A solution seems on the way for Kiwi expats who may become ineligible to vote if pandemic restrictions keep them out of New Zealand, while an end to the de facto media blackout on election day could also be near

Overseas Kiwis facing the threat of losing their voting rights due to the Covid-19 pandemic are a step closer to a fix, with MPs recommending a law change to stop their disenfranchisement. 

However, the Green Party and a legal expert are pushing for a broader review of the voter eligibility rules, saying they unfairly discriminate against expats who can’t afford to make regular trips to New Zealand. 

The country’s electoral law currently requires New Zealand citizens living overseas to return home at least once in the three years before election (or within one year for permanent residents), with nearly 63,000 overseas votes cast in 2020.

With heavy entry restrictions still in place due to the MIQ system, and no certainty over when borders will fully reopen as the pandemic develops, a number of expats have been urging Parliament to address the issue before the next election.

Now, in an interim report on the 2020 general election, Parliament’s justice committee has (by majority) recommended changing eligibility rules “to address situations where voters have been prevented from returning to New Zealand by circumstances out of their control, such as a pandemic”.

While the number of Covid-19 travel restrictions in place had reduced compared to those ahead of the 2020 election, the committee said it recognised that travel had been “severely curtailed” at the time and other emergencies could occur in future.

Green Party justice spokeswoman Golriz Ghahraman, whose party has been calling for a moratorium on the eligibility requirements until border restrictions are lifted, told Newsroom the select committee report was a welcome but belated step towards change.

“That someone may only be able to visit family once every five years because of the expense does not mean they are less worthy of exercising a citizenship right like voting than someone who is more financially secure.”

“It’s something they’ve [the Government] had on their radar for ages, so it’s disappointing that they’ve refused to deal with it for so long.”

Ghahraman was in favour of reviewing a broader lifting of the rules, saying a three-year visit requirement was “blatantly too short” compared to other countries and effectively disenfranchised overseas students, families and others who could not afford the cost of flights to maintain their voting rights.

Wellington lawyer Graeme Edgeler told Newsroom the costs associated with voter eligibility requirements had long been a problem which the Covid pandemic had helped to shine a light on.

“That someone may only be able to visit family once every five years because of the expense does not mean they are less worthy of exercising a citizenship right like voting than someone who is more financially secure.

“Voting should not require the payment of a poll tax, which for some, this effectively is.”

Edgeler said the Government could look to the United States, which allowed its citizens to vote forever, or the United Kingdom’s 15-year limit (although even that restriction is set to be removed).

Green Party justice spokeswoman Golriz Ghahraman says the Government has dragged its heels on changing the law for overseas voters. Photo: Lynn Grieveson.

Separately, the committee has recommended a more wide-ranging review of whether the current legal framework is resilient enough for future emergencies. The Electoral Act and the Constitution Act were based on the assumption that in-person voting could take place for the vast majority of people, with any unexpected and temporary emergencies only disrupting polling in some places, the report said.

“The integrity of New Zealand’s general elections relies on free movement, face-to-face interaction, physical materials, and in-person gatherings of voters. We conclude that we need to prepare New Zealand’s electoral legislation for future emergencies.”

It has also recommended a review of the rules around the ‘regulated period’ for an election, during which there are limits on spending for advertising, after the change to the 2020 polling date caused some constitutional confusion.

An end to the de facto media blackout on election day could also be on the way, with the committee recommending by majority that the Government consider amending section 197 of the Electoral Act so election day has the same rules as the voting period.

That section of the law prohibits the publication or broadcast of any statement on election day “intended or likely to influence any elector as to the candidate or party for whom the elector should or should not vote” – a restriction which, during the advance voting period, only applies to 10-metre ‘buffer zones’ around polling places.

Former All Blacks Israel Dagg and Jonah Lomu are among those who have technically fallen foul of the law in the past by tweeting support for political parties (albeit without facing prosecution), while media outlets are heavily restricted in what they can publish until polls close despite no such obstacles in the advance voting period.

Edgeler said the rules around influencing voters on election day had “long been a problem, ignored in parts, and [were] probably not justifiable”.
The effective ban on individual expression should be replaced with one on election advertising by parties, candidates and registered promoters, with the same exceptions for election day as during the advance voting period.

Justice Minister Kris Faafoi says wider recommendations around changing electoral law may be considered by an independent review panel reporting back by the end of 2023. Photo: Lynn Grieveson.

Given that section of the law went largely unenforced, he said any concerns about media coverage on the day could be dealt with through the Broadcasting Standards Authority or the Media Council, instead of a fine.

The interim report includes separate, slightly different recommendations from the National Party, including temporary eligibility changes for the 2023 election rather than a more permanent fix as well as considering the merits “or otherwise” of changing the election day ‘influence’ rules.

National’s justice spokesman Paul Goldsmith said the party favoured a more circumspect approach than the permanent changes being advocated for by Labour.

While there was merit in considering whether to align the rules for election day with advance voting, Goldsmith said there was a more principled discussion to be had about whether it made sense for three-quarters of votes to come in a fortnight ahead of election day.

A spokesman for Justice Minister Kris Faafoi told Newsroom he would release the Government’s response to the interim report in early April, and had previously indicated he would “look carefully” at the committee’s recommendations around overseas voters.

The spokesman said some of the other proposals could be considered by a wider-ranging independent review of the country’s electoral laws, with a panel due to report back by the end of 2023 ahead of the 2026 election.

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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