Andrew Geddis explores the legal issues around a possible postponement to the election date.
There’s a lot we don’t yet know about how Covid-19 will impact us here in Aotearoa New Zealand. But the advice from experts – massive respect, as we used to say back in the day, to Siouxsie Wiles and her fellow Knowledge Banshees – is that we’re facing a long campaign rather than a short engagement.
Eventually, therefore, our minds will turn beyond the immediate “might my kids’ schools close, and for how long?” sort of questions to events lying further down our timelines. And one of the big planned events for 2020 is our general election.
Back at the end of January, Jacinda Ardern announced an election date of September 19, following Parliament’s dissolution on August 12. As a matter of formallaw it’s actually the governor general (Dame Patsy Reddy, as I’m sure you all know) who takes the necessary steps to make this happen. But under our constitutional arrangements, the governor general always follows the prime minister’s advice when using these legal powers, so in effect it’s the PM who gets to decide the matter.
Those constitutional arrangements also mean that up until parliament actually gets dissolved, the prime minister simply can advise the governor general to exercise her legal powers to move that event and polling day to a different date. She doesn’t even need a reason for doing so; it’s a purely discretionary decision on her part.
A couple of matters do then constrain her discretion a little. First, as a practical matter, leaving the decision too close to August 12 will make it very hard for the Electoral Commission (which has to put in place all the physical arrangements that actually allow an election to take place) to change course. So, I think that a call on changing the election date in this way really would need to get made in July, at the latest.
Second, if the election date is going to be changed, you’d expect some consultation (and ideally agreement) with the opposition. That’s not legally required – remember it’s entirely the prime minister’s call on what to advise the governor general – but given the issue’s importance and the events surrounding it a consensus decision would be the ideal.
If a decision is made that the election date needs to be pushed back (there’s no way it will be brought forward), some harder-edged restrictions start to apply. Under our Constitution Act 1986, parliament must dissolve on October 12 if it hasn’t been dissolved already. That’s three years to the day after the final results of the 2017 election were officially declared. And once parliament is dissolved, the Electoral Act 1993 has a timetable built into it that dictates a last-possible election date of December 5 (maybe December 12, with some changes made to regulations).
As such, barring legislative change by parliament, the prime minister has to name an election date sometime in this year. And making any changes to that fact will not be easy.
The three-year term of parliament is one of New Zealand’s few “entrenched provisions”, meaning that a 75% majority of all MPs is needed to extend it. So, in effect both Labour and National have to agree to alter the legislative requirement that parliament dissolve by 12 October.
Would National agree to do so, while leaving the current governing arrangements in place? Or, would National demand some sort of “Government of National Unity” arrangement that gives it a place at the cabinet table (as has occurred when New Zealand delayed its elections in war-times past)?
And although the government could use its parliamentary majority to push the election date back changing the timetable in the Electoral Act that applies after parliament dissolves, this would be a completely outrageous move. Not only would it do an end-run around the intent of having an entrenched three-year term, but it would leave the current government in place with no parliament to hold it to account. While governing through a public health crisis of monumental proportions. Which hardly is an ideal arrangement.
There is then yet another possibility. The prime minister might decide to keep the present election date and we get through to August 12 with Covid-19 still largely held at bay. So, parliament is dissolved as planned and everything is put in place for a September 19 polling day.
Then, with the election process in train, the virus begins circulating in the community and makes voting unsafe. What happens then, once the governor general has formally specified a polling day through the election writ (and so can’t change it)?
Well, coincidentally amendments to the Electoral Act came into force just last week that address just such a possibility. (Coincidentally because they had been worked on long before Covid-19 ever was heard of; their immediate genesis were Christchurch’s various tragedies of 2011 and 2019.) These provisions permit the chief electoral officer to stop voting at polling stations due to “an unforeseen or unavoidable disruption”, which includes the issuing of an epidemic notice.
Voting can be put on hold for an initial period of three days, with this suspension able to be successively extended for a week at a time following consultation with the prime minister and the leader of the opposition. And there’s no limit to just how long such a suspension can last; the normal election timetable is suspended while it is in place.
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So, if the September 19 date is kept in place, and it then transpires that Covid-19 makes it just too unsafe to have people going to the polling place on that day, the election can be put off until it is safe. And the newly amended law also allows the chief electoral officer to implement “alternative voting processes”, such allowing everyone to upload their ballot electronically as can be done for overseas voters. Or, mobile voting booths could be permitted to bring the vote to people who are self-isolating, rather than require them to visit school halls or supermarkets.
Having written all of this for you to read, I now note that Newsroom’s Sam Schaveda has done some actual journalisming on this topic and reports that Jacinda Ardern has “no plans to change that [election date] at this time”. That hardly surprises me. On the list of “shit that need seeing too”, events way out in mid-September must rank a long way behind “saving people’s lives now” and “keeping the economy from cratering”.
But come around July, it will be something that she and the rest of her governing colleagues may have to do some hard thinking on. And then talk about to Simon Bridges. And then maybe make a very tricky call – depending on what Covid-19 has in store for us all.
Keep going!
Jacinda Ardern and Winston Peters at a Covid-19 press conference. (Photo: Hagen Hopkins/Getty Images)
Jacinda Ardern and Winston Peters at a Covid-19 press conference. (Photo: Hagen Hopkins/Getty Images)
Rolling updates on the Covid-19 outbreak for March 18 as they happen, by Spinoff writers.
The Spinoff’s coverage of the Covid-19 outbreak is funded by Spinoff Members. To support this work, join Spinoff Members here.
7.40pm: Possible Covid-19 case in Samoa
Samoa is currently testing a person suspected of being the country’s first Covid-19 case. The man arrived in the country on a flight from New Zealand on Wednesday last week, and is an Auckland resident, according to a Samoan government statement. Those test results could still take more than a week to process, because they have to be flown to Australia.
Contact tracing is currently under way. The person presented at hospital on Wednesday morning this week, after experiencing flu-like symptoms for two days. Worrying though the news is, bear in mind that in New Zealand, for example, about one in every 60 tested has come back positive.
4pm: Winston Peters says 80,000 New Zealanders travelling
The minister for foreign affairs, Winston Peters, says more than 80,000 New Zealand residents are currently on non-permanent trips overseas. His message, echoing that from MFAT earlier (see 9.45am) is to head home, and not to mess around. “If you can get home, start coming home now … Transportation options are closing up real fast. They could be stranded there so they need to think about it real hard now,” he told media. Charter flights were an option, but “Plan A is to get them home now on commercial flights while they still can.”
2.55pm: Bachelorette contestant being tested for Covid-19
TVNZ have just announced that a contestant in its Bachelorette NZ series is being tested for Covid-19. “We have immediately implemented Ministry of Health advice and notified those we have identified as being in close contact with the individual, those people who have been in close contact are now isolating until test results are confirmed,” it said in a statement.
The Spinoff understands that the special episode “The Men Tell All” was filmed at the Pumphouse Theatre in Auckland last Tuesday, March 10, with the full cast of Bachelors in attendance as well as host Art Green and Bachelorettes Lesina Nakhid-Schuster and Lily McManus.
“Those in contact include TVNZ employees as well as external parties related to the Bachelorette NZ production,” said the statement from TVNZ. “We appreciate there is public interest in the show and will advise media as soon as we have a test result. We stress that at this stage the contestant has not returned a positive Covid-19 test and TVNZ are taking all the necessary precautions in line with Ministry of Health advice.”
By March 8 New Zealand had five confirmed cases of Covid-19 and health authorities were urging everyone to “to regularly and thoroughly wash and dry their hands; cover coughs and sneezes; and stay home from school or work if sick”.
1.51pm: Comedy Festival cancelled
The 2020 NZ International Comedy Festival has been cancelled. This is from their statement:
“With deepest regret, we advise the cancellation of the 2020 NZ International Comedy Festival owing to the critical developments of the COVID-19 situation, and the Government’s guidelines around events and mass gatherings over the coming months. We are devastated but we have no doubt that this is the right decision. These are exceptional circumstances and we need to do what we can to eliminate the risk of spreading the virus in Aotearoa. We are incredibly proud of the 2020 festival programme and are heartbroken to not see it come to life on stage at this time.”
1.25pm: Peak not yet seen, says Dr Bloomfield
According to statistical modelling and international comparisons being used by the Ministry of Health, the peak of Covid-19 cases in New Zealand hasn’t yet been seen. He says there is still no evidence of community transmission, but precautions are necessary all the same. “What we think we might need to do in two weeks time, then we do it now.”
1.16pm: Travel restrictions, police visits
About 50 people from overseas have been visited by Police to check they are self-isolating as required. It follows two tourists yesterday being made liable for deportation after failing to self-isolate.
Bloomfield said they currently had recommendations before the special Covid-19 cabinet committee over public gatherings. Asked if they were similar to the Australian changes (see below) he said, “We’re looking very seriously at that.”
1.07pm: Around 150 close contacts of High School student to be tested
Dr Bloomfield has announced that all close contacts with a student at Logan Park High School in Dunedin will be tested, to make sure that none of them have contracted the virus. All will be required to self-isolate for fourteen days regardless of results. The school will now be closed until next week, after initially being closed for 48 hours. The test results are expected to come back on Friday.
“It is a unique situation, and this is part of the precautionary approach we’ve taken all along,” said Dr Bloomfield.
The Ministry of Education’s Secretary of Education Iona Halstead spoke to media today, saying “a plan was there for this eventuality, and it is working.” She said there are currently no plans for widespread closures, but further temporary closures are likely. She added that children who are unwell should be kept away from school, and regardless of whether closures take place or not, schools should prepare for more distance learning to take place. She also confirmed that there are no current plans to bring the school holidays forward.
1.02pm: Eight new cases announced
Dr Ashley Bloomfield has confirmed that there are eight new cases of Covid-19, bringing the total to 20. All of the new cases are related to international travel. Dr Bloomfield said the new cases reinforced the importance of the border restrictions brought in over the weekend. He said that while they were not retrospective, those who came in before the new rules took effect should also take precautions. Contact tracing is now taking place for those who were sitting near those who have tested positive.
12.48pm: Facebook blocks Spinoff coverage of Covid-19
This is a strange one to include in the live updates, but many of our readers have been getting in touch about it. The Spinoff has seen all current Facebook links removed from feeds, tagged as ‘inappropriate content’ or violating ‘community standards’, at the height of the Covid-19 epidemic. This includes posts written by highly reputable experts like Dr Siouxsie Wiles. For more information, please read Duncan Greive’s story on it.
12.02pm: Education minister looks to reassure parents
Education minister Chris Hipkins has reiterated the message to parents that they should continue to send kids to school. In a video posted on his facebook page, Hipkins said “while we don’t have community transmission of Covid-19, there’s no reason for mass school closures at this point.” He added that there could be unintended consequences of school closures, such as children having to be put in the care of grandparents. The full video can be watched below:
On that point, Otago University public health expert Dr Michael Baker told Morning Report today that more testing needed to be done to have certainty that community transmission wasn’t happening in NZ. He believes that schools should be closed now as a precaution, and to give the health system more time if community transmission is taking place.
11.25am: Australians told not to travel abroad
Australia’s measures against Covid-19 just went up another gear. “Do not travel abroad. Do not go overseas. That is a very clear instruction,” said Scott Morrison, the prime minister, in the last few minutes. He also announced a ban on “non-essential” gatherings of more than 100 people in indoor areas. Schools will stay open, but all school groups are instructed not to visit elderly care centres. Morrison also urged an end to hoarding. “It must stop. It’s un-Australian.”
There are currently 454 cases of Covid-19 in Australia. The majority remain related to people arriving from overseas.
10.45am: Trade Me announces new Covid-19 price gouging policy
Following widespread criticism, Trade Me has changed its tune and announced a new “natural disaster and civil emergency policy”, which, it says, “aims to restrict the price of items related to a disaster or emergency on the site”. As reported by The Spinoff a fortnight ago, numerous users of the trading platform were cheerfully price gouging on items such as hand sanitiser.
The new policy means they will monitor to ensure “reasonable prices and limiting profiteering” on products related to Covid-19. “Items such as face masks and hand sanitiser that have been listed for much more than their normal retail price will be removed and sellers will be asked to list these items at prices consistent with their standard price,” said Trade Me’s head of trust and safety, George Hiotakis. “We have not got involved in the prices of items on Trade Me before but given the special circumstances New Zealand finds itself in with the Covid-19 pandemic, we felt we needed to make a change.”
Meanwhile, today’s briefing from the Ministry of Health on the latest developments with Covid-19 in New Zealand will be at 1pm. The director-general of health, Dr Ashley Bloomfield, will be joined by the secretary of education, Iona Holsted. We’ll report full details here as they happen.
9.45am: NZers travelling overseas should return, says MFAT
The Ministry of Foreign Affairs has urged New Zealanders to avoid travelling abroad, and urged those currently travelling abroad to return home. In a statement, it says: “We now advise all New Zealanders to avoid all non-essential travel overseas due to the outbreak of Covid-19, associated health risks and travel restrictions.
“Countries around the world are imposing strict travel restrictions. This is leading to a reduction in passenger numbers and many air routes will not remain commercially viable for long. The options for New Zealanders to get home are reducing dramatically. We are therefore urging New Zealanders travelling overseas to consider returning home as soon as possible. Travelling New Zealanders should work with their travel agents and airlines to discuss options for returning home.”
9.30am: Fonterra a rare business bright spot, but still suspends dividend
Dairy giant Fonterra, New Zealand’s largest company, has reported a strong year’s earnings, with reported profit after tax of $501m. Other highlights of its interim results include debt reduced by $1.6bn to $5.8bn and a continuing slimming of its portfolio of subsidiaries. It also noted a 10% reduction in its coal usage as it continues efforts to reform its poor environmental image.
Despite that, these results look backwards, and the Covid-19 storm lies ahead, so the co-op has elected not to declare a dividend. CEO Miles Hurrell noted, “the potential impact of Covid-19 on global demand, geopolitical risks in key markets such as Hong Kong and Chile, and ongoing dry weather conditions here in New Zealand”.
Meanwhile this year’s joint NZ-Australia services for Anzac Day at Gallipoli have been cancelled, a joint statement from the two governments confirms.
9am: Flu vaccine programme brought forward
The government has announced that 400,000 more flu vaccines will be available this year and the programme will start earlier than usual. Vaccines are free for those 65 and over, pregnant people, those with certain chronic conditions and young children with a history of severe respiratory illness.
“It’s critical that we do all we can to prevent a bad flu season this year,” said David Clark, the health minister. “The flu causes significant strain on our health system and more people vaccinating against flu will ensure health services are there for those who need them most.
7.15am: Performing arts sector under massive pressure
With mass cancellations of programmes, the arts sector is facing a devastating winter. Sam Brooks has surveyed the damage, and spoken to some of the key people on and off the stage about how they’re coping. Here’s an excerpt:
Alice Canton’s show Year of the Tiger which opened at Basement Theatre last week, felt the full brunt of Covid-19. The show has since been cancelled at Canton’s request, but even before she pulled the plug things were dire. “I’ve lost thousands off this season,” she said. “I’ve never sold a show this poorly – presales have been eye-wateringly low, and I’m not just putting that down to a competitive market or Auckland Fringe fatigue. I sold zero tickets last Friday – which has never happened in the 14 years I’ve been making and producing shows.”
7am: How Covid-19 testing works
An important piece to read from microbiologist Dr Siouxsie Wiles, who has addressed a range of questions around how Covid-19 testing works, and whether New Zealand is doing enough of it. Read the piece in full here – including the guide to how coronavirus symptoms differ from influenza or the common cold. Here’s an excerpt:
“We have a finite number of kits to run the tests and the same kits are needed to test for flu. As other countries ramp up their testing needs these kits are becoming more difficult to get hold of. In other words, it would be bad to use them all up before we actually need them.
When the outbreak first started, tests were only run on people with specific symptoms and who had travelled overseas. Those conditions have now been relaxed, and doctors have been encouraged to use their discretion, but it is still only symptomatic people who are being tested. At this stage it doesn’t make sense to do the kind of testing South Korea is doing. It will waste a valuable resource. South Korea ramped up their testing when they had multiple cases of people in the community transmitting the virus and it was important to find all those people. We could do the same if we needed to.”
The massive economic rescue package has been released, with billions of dollars being put towards wage subsidies, benefit raises, tax relief for businesses and health spending. The details of it can be found in this cheat sheet, and a range of reactions from experts in economics, social services and the health sector have been collected here. The $12 billion in new spending has been described by the PM as “the most significant peace-time economic plan in modern New Zealand history”. The details of how it breaks down can be found in those articles, but there are a few more specific questions I’ve seen people asking which are worth addressing:
Will income protection measures apply to contractors and freelancers who can’t work? Yes, people who are self-employed full-time can claim $585 per week, provided they are unable to work due to self-isolation. The wage subsidy scheme will also be open to those who are sole traders, and provisional tax change thresholds will largely matter most to those who are earning less. Full details can be found on this Work and Income page.
Is the rise in benefit rates permanent or temporary? There are three main changes to the benefit system. The first is a one-off increase of $25 a week for the main benefit, which will be permanent, and will be paid on top of rises linked to wage growth indexation. The second is a doubling of the Winter Energy Payment for 2020 only – this goes to seniors and beneficiaries. And the third change is the extension of eligibility for parents to receive the In Work Tax Credit. Incidentally, the benefit rise was exactly what was recommended by the government’s own Welfare Expert Advisory Group, and then not implemented at the time.
Are we still looking at job losses, and if so, how many? Yes, there will still be job losses even with the wage subsidy scheme and other measures. How many is at this stage still an impossible question to answer. As finance minister Grant Robertson put it yesterday, “we are going to see many New Zealanders lose their jobs, and some businesses fail, we will have an extended period of deficits and our debt as a country will have to substantially increase.”
Where is the money for all of this coming from? Are taxes going up? The stimulus is coming out of increased borrowing, rather than increased taxes. Thomas Coughlan at Stuff has done a really useful explainer about the relationship between tax, spending and debt, and how they relate to the sums of money that have been put out there. Right now, the country is in a position of very low debt.
Positive Covid-19 test for High School student
There are now 12 confirmed Covid-19 patients in New Zealand. The latest confirmed case is a student at Logan Park High School in Dunedin, who is understood to have contracted it from his father who recently returned from Europe. Stuff reports that the school will be closed for two days, with a deep clean now underway. Contact tracing will also take place, and those the student came into contact with will be required to go into self-isolation. It is another example of family transmission, however, there is still no evidence of any cases of community transmission within New Zealand.
The nature of Covid-19 in New Zealand is therefore still believed to be one of isolated cases, rather than a wider outbreak. The NZ Herald has given a rundown of the stories of each person, written when there were 11 confirmed cases, and it included a note about the student who was showing symptoms.
There are no plans for wider school closures at this stage, however that comes with the standard caveat that situations can change quickly. Yesterday Radio NZ spoke to the Principals Federation, who urged parents to keep their kids in school now, partly because with only one case nationwide there isn’t really any necessity, and partly because each day of class time this year could be crucial, with disruptions possible. “I would just encourage parents to be thinking carefully about the importance of continuing to see their child go to school. Attendance every day that a school is open is really vital,” said Principal’s Federation head Perry Rush.
The option to close schools remains open, reports Stuff, though education minister Chris Hipkins maintains that in general they are safe places for students to be. The international experience on this is mixed, with some countries choosing to, but other countries who had managed outbreaks not seeing the need. One option that is currently in front of the ministry is moving or extending the school holidays, if a closure is necessary.
In more general terms, how are the new rules on gatherings being interpreted, when rather than an event it is simply a collection of 500 or more people? Jordan Bond at Radio NZ has reported on the different situation for places like malls, which are facing a different sort of situation to ticketed events. Director-General of Health Ashley Bloomfield has clarified that it’s not about 500 people being a magic number – rather, it’s about the principle of not holding large gatherings. For the performing arts sector, events are generally being cancelled wholesale – Sam Brooks has surveyed what that means for performers and practitioners, who are now in an exceptionally difficult position.
Meanwhile, testing is currently being ramped up, reports Newsroom’s Marc Daalder, with the announcement yesterday that more than 500 were underway, and a directive to doctors to widen their criteria in making decisions about whether to test. There have been concerns raised that the criteria was previously too stringent, with only 512 carried out since the beginning of the process. Capacity is also being increased, and by the end of the week there will be capability to run up to 1500 tests a day.