From voting age to thresholds, from term lengths to coat-tails, the Independent Electoral Review has come in hot in its interim report.
Just over a year ago, an independent panel of experts was tasked with a wide-ranging review of New Zealand electoral law – nothing less than a “once-in-a generation opportunity to consider how to make our electoral laws clearer, fairer, and more accessible”, in the words of then justice minister Kris Faafoi. After receiving more than 1,700 submissions and running dozens of meetings with the public and interested groups, the interim report is today published, and the group, chaired by Deborah Hart, has recommended some substantial changes.
They include dropping the voting age to 16, reducing by almost a third the party vote threshold for heading to parliament, and binning the coat-tail exception to that threshold. A referendum would be held on the length of a parliamentary term. Criteria for donations would be significantly shrunk. The Electoral Act would be rewritten to uphold Te Tiriti principles and to make it easier to understand.
“There have been piecemeal changes to electoral law over many years, including some recently, but this review is an opportunity to step back and look at the bigger picture. While many parts of Aotearoa New Zealand’s electoral system work well, we found it can be improved,” said Hart in a statement. Fairness was a core principle that guided the panel’s thinking. “One of the main ideas underpinning our draft recommendations is fairness. Getting a ‘fair go’ is an idea that resonates with New Zealanders. But we’ve found several areas where our current laws are not as fair as they could be.”
They are now inviting submissions from the public – go here to jump right in or find out how to attend an online meeting – up until July 17, with a final report to be completed by November. That falls, of course, after the election, though the interim recommendations will inevitably figure in election discussions.
Below, a whistle-stop tour of the main recommendations, and why they’re important. This is all based on a summary of the key themes; the panel declined to provide media with the full report.
The voting age
The Make it 16 campaign has been killing it these last few years, culminating in a Supreme Court victory six months ago. Their hopes of action before the election were thrown into the policy potbelly by Chris Hipkins, though that did come with a pledge to introduce legislation by the end of the term to shift the voting age to 16 for local elections. The Independent Review says it should be 16 for general elections, too. Their argument, essentially, is that people should have the vote unless there is a really compelling reason why they shouldn’t.
The National Party opposes dropping the age to 16. Notably, unlike on the question of term lengths, of which more in a moment, there is no suggestion here of a referendum on changing the voting age.
The panel further recommends that voting rights – currently denied to those serving sentences of more than three years – be extended to all prisoners.
The threshold
As it stands, a party needs to get 5% of the party vote before it can nestle into the green leathery cocoon of a parliamentary seat. You can win the backing of well over 100,000 New Zealanders and – unless you have won an electorate seat – your representation in the house is nada.
The panel thinks that’s too high, that the status quo is too high a barrier to representation. They’ve recommended instead 3.5%. It is a strange number to land on. The system is complicated enough without adding a cursed decimal point to the mix. Rather than being inspired by, say, Israel, where the threshold is 3.25%, it sounds as though that half of a percentage point was a compromise between the preferences of different panel members.
My guess is the final report will land on 4%. The recent emergence of conspiracy-laced parties will mute enthusiasm for going much lower. Wind back to the mid-80s and the Royal Commission on the Electoral System, whose report laid the foundation for the switch to MMP, unanimously recommended a 4% threshold. A 2012 review of MMP by the Electoral Commission recommended the same.
What difference would a 3.5% threshold have made in New Zealand MMP elections to date? In 1996, the Christian Coalition won 4.33% of the party vote, so they’d have been in. And in 2014, Colin Craig’s Conservative Party finished on 3.97%. New Zealand First finished on 4.26% in 1999, but made it in via the coat-tails rule, which we’ll get to in a moment. When a party is polling well below the threshold, that makes it hard to build support, of course – Christian Heritage in 1999 (2.38%), the 2014 Conservatives (2.65%), TOP in 2017 (2.4%) and NZ First in 2020 (2.6%) might have had a better shot at making it to parliament with a lower threshold.
The one-seat rule
The Electoral Commission of 2012 called for this to be ditched, and so does the report today. To many, its removal goes hand in hand with a drop in the threshold. Colloquially known as the “coat-tailing rule”, it provides an exception to the party vote threshold, which is currently 5%. As noted above, New Zealand First returned to parliament by the skin of their teeth in 1999 despite falling short of the threshold, thanks to Winston Peters winning Tauranga by a mighty 63 votes. The party’s 4.26% was enough to take another four MPs to the house, clinging to Peters’ proverbial coat-tails.
The rule is in part inspired by the German example, where groups in particular provinces were disadvantaged without the national spread. In New Zealand it has become the basis upon which electorate deals – cups of tea, as they’ve come to be known – have been staged. As well as 1999, the other examples of an electorate-winning candidate bringing list MPs into parliament with them despite not meeting the threshold are Jim Anderton’s Progressive Party in 2002, both Act and United in 2005, Act again in 2008, and Te Pāti Māori in 2014 and 2020.
The parliamentary term
For a long time, a lot of people, including a lot of politicians, have argued that the current three-year term just isn’t long enough to properly undertake a programme of work: the first year is settling in and sorting out what you’re left with, the second is governing like the clappers, and the third year is mostly campaign mode. On the other hand, New Zealand governments face comparatively few checking mechanisms; no upper house, no formal written constitution, the “fastest lawmaker in the west”, as Geoffrey Palmer once put it. A reasonably quick return to the ballot box ensures we can kick them out if we don’t like them.
The Independent Review falls on the side of a longer term. It notes that the law requires any such change be backed by either 75% of MPs or a referendum, and advises that a public vote is the way to go. Despite a referendum 33 years ago resulting in close to 70% wanting to stick with the status quo, “it is time voters considered the question again”, they say.
The number of seats
There are currently 120 seats in parliament, which can increase in the case of an overhang – where a party’s electorate seats are more than their allocated proportion based on the party vote. The panel reckons that the number of seats in parliament should “increase in line with changes to our total population, to make sure we are all fairly represented by both a local MP and a party”.
Political donations
The question of how political hopefuls fund their campaigns is another perennial. Political donations are never far from the headlines – a blur of scandal, legal action and loophole. Recent changes reduce the threshold at which donors’ names need to be declared, but the Independent Review recommends a much more dramatic tightening.
Donations would be restricted to registered voters – no businesses or unions allowed, thank you – and capped at $30,000 per election cycle. To put that into perspective, in 2022, a bumper fundraising year for National, the party booked around half of $5 million in donations in chunks of more than $30,000, while unions amount for a substantial chunk of Labour financing.
The Treaty
The principles of te Tiriti o Waitangi should be written in to the Electoral Act, including requiring Māori governance over electoral data collected about Māori, says the panel. They further urge that restrictions around Māori moving between the electoral rolls be removed.
The Electoral Act
The legislation requires a “complete rewrite”, the panel says, in the cause of clarity and accessibility. The summary puts it like this: “A lot of it is the same as it was 60 years ago, and some of it even dates to 19th century English law. It doesn’t mention or recognise the importance of Te Tiriti o Waitangi/the Treaty of Waitangi, even though this is an important part of Aotearoa New Zealand’s constitution. Our electoral law has been patched up many times but is now clunky and confusing for people to understand.”
Will it lead to change?
This is an easy one: Don’t know. Among other things, it depends on who might be the minister of justice to whom the final report is handed, the government they’re a part of, and whether there is anything approaching a cross-party consensus. That 2012 report mentioned above was chucked in the bottom drawer, with the justice minister of the time Judith Collins noting that National didn’t support the key recommendations, on the threshold and the coat-tails rule. “Law changes in this country require 61 votes to get through parliament,” she said. “I don’t have 61 votes to bring forward the law changes suggested by the Electoral Commission. It’s as simple as that.”