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Voting eligibility changes underway for locked out Kiwi expats abroad

A solution appears to be on the way for Kiwi expats abroad who may lose their voting rights if pandemic restrictions continue to keep them out of New Zealand, and an end to the de facto media ban on election day may also be on the way.

Overseas Kiwis who face losing their voting rights as a result of the Covid-19 outbreak are one step closer to a solution, with MPs advocating a legal reform to prevent them from being disenfranchised.

However, the Green Party and a legal expert are calling for a broader review of the voter eligibility requirements, claiming that they unjustly discriminate against expats who cannot afford to return to New Zealand on a regular basis.

Kiwi expats abroad may face disenfranchisement

The country’s electoral legislation presently requires New Zealand citizens living abroad to come home at least once in the three years preceding an election (or once per year for permanent residents), with approximately 63,000 overseas votes cast in 2020.

With stringent entry restrictions remaining in place as a result of the MIQ system and no clarity as to when borders will completely reopen as the pandemic progresses, a number of Kiwi expats abroad have urged Parliament to solve the matter before the next election.

In an initial report on the 2020 general election, Parliament’s justice committee has suggested, by majority, to change the existing eligibility criteria “to address situations where voters have been prevented from returning to New Zealand by circumstances out of their control, such as a pandemic”.

Kiwi expats abroad returning to Auckland
Kiwi expats abroad are returning to Aukland.

Although the number of Covid-19 travel restrictions at present had significantly decreased in comparison to those in place ahead of the 2020 election, the committee acknowledged that travel had been “severely constrained” at the time and that additional situation may occur in the future.

Green Party justice spokeswoman Golriz Ghahraman, whose party has called for a moratorium on eligibility requirements until the border ban is lifted, told the media that the select committee report was a welcome development but belated step toward change.

“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 advocated for a broader relaxation of the rules, claiming that a three-year visit requirement was “blatantly too short” in comparison to other countries and effectively disenfranchised students abroad, families, and others who couldn’t afford the cost of flights to return to New Zealand to maintain their voting rights.

Graeme Edgeler, a Wellington lawyer, told the media that the costs connected with voter eligibility rules had long been a concern, but the Covid pandemic had helped to highlight it.

“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 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 suggested that the government turn to the United States, which allows its residents to vote indefinitely, or the United Kingdom, which has a 15-year cap (although even that privilege is set to be removed).

Separately, the committee has urged a more comprehensive study of whether the present legal structure is resilient enough to withstand future disasters. The Electoral Act and the Constitution Act were predicated on the idea that the great majority of people could vote in person, with unanticipated and transitory circumstances only affecting polls in a few localities, according to the report.

“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.”

Possible end to the de facto media ban is underway

After the shift in the 2020 polling date produced some constitutional difficulties, it has also proposed a reassessment of the laws governing the ‘regulated period’ for an election, a period when limitations on advertising spending are observed.

The committee, recommending by majority, urged that the Government explore changing Section 197 of the Electoral Act so that election day follows the same norms as the voting period, which might mean an end to the de facto media ban on election day.

Election in New Zealand
Election in New Zealand

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

Former All Blacks Israel Dagg and Jonah Lomu are among those who have technically broken the law in the past by tweeting support for political parties despite not facing prosecution, while media outlets are severely limited in what they can publish until polls close, despite no such restrictions during the advance voting period.

Edgeler stated that the regulations governing voter influence on election day had “long been a problem, ignored in parts, and [were] probably not justifiable.”

The effective prohibition on individual speech should be replaced by a ban on election advertising by parties, candidates, and registered sponsors and promoters, with the same exceptions for polling day as for advance voting.

Given that aspect of the legislation was generally ignored, he stated that any issues about media coverage on the day may be addressed through the Broadcasting Standards Authority or the Media Council rather than a fine.

The National Party makes distinct, somewhat different suggestions in the interim report, including temporary eligibility modifications for the 2023 election rather than a more permanent remedy, as well as assessing the advantages “or otherwise” of amending the election day “influence” regulations.

National’s justice spokesperson, Paul Goldsmith, said the party preferred a more cautious approach rather than the irreversible measures urged by Labour.

While there was validity in investigating whether to reconcile election day procedures with advance voting, Goldsmith said a deeper principled dialogue was needed about whether it makes any sense for three-quarters of ballots to come in a fortnight before election day.

A spokeswoman for Justice Minister Kris Faafoi told media that the Government’s reaction to the interim report will be released in early April, and that he would “look carefully” at the committee’s suggestions regarding overseas voters.

Some of the other recommendations, according to the spokesperson, might be examined by a broader independent review of the country’s electoral rules, with a panel set to report back before the end of 2023 in view of the 2026 election.



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