology may reduce this administrative impact over time. The Electoral Commission has proposed work to enable digital roll mark-off, which would enable anyone who can be marked off a “live” electronic roll to be issued an ordinary vote. This change could help to reduce the number of special votes cast and the administrative costs of processing special votes. It is discussed more in Chapter 10.

¹⁰ Electoral Act 1993, section 61.

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Arguments for change

• 9.55 Some submitters to our first consultation said that special voting is too permissive and can be manipulated more easily than ordinary voting. They thought that the use of postal or takeaway votes should be more limited, as they considered there was a greater risk of fraud for votes not cast in the presence of electoral officials. The future of postal voting has also been questioned in the context of declining postal services.
• 9.56 Some people thought that the use of special votes should be minimised as far as possible to manage the work required to process and verify special votes and the impact on the vote count, as some types of special votes can be received up to 13 days after election day.
• 9.57 We also heard calls in our first consultation to expand the use of special voting, including allowing more people to access postal voting. Submitters commented on a range of situations where a person may want to vote but finds voting in person stressful or uncomfortable. Examples included:
  • people who have anxiety or other mental health issues
  • people whose legal names may not be perceived to match their gender expression
  • people who may have issues with sensory overload, such as neurodivergent people
  • people who prefer to avoid highly populated areas due to health risks.
• 9.58 Many submitters commented on the opportunities afforded by online voting, but online voting was out of scope of this review.