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Purpose
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1.
This briefing seeks your agreement to the proposed scope and timeframe for the Electoral
Matters Bill (EMB). It also seeks your decision on progressing a paper to Cabinet to set out
your intentions for the EMB and provide the formal Government response to the Independent
Electoral Review’s final report.
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Executive summary
2.
In December 2023, you directed the Ministry to progress electoral law reform focused on
administrative improvements that would speed up the official vote count and support
operational and cost efficiencies in the delivery of electoral services. The Ministry proposes
you progress these reforms through the EMB. We also recommend you use the EMB to
modernise the Electoral Act 1993 (the Electoral Act) and to amend the Constitution Act 1986
to ensure the continuity of government during the post-election process.
3.
These improvements will be informed by Government direction and recent and upcoming
reports on electoral law reform, such as the upcoming Electoral Commission’s Report on
the 2023 General Election, which is due to you by 16 May 2024.
4.
The EMB is proposed for inclusion on the Legislation Programme S9(2)(f)(iv)
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S9(2)(f)(iv)
While many of the proposed changes to the Electoral Act will be
able to be made in time for the 2026 General Election, some will need a longer lead-in
time and may not be implemented until the 2029 General Election.
5.
We recommend you take a paper to Cabinet in May this year seeking agreement on the
proposed scope and timing of the EMB. By setting out the proposed plan for the EMB, the
Cabinet paper would provide the formal Government response to the IER’s final report,
which could then be publicly released.
OFFICIAL
6.
You are also progressing the coalition agreement commitments to consider extending the
term of Parliament. You recently received a briefing on options for progressing the term of
Parliament work programme [
Progressing a Term of Parliament Bill and referendum –
approach and timeframes 28 February 2024]. We will ensure alignment across the two work
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programmes, as needed.
Background
7.
Maintaining public confidence in general elections is critical for our democracy. There are
opportunities to improve the delivery of elections and achieve operational efficiencies at the
same time by amending and modernising the Electoral Act.
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8.
In December 2023, the Ministry provided you with options for electoral law reform [refer to
Briefing
Progressing a Term of Parliament referendum and any other electoral reforms 3
December 2023]. You directed the Ministry to progress electoral law reform focused on core
administrative improvements that would speed up the official vote count and support
operational and cost efficiencies.
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9.
These administrative improvements can be progressed at the same time as work to develop a
bill for referral to select committee to extend the parliamentary term to four years, subject to a
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binding referendum.1
Electoral law reform can be informed by recent and upcoming reports
10.
Government direction and a number of reports about electoral law and operations (which have
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been or are currently being prepared) can inform electoral law reform, including:
10.1. contributing towards the required 6.5 per cent cost savings for the Justice sector. The
Electoral Commission and Ministry of Justice are working together to identify areas
where efficiencies and technical changes can be made that will support this;
10.2. advice from the Auditor-General’s review of quality assurance procedures for vote
count in the 2023 general election, which is due to be published by 30 April 2024;
10.3. recommendations from the Electoral Commission’s Report on the 2023 General
Election, which it is required to provide to you by 16 May 2024;
10.4. recommendations from the Justice Committee’s Inquiry into the 2023 General
Election (Inquiry Report), which will examine election operations, electoral law
broadly, and long-term trends in elections; and INFORMATION
10.5. progressing any recommendations you would like to consider from the Independent
Electoral Review’s (IER) final report, which considered all aspects of New Zealand’s
electoral law in detail.2
11.
In January 2024, you released the final report of the IER and publicly indicated several areas
that you would not be seeking to progress.3 You also noted that a formal Government response
to the IER’s report would follow.
Proposed Electoral Matters Bill content OFFICIAL
12.
The Ministry proposes progressing your electoral law reform through the Electoral Matters Bill
(EMB), which is proposed for inclusion on the Legislation Programme S9(2)(f)(iv)
S9(2)(f)(iv)
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13.
Some amendments will be in place for the 2026 General Election, whereas others will provide a
pathway for change for 2029.4 The Electoral Commission will need to have sufficient lead-in
time to prepare for some changes, including those which need to be widely communicated to
voters and other participants in general elections.
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1 As agreed in the National Party coalition agreements with the Act and New Zealand First parties.
2 The IER was established by the previous Government as part of its comprehensive review of electoral law
[CAB-21-MIN-0274 refers]. It was the first comprehensive review of New Zealand’s entire electoral system since
the Electoral Act 1993 was introduced.
3 These were: lowering the voting age to 16, allowing all prisoners to vote and stand for Parliament, freezing the
ratio of electorate to list seats which would lead to extra MPs as the population increases, and repealing the
offence of ‘treating’ voters with refreshments and entertainment.
4 The Ministry is undertaking further work to determine which proposals could progress immediately and which
would need a longer lead-in time for implementation. We will provide further advice in due course.
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The EMB would focus on your core areas for reform
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14.
You have directed us to develop policy proposals on specific areas for electoral law reform –
administrative improvements that help speed up the official vote count and support operational
efficiencies. As part of these reforms, we also recommend modernising the Electoral Act where
it is expedient to do so, for example updating some of the language used and moving some
processes from the main Act to Regulations (and vice versa), while maintaining the integrity of
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the electoral process.
15.
We also recommend you use the EMB to progress changes to the Constitution Act 1986 to
ensure the continuity of government during the post-election process. Further details about
these proposals are set out below.
Proposals that may support speeding up the official vote count
16.
Subject to substantive policy analysis, this stream of work may include proposals on:
16.1.
advance voting (which currently has minimal legislative provisions in place to
regulate its delivery), such as considering whether to provide for a minimum period
for advance voting in legislation;
16.2.
special voting arrangements, such as considering whether special vote
INFORMATION
declarations could be issued and filled out electronically; and
16.3.
vote counting processes, such as considering whether roll scanning and initial
special vote declaration checks can begin before close of voting, and assessing
whether a person’s vote should be counted if they have voted in advance and die
before election day.
Other proposals to support administrative efficiencies
OFFICIAL
17.
There are a number of other proposals to support administrative efficiencies that may enable
better value for money and modernisation while maintaining the integrity of the election
process. Subject to substantive policy analysis, this stream of work may include considering:
17.1.
aligning advance voting and election day rules to create a single voting period,
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such as those for advertising and campaigning so that election day no longer has a
different set of rules;
17.2.
accessibility of electoral rolls, such as assessing whether it is still appropriate that
the roll is available for sale and public inspection;
17.3.
voter influence and false information, such as whether to prohibit voters from
taking photos of their ballot papers, and considering whether scrutineers should be
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able to require voters to be questioned about identity and if they have already voted;
17.4.
access to information, such as whether to extend what the Electoral Commission
can access through data-sharing; and
17.5.
modernisation and clarity changes, such as assessing the concern that the use of
“permanent resident” in the Electoral Act is confusing as it has a different meaning
from its use in the Immigration Act 2009, and whether to enable parents to take
children who cannot be left unattended into the polling booth with them.
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Possible Constitution Act 1986 proposal
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18.
A constitutional issue occurred following the 2023 General Election whereby the delay to the
return of the election writ necessitated fresh ministerial warrants being issued for the then
incumbent executive while judicial recounts were completed. We propose considering policy
changes to ensure the continuity of executive government if the return of the writ is delayed
for more than 28 days after the election, for example due to a judicial recount of the party or
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electorate vote.
19.
In December 2023, you agreed to include this in your electoral reform programme. We
recommend you progress this change through the EMB alongside other electoral reforms,
given that it changes our constitutional arrangements to address the risk of the Governor-
General not having Ministers to advise them.5
Cabinet paper setting out EMB scope and formal Government response to the IER’s final report
20.
We suggest you take a paper to Cabinet to discuss and seek agreement to the proposed
content for the EMB. It also would provide an opportunity to discuss electoral reform for this
parliamentary term with coalition partners (if this has not occurred already) as set out in
Cabinet Office Circular CO (24) 2: National, ACT, and New Zealand First Coalition
Government: Consultation and Operating Arrangements.
INFORMATION
21.
We propose the paper would be the Government’s formal response to the IER, by setting out
the proposed work programme for the EMB. The Ministry has received a number of queries
since the final report was released, seeking information about the formal response. After
Cabinet has considered the paper, it could be proactively released to respond to these
queries and fulfil the commitment you expressed to provide a formal Government response
when you released the IER’s final report in January 2024.
22.
Should you agree to progress a Cabinet paper, we will provide you with a draft for your
consideration.
OFFICIAL
Proposed timeline for the EMB
23.
The proposed key milestones for the EMB are set out in Table One below. The timing of the
activities is based on the likely release dates of upcoming reports, which is why there may
THE
be two opportunities for Cabinet consideration of policy proposals.
24.
Depending on the timing of the Justice Committee’s report, the EMB may provide an
opportunity to progress some of the Committee’s recommendations, particularly those
relating to administrative and operational efficiencies. Realistically, this will need the Justice
Committee to report back on its Inquiry by the end of 2024. If the Committee reports back
later that this, it is unlikely its recommendations could be progressed through the EMB.
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25.
S9(2)(f)(iv)
These legislative timings are very tight, but necessary to
provide certainty for the 2026 General Election and the Electoral Commission’s operational
planning. We wil provide further advice on this once the Committee’s report has been
released.
5 As we advised when we met with you in December 2023, these changes would be outside the scope of the Statutes
Amendment Bill, which is only intended to make minor amendments.
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Next steps
28.
Subject to your agreement, the Ministry will provide you with a draft Cabinet paper on the
proposed scope and content of the EMB for your consideration, and for ministerial and
coalition party consultation.
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29.
We are available to meet with you to discuss this briefing if you wish.
Recommendations
We recommend that you:
1.
Agree to progress electoral law reform through the Electoral Matters
YES / NO
Bill (EMB);
2.
Agree that the EMB will be focused on core administrative changes to YES / NO
the Electoral Act 1993 that can speed up the official vote count, enable
operational and cost efficiencies, and modernise the law while still
maintaining the integrity of the electoral process; INFORMATION
3.
Agree to also progress in the EMB amendments to the Constitution Act YES / NO
1986 to ensure the continuity of government during the electoral
process;
4.
Direct the Ministry to provide you with a draft paper for Cabinet
YES / NO
seeking agreement to the proposed EMB content and providing the
formal Government response to the Independent Electoral Review;
and
5.
Indicate whether you would like to meet with officials to discuss.
YES / NO
OFFICIAL
THE
Hayley Denoual
Policy Manager, Democracy and Open Government
APPROVED
SEEN
NOT AGREED
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Hon Paul Goldsmith
Minister of Justice
Date
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Hon Paul Goldsmith, Minister of Justice
Report of the Electoral Commission on the 2023 General Election
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Date
17 May 2024
File reference
ELP-17-11
Actions sought
Timeframe
Note the recommendations made in the
Report of the Electoral
Commission on the 2023 General Election (the Report).
By 23 May 2024
Note you must table the Report
in the House of Representatives
no later than Thursday, 23 May 2024.
Agree to the proposed scope for the Electoral Matters Bill (EMB).
By 27 May 2024
Contacts for telephone discussion (if required)
Telephone
First
INFORMATION
Name
Position
(work)
(a/h)
contact
S9(2)(a)
Kathy Brightwell
General Manager, Civil and
Constitutional Policy
Hayley Denoual
Policy Manager, Democracy
X
and Open Government
Rose Stainer
Senior Policy Advisor,
Democracy and Open
Government
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Minister’s office to complete
Noted
Approved
Overtaken by events
Referred to:
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Seen
Withdrawn
Not seen by Minister
Minister’s office’s comments
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Purpose
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1.
This briefing provides you with information about the
Report of the Electoral Commission on
the 2023 General Election (the Report) and how its recommendations align with your plans
for electoral law reform this term. You must table the Report in the House of Representatives
(the House) no later than Thursday, 23 May 2024.
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2.
We seek your agreement to the scope of the Electoral Matters Bill (EMB) being focused on
improving the efficiency of the enrolment and voting processes, and increasing the timeliness
of the official vote count. It would also seek to support administrative efficiencies and ensure
the continuity of Ministerial tenure during the post-election period.
Executive summary
3.
You previously agreed to progress electoral law reform through the EMB by directing the
Ministry to focus on core administrative improvements that would speed up the timeliness of
the official vote count and support operational and cost efficiencies. You have also directed
officials to consider the future of post-writ day enrolment and election day enrolment.
4.
Concurrently, the Auditor-General and the Electoral Commission (the Commission) have
INFORMATION
produced reports that review the running of the 2023 General Election and what
improvements could be made for future elections, particularly in light of the errors discovered
in the official vote count process. Some recommendations from the Commission’s Report
propose changes to the Electoral Act 1993 (the Act) and the Electoral Regulations 1996 (the
Regulations).
5.
In addition, the Independent Electoral Review (IER) considered aspects of New Zealand’s
electoral law in detail and made over 140 recommendations, including on improving voting
processes. You publicly released the IER’s final report in January 2024.
OFFICIAL
6.
The EMB is well placed to address recommendations from the Commission’s Report and
several from the IER’s final report. We recommend progressing those that focus on:
6.1.
improving the efficiency of the enrolment and voting processes, and bolstering the
integrity and increasing the timeliness of the official vote count process,
including
THE
considering whether and when enrolment should close, special and advance voting
settings, and considering data-sharing and increasing the use of electronic support;
6.2.
improving administrative efficiencies, including considering donation disclosure
thresholds, a single voting period for advertising and campaigning rules, and
modernisation and clarification changes; and
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6.3.
the Constitution Act 1986, to ensure continuity of Ministerial tenure in the event of a
delay to the return of the writ following an election.
7.
In addition, the Report recommends amendments that are outside of enrolment and voting
processes and therefore outside the EMB’s proposed scope. Some of these could potentially
be added to the policy programme once the EMB is underway, should resources allow and
subject to any other policy priorities. Other agencies have also raised potential areas of
reform that could potentially be considered later in the term.
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Should you agree to the proposed scope in
paragraph 6 above, we will work with the Commission to develop detailed policy proposals
for inclusion in a paper for Cabinet’s consideration later this year. The EMB can be the formal
Government response to the IER’s final report and the paper can advise Cabinet of this.
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9.
The Justice Committee (the Committee) has also commenced its Inquiry into the 2023
General Election. The EMB may provide an opportunity to progress some of the Inquiry’s
recommendations. However, this is contingent on the Committee reporting back on its Inquiry
by the end of 2024. You would need to take a paper containing any Inquiry recommendations
you wish to progress to Cabinet by the end of March 2025.
Background
10.
On 11 April 2024, you received the briefing
Progressing your electoral law reform through the
Electoral Matters Bill which provided advice about progressing recommendations from the
final report of the IER and future electoral reports. You discussed its contents with officials
on 13 May 2024 and indicated that before making final decisions about the scope of the EMB,
you wanted to consider
General Election 2023: Independent review of counting errors by the
Auditor-General (the OAG Review) and the Report. INFORMATION
11.
The OAG Review was tabled in the House on Tuesday 7 May 2024. The Commission
provided its Report on Thursday, 16 May 2024, and must be tabled in the House by
Thursday 23 May 2024. You are meeting with the Board of the Commission on Wednesday
22 May 2024 and may wish to discuss its Report and recommendations at that meeting.
Summary of the recommendations of the Electoral Commission’s Report
12.
The Report contains 44 recommendations. Most of the recommendations propose changes
to the Act and the Regulations to strengthen the framework within which our parliamentary
OFFICIAL
elections operate.
13.
Given that the errors in the official vote count were examined in detail by the OAG Review, a
key area of focus in the Report is enrolment and voting processes (including the
administration of special votes). The Report’s recommendations relating to those processes
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are largely within the proposed scope of the EMB and are covered in more detail in the next
section of this briefing (paragraphs 19 to 50).
14.
The Report also makes recommendations regarding numerous other matters such as
election resilience, scrutineers, electoral finance and campaigning, political party and
candidate
nominations,
political
party
registrations,
and
enforcement.
These
recommendations largely engage with fundamental issues about how political parties,
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candidates, and the public participate in our democratic and electoral processes. These
topics were also considered by the IER’s final report and some of the IER’s recommendations
on these topics overlap with those from the Report.
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15.
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S9(2)(f)(iv)
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OFFICIAL
We seek your agreement to the proposed scope of the EMB, which includes matters raised
in recommendations in the Commission’s Report and the IER’s final report
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19.
You previously agreed to progress electoral law reform through the EMB by directing the
Ministry to focus on the key objectives of:
19.1. improving the efficiency of the enrolment and voting processes; and
19.2. bolstering the integrity and increasing the timeliness of the official vote count
process.
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20.
The EMB as currently proposed would also:
20.1. make administrative and operational changes that support cost efficiencies for the
Commission; and
20.2. ensure the continuity of Ministerial tenure during the post-election period.
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21.
Both the Report and the IER’s final report include a number of recommendations relating to 1982
enrolment, voting and count processes, which we consider align well with matters that could
be developed further as detailed policy proposals for the EMB. Some of these opportunities
for improvement were confirmed by the OAG Review. Once you have agreed to the scope of
the EMB, we can provide you with more specific advice on the recommendations from these
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reports as required.
A strategic consideration of the interconnected elements of electoral law is required
22.
Over the last 20 to 30 years incremental changes have been made to enrolment and voting
processes. These changes, made either by Government and Ministerial direction or by the
Commission as part of service delivery improvements, have often occurred in isolation
without a wider strategic look at the collective impact and potential consequences on other
aspects of the electoral process. These changes include updates to provisions and operating
procedures for election day enrolment, special voting, and advance voting, which have all
had some impact on the timeliness of the official vote count.
23.
The current 1993 Act replaced its predecessor, the Electoral Act 1956, and was introduced
as part of the shift in electoral systems from First Past the Post (FPP) to Mixed Member
Proportional (MMP). A number of provisions from the 1956 Act (set in the FPP era) were
INFORMATION
carried over to the 1993 Act (operating in an MMP environment) are now out of date and no
longer fit for purpose. Since its enactment, there has been little strategic consideration of the
implications of the transition between the Acts (as well as other service delivery and
technological changes introduced since) on enrolment and voting processes, and the
timeliness of the official vote count.
24.
In considering the amendments you wish to progress through the EMB, a balance needs to
be struck between your key objectives (in paragraph 19 above) and voter accessibility, public
trust and confidence in our electoral system. For example, rules that distinguish the advance
OFFICIAL
voting period from polling (election) day in terms of enrolment, voting services provision and
vote counting, advertising and campaigning may appear increasingly arbitrary as the
numbers of voters now voting in advance has increased significantly in recent years. Further
policy work is required to determine whether such rules are still fit for purpose in light of your
objectives.
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A. Improving the efficiency of enrolment and voting processes, and bolstering the integrity
and timeliness of the official vote count process
25.
We are working with the Commission to understand what changes can be made to the Act to
support the Commission to improve the efficiency of enrolment and voting processes, while
also helping to reduce the pressure on completing the official vote count and move towards
your goal of improving its timeliness. We seek your agreement to consider enrolment settings,
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the issuing and processing of special votes, advance voting settings, and introducing more
data-sharing for enrolment and electronic support for the vote count.
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Enrolment settings
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26.
Improvements to the accessibility of voting, such as election day enrolment and advance
voting (covered in paragraphs 33 to 36 below), have required increased service delivery from
the Commission. Any person who enrols to vote or updates their enrolment details (with some
exceptions) after writ day must cast a special vote.
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27.
There are opportunities to consider:
27.1. whether enrolment should close, and if so, when;
27.2. whether some voters making particular changes to their enrolment details after writ
day could be issued an ordinary ballot (instead of a special ballot as currently
required); and
27.3. providing greater flexibility in the ways that the Commission can undertake
enrolment and enrolment update inquiries, such as reducing the reliance on postal
services.
28.
This aligns well with recommendations 6 to 8 and 12 of the Report, which seek to improve
how voter enrolment details are updated, so the total number of special votes can be reduced.
INFORMATION
Improving special vote processing
29.
Special votes are complex to administer and process. They can take up to 10 times longer to
process than ordinary ballots due to the checks required to ensure their validity. There has
been a significant increase in special votes in recent years, growing from 11.56 per cent of
the total vote in 2011 to 20.89 per cent in 2023.
30.
If the trend for more special votes continues, then there is a risk that the preliminary count
does not provide an accurate indicator of the final result (as the unknown special vote count
OFFICIAL
has a greater impact on the overall result) and timely official vote count results are impacted
(because of the extra resources and time required to check the special votes before they can
be processed). This in turn risks delaying the formation of the government, because coalition
negotiations often cannot be concluded until the final make-up of the House is confirmed.
THE
31.
There are opportunities to consider ways in which the number of special votes could be
reduced or processed more quickly while still maintaining the voter accessibility it offers. This
could include potentially considering matters such as:
31.1. issuing voters on the unpublished roll with ordinary ballots using a unique identifier if
sufficient funding is available (recommendation 8 of the Report and recommendation
50 of the IER’s final report);
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31.2. introducing electronic issuing of special vote declarations;
31.3. beginning special vote declaration checking prior to the close of polls
(recommendation 127 of the IER’s final report); and
31.4. updating the Regulations to reconsider the general requirement to transmit special
votes to home electorates (both domestically and from overseas) for counting.
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32.
The Report also includes a recommendation to reduce the growing number of special votes 1982
(recommendation 12), and the IER’s final report recommended modernising archaic
language relating to special voting (recommendation 124).
Setting out advance voting more formally in legislation
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33.
Advance voting has become an increasingly important and expected feature of our electoral
system. During the 2023 General Election, over 61 per cent of voters chose to vote in the
advance period. Voters now expect to be able to vote ahead of election day at a time and
location that suits them.
34.
However, the Act provides minimal formal regulation of the provision of advance voting, and,
as discussed in paragraphs 24 and 44 to 46, some of the differences in the rules between
the advance voting period and election day may increasingly appear arbitrary. Currently,
advance voting is mainly a matter of operational discretion exercised by the Commission. For
example, the Commission determines how long the voting period should be and this has
varied from 12 days in 2023 to 17 days in 2014.
35.
By setting out advance voting rules more clearly in the Act, there may be opportunities to
reduce the number of special votes issued. For example, currently the election roll closes on
INFORMATION
writ day partly to enable sufficient time for the Commission to print and distribute rolls to
voting places. However, if there was certainty about when advance voting was due to begin,
the closing date of the roll could potentially be extended beyond writ day. This would allow
more time for people to complete their enrolment, so they can cast an ordinary rather than
special vote.
36.
There are opportunities to consider:
36.1. setting out advance voting in legislation to provide certainty;
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36.2. establishing minimum and maximum periods for advance voting; and
36.3. establishing service requirements for required hours that advance voting must be
open, and the number and distribution of voting places available during this period.
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Introducing more data-sharing for enrolment and electronic support for the count
37.
The vote counting process needs to be robust so that election results are accurate, widely
accepted and can be made available quickly.
38.
A core feature of our electoral system is that votes are counted manually twice – this is a
key tenet that maintains public confidence that the outcome has not been interfered with.
However, this process is resource intensive and time-consuming. There are a number of
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statutory checks, which must be undertaken to ensure accuracy and integrity, including the
scrutiny of the rolls, the investigation of potential dual votes, and then the rechecking and
recounting of votes.
39.
There may be opportunities to use technology to improve processes to speed up the release
of the official count without losing the accuracy and integrity required, such as:
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39.1. data-sharing with other agencies to support improved roll data (recommendation
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118 of the IER’s final report);
39.2. increased use of roll scanning and moving towards a digital roll with live roll mark off
(which would enable the issuing of more ordinary votes);
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39.3. scanning of ordinary ballots only for the preliminary vote count which is currently
undertaken manually – this could enable human resources to be focused on the
manual official vote count earlier; and
39.4. scanning of special ballots for the preliminary vote count,1 which could give a better
degree of certainty about which political parties are likely to form the next
government and enable them to finalise coalition negotiations.
40.
The Ministry is working with the Commission to consider how these options could be
implemented with the technology currently available.
B. Administrative efficiencies
41.
We seek your agreement to consider proposals that improve administrative efficiencies to
support the delivery of a cost-effective election. This includes considering changing donation
INFORMATION
disclosure thresholds, establishing a single voting period, and making modernisation and
clarity amendments.
Donation disclosure thresholds
42.
Following your discussion with officials on 13 May 2024, you asked officials to consider
making regular updates to the donation disclosure thresholds. The thresholds for public
disclosure of donations are made to maintain public trust in political party financing and to
ensure oversight by the public of potential influences on political parties and candidates.
OFFICIAL
43.
There are opportunities to consider whether administrative efficiencies can be achieved by
addressing:
43.1. the frequency of updates to donation disclosure threshold amounts; and
THE
43.2. if so, how much thresholds should be increased by.
Single voting period rules for advertising and campaigning
44.
New Zealand’s electoral system is stil largely premised on the idea of people voting in-
person, at a physical polling place within their electorate on a single polling day. The
legislation specifies a polling (election) day with voting undertaken ahead of that date
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identified as advance voting. This means there are different rules for advance period
compared to polling day, such as advertising and campaigning including buffer zones.
45.
However, with more voters choosing to vote in the advance period some consideration
should be given to whether these rules are still fit for purpose. This would tie in with any
1 Currently, under section 174 of the Act the preliminary vote count only includes ordinary votes.
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considerations about the future closing day of enrolment and public perception of polling
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day as the day on which voting should mainly take place.
46.
This would also progress recommendations 43 and 44 of the Report on campaigning, and
recommendations 34, 35, 76, 77 and 137 of the IER’s final report.
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Modernisation and clarity changes
47.
The EMB could progress proposals that will support modernisation and clarification of the
Act and improve administrative efficiencies.
48.
This could include considerations such as:
48.1. how the post is used to support elections in the future, due to the increased cost of
and reduction in postal services (which links to recommendation 6 of the Report and
paragraph 27.3 of this briefing);
48.2. addressing the concern that the use of “permanent resident” in the Act is confusing
as it has a different meaning from its use in the Immigration Act 2009
(recommendation 21 of the IER’s final report); INFORMATION
48.3. examining the layout of the ballot paper to make it easier for people to cast valid
votes (recommendation 16 of the Report);
48.4. not requiring the Commission to send information to voters about the Māori Electoral
Option for an out-of-cycle local triennial election that does not have a Māori ward
(recommendation 5 of the Report); and
48.5. enabling parents to take children who cannot be left unattended into the polling
booth with them (recommendation 120 of the IER’s final report).
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C. Constitution Act 1986 proposal
49.
A constitutional issue occurred following the 2023 General Election where the delay to the
return of the election writ necessitated fresh ministerial warrants being issued for the then
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incumbent executive while judicial recounts were completed. We propose considering
policy changes to ensure the continuity of executive government if the return of the writ is
delayed for more than 28 days after the election; for example, due to a judicial recount of
the party or electorate vote. This will address the risk that the Governor-General is left
without Ministers to advise them.
50.
In December 2023, you agreed to include this in your electoral reform programme. We
recommend you progress this change through the EMB, given that it changes our
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constitutional arrangements and would implement recommendation 3 of the Report (which
reiterates recommendation 43 of the IER’s final report).
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57.
You are meeting with the Board of the Commission on Wednesday, 22 May 2024 where
you may wish to discuss its Report, and the proposed scope of the EMB discussed in this
briefing.
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58.
You must table the Report in the House no later than Thursday, 23 May 2024 as required
by section 8(2) of the Act. You are not required to formally respond to the Commission’s
Report.
59.
The Commission will publish the Report on its website immediately after it is tabled and
issue a media release. The Commission will also provide your office with copies of the
Report to forward to the Justice Committee for consideration as part of its Inquiry. To this
end, we understand the Committee will be receiving an oral briefing from the Commission
on its Report on Thursday, 23 May 2024 from 9:00am to 9:45am. If you have not tabled the
Report prior to Thursday, we recommend you provide an advance copy of the Report to the
Committee to assist in its preparations for this briefing.
60.
Following your direction on the scope of the EMB, the Ministry will continue to work with the
Commission in the course of developing policy proposals for your approval to take to
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Cabinet.
Recommendations
We recommend that you:
1.
Note the recommendations made in the
Report of the Electoral Commission on
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the 2023 General Election (the Report), and that some align well with your
proposed policy programme;
2.
S9(2)(f)(iv)
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3.
Agree to progress electoral law reform through the Electoral Matters Bill (EMB),
YES / NO
informed by recommendations from recent and upcoming reports;
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4.
Agree that the scope of the EMB will be focused on improving the efficiency of
YES / NO
the enrolment and voting processes, increasing the timeliness of the official vote
count, and making administrative efficiencies;
5.
Agree to progress in the EMB amendments to the Constitution Act 1986 to
YES / NO
ensure the continuity of government during the post-election period;
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6.
Note that other recommendations from the Report as well as matters raised by
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other agencies that do not fit within the proposed scope for the EMB could be
considered later in the term;
7.
Note you must table the Report in the House of Representatives no later than
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Thursday, 23 May 2024; and
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Provide an advance copy of the Report to the Justice Committee, as part of its
YES / NO
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Inquiry into the 2023 General Election, to assist its preparations for the Electoral
Commission’s oral briefing at 9:00am on Thursday, 23 May 2024 (if you have not
tabled the Report prior to Thursday).
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Hayley Denoual
Policy Manager, Democracy and Open Government
APPROVED SEEN NOT AGREED
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Hon Paul Goldsmith
Minister of Justice
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Hon Paul Goldsmith, Minister of Justice
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Proposed approach to the Government response to the Justice Committee Inquiry into the
2023 General Election
Date
6 December 2024
File reference
INQ-2024-12-06
Action sought
Timeframe
Agree to the proposed approach to the Government response to
17 December 2024
the Justice Committee’s Inquiry into the 2023 General Election.
Sign the attached letter to the Chair of the Justice Committee.
17 December 2024
Contacts for telephone discussion (if required)
Name
Position
Telephone
First
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contact
(work)
(a/h)
S9(2)(a)
Emily Douglas
Acting General Manager,
Civil and Constitutional
Policy
Hayley Denoual
Policy Manager,
Democracy and Open
Government
Ella Pearce
Policy Advisor,
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Democracy and Open
Government
Minister’s office to complete THE
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Referred to:
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Withdrawn
Not seen by Minister
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Purpose
1.
This briefing seeks your approval to a proposed approach to the Government response to
the Justice Committee’s Inquiry into the 2023 General Election (the Inquiry).
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Key Messages
2.
This briefing is part of a suite of advice on proposals for the Electoral Matters Bill (EMB):
2.1.
Electoral Matters Bill: Options to improve the timeliness of the vote count,
6 November 2024;
2.2.
Electoral Matters Bill: Options to improve the efficiency of electoral processes,
6 December 2024;
2.3.
Electoral Matters Bill: Continuity of government and Electoral Commission
governance, 6 December 2024;
2.4.
Proposed approach to the Government response to the Justice Committee Inquiry
into the 2023 General Election, 6 December 2024 (this briefing).
3.
The Justice Committee (the Committee) tabled its report on the Inquiry into the 2023 General
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Election on 11 November 2024, making 65 recommendations. We are seeking your
agreement to our proposed classification of these recommendations as follows:
3.1.
Fifteen recommendations are discussed in the above EMB briefings;
3.2.
Five further recommendations are suggested for inclusion in the EMB;
3.3.
Forty recommendations could be considered at a future date; and
3.4.
Five recommendations are operational, which the Electoral Commission (the
Commission) will consider.
4.
The EMB provides a useful vehicle to progress a further five of the Committee’s
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recommendations that are not discussed in other briefings. We are seeking your approval to
include these in the EMB.
The Justice Committee has tabled its inquiry into the 2023 General Election
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5.
In February 2024, the Committee initiated an inquiry into the 2023 General Election, as is
convention after each general election. The terms of reference were to examine the law and
administrative procedures for the conduct of parliamentary elections in light of the 2023
General Election.
6.
In the course of its Inquiry, the Committee undertook a public submissions process which
allowed people to share their views on the 2023 General Election. The Committee received
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written submissions from 96 individuals and organisations, and heard oral submissions from
22 submitters. These views have been reflected in the Committee’s report.
The Committee has made 65 recommendations following its Inquiry
7.
The Committee tabled its report on 11 November 2024. The report contains 65
recommendations, with a particular focus on three main themes:
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7.1.
election operations, including but not limited to administration, logistics, and voting
practices;
7.2.
electoral law broadly, including advertising, party lists, polling places, registration on
the general and Māori rolls, donations, and any changes to legislation since the
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previous General Election; and
7.3.
long-term trends in elections, including advance voting, turnout, the capacity of the
Commission, and disinformation.
The Committee has endorsed many of the Commission’s recommendations from its report into the
2023 General Election
8.
Under section 8(1) of the Electoral Act 1993 (the Act), the Commission must provide a report
to the Minister of Justice on the administration of general elections within six months of the
return of the writ for that election. The Commission must publish its report, and it must be
tabled in the House by the Minister of Justice.
9.
For the 2023 General Election, the Commission’s report was tabled in the House on 23 May
2024. It contained 44 recommendations, covering election resilience, enrolment processes,
rules for candidates and parties, among other matters. The Justice Committee considered
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the Commission’s report as part of its Inquiry, and also received an oral submission from the
Commission. The Committee has endorsed many of the Commission’s recommendations in
its report, and we have noted corresponding recommendations where relevant.
Proposed approach to the Government response to the Committee’s Inquiry
10.
You have directed the scope of the EMB to include improving the efficiency of the vote count
and electoral processes.1 We have considered this scope in our analysis of the Committee’s
recommendations, to ensure that proposals which support your objectives can be progressed
via the EMB.
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11.
We have formed a preliminary view on how to classify the Committee’s recommendations, to
inform the direction of the Government response, as set out in the following sections.
Appendices 1 and 2 set out further detail relating to the classification of each of the
Committee’s recommendations.
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12.
Some of the Committee’s recommendations are lengthy or cover multiple issues. In those
cases, we have classified them according to where the majority of the matters best sit.
You have separately received advice on a number of recommendations that could be
included in the EMB
13.
The Committee made 15 recommendations which we are already working on for inclusion in
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the EMB. Advice on these recommendations has been provided to you in the other EMB
briefings. We will amend our classification and draft the Government response in line with
your decisions on those EMB briefings.
14.
The recommendations that fall into this category are noted in Table One of
Appendix 2.
Some examples include recommendations about addressing the growing number of special
1 Briefing:
Report of the Electoral Commission on the 2023 General Election, 17 May 2024.
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votes, which you received advice on in
Electoral Matters Bill: Options to improve the
timeliness of the vote count (6 November 2024). The Committee also made
recommendations which relate to efficiency of enrolment processes, and you have received
advice on this in
Electoral Matters Bill: Options to improve the efficiency of electoral
processes (6 December 2024)
.
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Additional recommendations that we suggest could be included in the EMB
15.
The EMB provides a vehicle to respond to recommendations from the Committee’s report,
over and above the proposals described in paragraph 13 and Table One of
Appendix 2.
However, the scope of the EMB relates to the speed of the official vote count and the
efficiency of electoral processes. Therefore, we do not propose to progress recommendations
from the Committee which fall outside this scope, or which could slow down decisions or
drafting, given the tight timeframes for passing the EMB ahead of the 2026 General Election.
16.
We have developed the following criteria to assess whether other recommendations from the
Inquiry are suitable for inclusion in the EMB:
16.1.
Straightforward – the recommendation is not controversial or complex, or requires
significant drafting, and is easy to implement. These are ‘quick wins’ that are sensible
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to include in the EMB and enhance the consistency of electoral law;
16.2.
Necessary – the recommendations will support the effective and efficient running of
the 2026 General Election; and
16.3.
Cost – implementing the recommendations must be cost neutral or generate cost
savings.
17.
We have analysed the remaining Committee recommendations that have not already been
considered through advice on the EMB in accordance with the above criteria and scope of
the EMB. We consider that an additional five recommendations could be included in the EMB.
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These are minor, largely administrative proposals which we consider to be ‘quick wins’ that
can be achieved prior to the 2026 General Election. Our analysis of these five
recommendations is set out in
Appendix 1, and summarised below:
17.1.
Recommendation 2: amend the candidate nomination provisions in the Act to refer to
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the Commission instead of the Returning Officer. This aligns with the new centralised
process for candidate nominations, so would ensure the legislation reflects current
practice.
17.2.
Recommendation 9: clarify that an MP cannot be a scrutineer. This would ensure that
voters are not improperly influenced by the presence of a sitting MP at a polling place
who could be viewed as endorsing a particular candidate.
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17.3.
Recommendation 34: increase the number of list candidates that are displayed in
pol ing places and on the Commission’s website. This would increase the
transparency around who is standing in an election and allow voters to access more
information from a central source.
17.4.
Recommendation 39: clarify the obligation of resident class visa holders to enrol to
vote. The current rules are difficult to understand because the use of the term
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‘permanent resident’ in the Electoral Act 1993 and Immigration Act 2009 is misaligned,
and each use the same term to describe different residence statuses.
17.5.
Recommendation 51: clarify the financial disclosure rules for registered parties who
apply to cancel their registration. This would align with the policy intent of the financial
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disclosure requirements and close a potential loophole.
18.
The Commission has been consulted on these proposals.
19.
We are seeking your agreement to include the additional five recommendations set out above
and in
Appendix 1 in the EMB. If you agree, we will continue to work on the details of the
recommendations as we prepare for Cabinet decisions for the EMB in March 2025. If our
assessment changes so that the recommendations are no longer suitable for the EMB, or we
determine that other recommendations are in fact suitable for the EMB, we will provide further
advice as required.
Recommendations that the Government could agree to consider at a future date
20.
The 40 recommendations in this category are ones which were either too complex, low
priority, or costly to progress through the EMB, when applying the criteria noted in paragraph
16. We consider that these proposals merit further work to come to a final view and advice.
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21.
There were a variety of reasons why these recommendations did not meet our criteria for
inclusion in the EMB. For example, some recommendations raised issues around the New
Zealand Bill of Rights Act 1990, others raised complex political matters to consider in the
policy design, or they would be too complex to implement. We also identified
recommendations that raised key issues, but we think may have alternative solutions that
differ from the Committee’s recommendation. In Table Two of
Appendix 2 we have noted
the criteria that we do not think has been met.
22.
We have prioritised our work according to your preferred direction for the EMB, as noted in
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paragraph 10. If there are recommendations in this category that you are interested in
pursuing via the EMB, we can provide advice on those areas. Otherwise, we suggest
considering these recommendations in the next available legislative vehicle, where
appropriate.
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Recommendations that can be progressed operationally
23.
The Committee made five recommendations relating to operational matters that do not
require a legislative response and are for the Commission to consider. These are noted in
Table Three of
Appendix 2.
We recommend aligning the timing of the Government response with Cabinet
decisions on the EMB
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24.
A Government response to the Inquiry is due within 60 working days of the Inquiry being
presented to the House under Standing Order 256. To meet this timeframe, the Government
response to the Justice Committee’s report is due by 26 February 2025.
25.
As set out in the other EMB briefings, we are proposing that you seek Cabinet decisions
relating to the EMB in March 2025. Deferring the Government response to align with Cabinet
decisions on the EMB means that the Government response can better address the
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recommendations made by the Committee, including specifically referencing the proposals
that will be included in the EMB (see below for further detail). It will also avoid seeking Cabinet
decisions in early 2025, when we anticipate that Cabinet will have higher priorities after the
summer recess. We liaised with your Office after the Inquiry report was tabled, who agreed
with this approach.
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26.
The approach outlined above means that the Government response to the Committee’s
Inquiry report will not meet the required timeframe as set out in Standing Order 256. This
risks the Committee writing to you to explain the delay, but we think this risk can be mitigated.
If you agree, we recommend you sign the letter (attached as
Appendix 3) to the Chair of the
Justice Committee outlining the reasons for the proposed timing for the Government
response.
Next steps
27.
If you agree with our assessment set out in
Appendices 1 and 2, we will draft the
Government response and Cabinet paper in line with your decisions on this briefing. You will
receive these drafts in early 2025, along with a separate draft Cabinet paper on the EMB, to
prepare for overall Cabinet decisions for the EMB in March 2025.
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28.
If you agree with the approach of aligning the timing for the Government response with
Cabinet decisions on the EMB, we recommend that you sign and send the letter attached as
Appendix 3 before the deadline to table the Government response on 26 February 2025.
Recommendations
29.
We recommend that you:
1.
Note the Justice Committee’s report
Inquiry into the 2023 General
Election, which made 65 recommendations to the Government, was
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tabled on 11 November 2024;
2.
Note the proposed approach to delay the Government response to
the Justice Committee report, to ensure alignment with Cabinet
decisions on the Electoral Matters Bill;
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3.
Agree to sign and send the letter attached as Appendix 3 to the Chair
YES / NO
of the Justice Committee by 26 February 2025;
4.
Indicate in Appendix 1 which of the Justice Committee’s
YES / NO
recommendations you agree to include in the Electoral Matters Bill;
5.
Agree to the proposed classification of the Justice Committee’s
YES / NO
recommendations, set out in Appendix 2;
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6.
Direct officials to draft a Government response and Cabinet paper in
YES / NO
line with your decisions in recommendations 4 and 5;
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7.
Note that if your decisions on policy proposals to include in the
Electoral Matters Bill changes how particular Justice Committee
recommendations have been classified in this briefing, we will reflect
these decisions in the draft Government response.
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Hayley Denoual
Policy Manager, Democracy and Open Government
APPROVED SEEN NOT AGREED
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___________________________________
Hon Paul Goldsmith
Minister of Justice
Date / /
Attachments:
• Appendix 1: Recommendations for inclusion in the Electoral Matters Bill
• Appendix 2: Proposed categorisation of Justice Committee recommendations
• Appendix 3: Draft letter to the Chair of the Justice Committee
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51
Consider clarifying the Electoral Act’s requirements about
23
Currently, political parties can avoid the reporting requirements
✓
straightforward: this is resolving a potential loophole
YES / NO
reporting donations and loans for parties that apply to cancel
set out in the Electoral Act if its registration is cancelled during
and meets the intent of the financial disclosure
their registration.
the reporting period, which reduces transparency and scrutiny.
provisions in the Act.
This recommendation proposes clarifying the rules for parties
✓
necessary: this resolves the risk around parties
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that apply to cancel their registration, and aligns with the intent
avoiding their financial disclosure obligations by
of the financial disclosure provisions in the Electoral Act.
cancelling their registration.
✓
cost: this does not have cost implications for the
Commission.
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others, given the communities most likely to be negatively affected, which could
damage public perceptions of democratic legitimacy.
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Impacts on electoral administration
8.
If the enrolment deadline were 13 days before election day, as proposed, anyone who
enrolled between writ day and the enrolment deadline would still have to cast a special
vote. Closing enrolment at writ day could avoid this situation. However, the impact on
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special votes will depend on voter behaviour. If more people miss the earlier deadline
but still try to vote despite being ineligible, then their special vote will still have to be
processed and disallowed. This means additional efficiency gains are highly uncertain.
9.
Closing enrolment at writ day could shift enrolment processing pressure to an already
busy period. There is limited time (about four days) to process enrolment applications
received by writ day before the electoral rolls need to be printed and distributed to polling
places for advance voting. EasyVote cards, candidate nominations and ballots are all
being finalised around this same time. If there is a peak of enrolment transactions before
the writ day deadline, it may not be possible to process all the enrolment applications
received before printing deadlines. It could also compound pressures and create delays
to other processes.
Australia closes enrolment seven days after writ day, but it also has direct enrolment
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10. S9(2)(f)(ii)
11. Australia closes its electoral rolls seven days after the issue of the writ for federal
elections.2 For the upcoming Australian election, this deadline is 26 days before election
day.
12. However, features of Australia’s system mean it is not a direct comparison for New
Zealand, and there is little merit in us taking a similar approach. For example, as noted
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above at paragraph 9, under our current electoral timeframes the roll closes on writ day,
and there is about four days for any enrolments received before writ day to be processed
before the rolls need to be printed. If enrolment closed seven days after writ day, there
would still be a number of voters enrolling over that period who would not be on the
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printed rolls, and would still have to be issued a special vote. Thus, there is little
administrative advantage to closing the roll seven days after writ day compared with
your proposed approach of 13 days before election day.
13. In addition, Australia introduced a direct enrolment and update programme in 2012. This
programme authorises the Electoral Commissioner to enrol an unenrolled elector or to
update an existing elector’s address using data that has been provided to other
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government agencies. While enrolment remains each individual’s responsibility, this
programme means that many people will be enrolled or have their details updated
without having to take any direct action.
14. Direct enrolment has helped to improve Australia’s enrolment rate, which was 97.8 per
cent as at 31 December 2024. By comparison, the enrolment rate in New Zealand at the
2 Australia’s Joint Standing Committee on Electoral Matters recommended amending electoral law to permit on-
the-day enrolment for federal elections and referendums in its final report on the 2022 federal election. The
Government did not support this recommendation in its response in March 2025, noting it would raise operational
implications for the Australian Electoral Commission.
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2023 General Election was 94.7 per cent – the highest rate since 2008. Enrolment rates
tend to drop between elections. As at 31 March 2025, the enrolment rate in New Zealand
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was 88.93 per cent.
15. While you are proposing to introduce automatic enrolment updates in New Zealand, it
is expected to take more than one electoral cycle to realise the full benefits, as was the
case in Australia. It would also not apply to new enrolments, as Australia’s programme
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does, due to the impacts on the exercise of the Māori electoral option.
Alternative recommendation
16. If Cabinet decides (against this advice) that enrolment should close at writ day, we
propose replacing recommendation 1 in the Cabinet paper with:
•
agree in principle, subject to Budget 2025 funding decisions, to close enrolment
for new enrolments and enrolment updates at writ day.
17. If Cabinet chooses to follow the Australian approach instead, the words “seven days
after” could be inserted into the above recommendation in place of the word ‘at’.
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Annex 1 – Talking points
• Closing enrolment at writ day will have significant impacts on participation, above and
beyond a 13-day enrolment deadline. This proposal may damage trust and confidence in
elections and undermine public perceptions of democratic legitimacy, particularly if some
communities are affected more than others.
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• Setting the enrolment deadline at writ day could put more pressure on the Electoral
Commission at an already busy time. It has limited timeframes to complete enrolment
processing after writ day in order to meet printing deadlines for electoral rolls before the
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discussions
Hon Paul Goldsmith, Minister of Justice
Cabinet, Monday 30 June 2025
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Purpose
1. Part One of this aide memoire provides advice to support discussions at Cabinet on
Monday 30 June on the proposed new treating offence, which prohibits the provision
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of free food, drink, and entertainment within controlled areas around voting places.
2. Part Two provides advice on the timing and the scope of the Bill, in light of advice
from the Office of the Clerk about whether it can proceed as an omnibus bill.
Part One – options for measuring the controlled area in the new offence
S9(2)(f)(ii)
The proposed treating offence as currently drafted
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5. The new offence is proposed to apply within 50 metres of a voting place while voting
is taking place. This area would be measured from the entrance of the area being
used as a voting place if it is in a larger or multi-building premises. This approach
aligns with buffer zones1 around advance voting places, which are also measured
from the entrance of the voting place.
6. In our view, measuring the controlled area from the entrance maintains a clear
connection to the voting place and protects voters from perceived influence as they
approach and enter the voting place.
Measuring the controlled area from the perimeter of a premises
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7. As discussed with you at the officials meeting on 4 June, we do not recommend this
approach for the following reasons.
Operational complexity and connection to the voting place
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8. This approach will make it difficult to have clear and consistent rules that apply at all
voting places. Given the range of venues used as voting places, it may be difficult to
define the boundary of the premises in some situations, for example:
• A university campus that extends across multiple adjacent properties that are not
connected or are separated by roads.
• A mall with a large car park, where it would need to be determined whether the
controlled area is set from the perimeter of the building or the car park.
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• Properties where the boundary for the land on which the building is situated is not
clearly marked.
9. These situations may require the Electoral Commission to exercise discretion about
how the controlled areas are defined on a case-by-case basis. This could risk
creating inconsistencies across voting places, which may lead to confusion about
where the offence applies and criticism if the determinations are considered unfair. It
1 The rules for buffer zones prohibit any advertising and campaigning activities within 10 metres of voting places
during the advance voting period.
Approved by: Hayley Denoual, Policy Manager, Democracy and Open Government
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will also make it difficult for the Electoral Commission to communicate the rules
clearly.
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10. In large premises, there can be other venues within the premises which are not close
to and have no logical connection to the voting place. This will make it difficult for the
public, candidates, and parties to know whether they are in a controlled area.
Large areas are more difficult to effectively monitor and enforce
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11. This approach could result in very large controlled areas at many voting places (for
example, at malls, airports and sports centres). The Electoral Commission will be
responsible for monitoring the controlled areas and receiving complaints about any
breaches of the rules.
12. The larger the area is, the more resources will be required for the Electoral
Commission to effectively monitor it. As noted in the previous section, the layout of
certain venues may create particular challenges for effective monitoring. Large
complexes also tend to have multiple points of entry, which presents a further
monitoring challenge.
13. It is unlikely to be operationally feasible to monitor the entire controlled area at every
voting place. This may mean that election staff have to rely more on complaints
made by the public or parties and candidates, which will rely on understanding of
how and where the offence applies. This may undermine the policy intent to make
the offence more readily enforceable.
Including entire premises may capture ordinary and legitimate activities
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14. The larger the area that the proposed offence covers, the more activity will be
suppressed. The offence prohibits behaviour that is acceptable at other times over 13
days at numerous and high traffic locations. We recommend that the controlled area
maintains a logical connection to the voting place to ensure that the offence only
applies where it is necessary to protect voters from any perceived influence.
15. Measuring the controlled area from the perimeter of the premises is likely to have
consequences beyond the policy intent. One-off events may be captured by the
rules, even if they were planned prior to the voting place being selected, for example:
• a promotional event at a business that hands out free food to draw in customers
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• a school fair where there are games and other entertainment
• a wellbeing event at a university where students are provided free food and drink
during exams
•
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networking events at a community centre where a light snack is provided.
16. The Electoral Commission selects voting places that are accessible, which includes
community hubs where events are frequently held. Many of these events will be
planned prior to voting places being selected, so these rules may either restrict the
venues available to the Electoral Commission or unduly criminalise ordinary
activities.
Comparison to Abortion Safe Areas
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17. S9(2)(f)(ii)
Abortion Safe Areas, which prohibit
certain behaviours related to preventing access to abortion services. These safe
areas can cover up to 150 metres around the perimeter of an abortion service
provider’s premises. However, we do not consider this to be an appropriate
comparison.
18. Abortion Safe Areas are determined on a case-by-case basis on application and
restrict a very limited set of behaviours. Currently fewer than 20 premises have been
designated as Abortion Safe Areas. The penalty for breaching these rules is a fine of
up to $1,000.
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Document 18
19. By comparison, the proposed offence will apply to all voting places and will prohibit
ordinary behaviour that is not necessarily connected to voting or the election. At the
2023 General Election, there were 829 advance voting places and 2,334 election day
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voting places across a diverse range of venues. The proposed penalty for this
offence is a fine of up to $10,000.
Alternatively, the controlled area could be increased to address the concerns raised
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20. If Cabinet is concerned that the controlled area is not large enough to prevent
improper influence near voting places, then the size of the controlled area could be
extended (for example, to 80 metres).
21. We consider this approach is preferable to including the entire premises in the
controlled area. It will maintain a logical connection to voting, in line with the policy
intent, and allow for a clearer and more consistent approach across voting places.
22. We note that the same issues around enforcement and suppressing ordinary activity
noted above will apply the larger the controlled area becomes.
Alternative recommendation
23. If Cabinet decides that the controlled area should be measured from the perimeter of
the premises, we proposed replacing recommendation 3 in the Cabinet paper with:
3.
agree to create an offence to prohibit the provision of free food, drink, and
entertainment that will:
INFORMATION
3.1 only apply in controlled areas within 50 metres of the perimeter of the
premises where the voting place is located while voters may vote;
3.2 be an illegal practice under the Electoral Act 1993 and punishable by a
fine of up to $10,000;
24. If Cabinet decides (in line with this advice) that the controlled area should be
measured from the entrance of the voting place, the number could be adjusted to
make the controlled area bigger. For example, it could be 80 metres, instead of 50
metres.
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3.
agree to create an offence to prohibit the provision of free food, drink, and
entertainment that will:
3.1 only apply in controlled areas within 80 metres of the entrance to voting
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places when voters may vote;
3.2 be an illegal practice under the Electoral Act 1993 and punishable by a
fine of up to $10,000;
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Document 18
Part Two – Timing and scope
Bill timing
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S9(2)(f)(iv)
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Bill scope
27. The Office of the Clerk (OOC) has advised that, in its view, the Bill as currently
drafted does not meet the omnibus bill requirements of SO 267(1)(a), as the single
broad policy is too broad. This is due to the inclusion of changes to section 6 of the
Constitution Act 1986 (to manage the impacts on ministerial tenure of a delay in the
return of the writ).2
Options to bring the bill into compliance with standing orders
28. Option 1: You could write to the House Business Committee seeking agreement to
introduce the Bill as an omnibus bill under SO 267(1)(c).
INFORMATION
• S9(2)(f)(iv)
• The next Business Committee meeting is on
Tuesday 15 July. If the Business
Committee approves the Bill’s introduction as an omnibus bill, it could be introduced
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later that day or the following day.
• If the Business Committee does not approve the Bil ’s introduction as an omnibus bil ,
then the only other option is Option 2.
29. Option 2: The Constitution Act amendment could be placed in a stand-alone bill.
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• This would create two bills - an Electoral Amendment Bill2 and a Constitution
Amendment Bill. It would mean both bills comply with Standing Orders, as each
would only be amending one Act.
• There is also the option for you to seek approval from the Business Committee (on
Tuesday 15 July), or to move a motion in the House once the bills have been
introduced, that they be dealt with as associated bills (SO 274). This would mean that
the bills could be taken as one question for the purpose of debate.
•
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S9(2)(f)(iv)
• Parliamentary Counsel Office has indicated it would need approximately two days to
separate the current Bill into two bills and complete all its pre-introductory editing
checks.
2 The changes to the Electoral Act alone, although covering a number of different areas of electoral law, would be
permitted as a general amendment bill, because the Electoral Act is a single subject area for the purposes of the
Standing Orders.
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Document 18
30. Option 3: The Constitution Act amendment could be introduced via an Amendment
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Paper, and a House resolution passed to extend the select committee’s powers.
•
An Amendment Paper could be introduced at the same time as the Bill is
introduced. You would then be able to lodge a notice of motion for the House to
extend the select committee’s powers to consider the “out-of-scope”
amendments and incorporate them into the Bill.
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•
This would be a debatable motion that would require the use of some House
time (up to 2 hours approx.), However, if a simple majority agrees, it would result
in the amendments being progressed via the Bill.
•
This approach would be similar in effect to the Option 2 of introducing two bills,
and then moving a motion that they are dealt with as associated bills.
31. If you prefer to go straight to Option 2 or Option 3, rather than write to the House
Business Committee (per Option 1), we expect that the Bills/Amendment Paper could
be ready for introduction any time from the week commencing 7 July.
32. In light on the ongoing scope discussions, you may wish to update the recommendations
in the Cabinet paper as follows:
New recommendation to be inserted as recommendation 10:
10.
note that, if necessary to comply with Standing Orders, the Minister of Justice
INFORMATION
will either seek agreement from the House Business Committee for the Bill to
be introduced as an omnibus bill under Standing Order 267(1)(c), or will
introduce the proposed amendment to the Constitution Act via a separate bill
or Amendment Paper;
Update to existing recommendation 10 (renumbered as recommendation 11)
11.
approve the Bill for introduction, subject to recommendation 10 and the final
approval of the government caucus and sufficient support in the House of
Representatives
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Replace existing recommendation 12 (renumbered as recommendation 13)
13.
agree that the Bill be introduced by 21 July 2025;
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Electoral Matters Legislation Amendment Bill: NZBORA
compliance
Hon Paul Goldsmith, Minister of Justice
Cabinet, Monday 30 June 2025
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Purpose
1.
This aide memoire provides advice on the Attorney-General’s report on the
consistency of the Electoral Matters Legislation Amendment Bill (the Bill) with the New
ACT
Zealand Bill of Rights Act 1990 (NZBORA).
2.
You may wish to inform your Cabinet colleagues of this advice when the Bill is
considered at Cabinet.
Background
3.
The Bill was considered at SOU on Wednesday 25 June and has been referred to
Cabinet for further discussion on Monday 30 June S9(2)(f)(ii)
We have provided a separate aide memoire to support that discussion.
4.
Crown Law assessed the Bill for consistency with NZBORA. The Attorney-General’s
report was provided to your office on Friday 27 June.
Three proposals in the Bill appear to be inconsistent with NZBORA
INFORMATION
5.
The Attorney-General has determined that three proposals in the Bill appear to be
inconsistent with NZBORA rights and cannot be justified, as outlined below. The
Attorney-General will present a report in Parliament on these inconsistencies under
section 7 of NZBORA (the section 7 report) when the Bill is introduced. While a section
7 report does not prevent Parliament from passing the Bill, it may attract greater
scrutiny from the media and the public, legal challenges, and reputational risks.
6.
Annex 1 provides talking points for Cabinet, and the section 7 report is attached.
Prisoner voting ban
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7.
The previous blanket disqualification of prisoners in 2010 was subject to a section 7
report on the basis that it was inconsistent with the right to vote affirmed by section 12
of NZBORA. The Supreme Court upheld a High Court decision that the policy was an
unjustified limitation on the right to vote.
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8.
The section 7 report for this Bill takes the same position. It makes similar points that
the blanket ban means that a prisoner’s voting rights are determined more by the
timing and nature of their sentence rather than the seriousness of their offence (
see
paragraphs 12-13 of the report). It also points out an inconsistency between the
approach taken to prisoners and people detained in hospitals and secure facilities, as
voting rights depend on where the person is detained rather than the nature of their
offending. The report notes that these effects are irrational and disproportionate to the
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policy objective of losing voting rights as a consequence of breaching civic
responsibilities.
9.
In addition, the transitional provision for prisoner voting has been found to be
inconsistent with section 25(g) of NZBORA, which relates to the right, if convicted of an
offence in respect of which the penalty has been varied between the commission of
the offence and sentencing, to the benefit of the lesser penalty.
10. The transitional provision in the Bill provides that anyone sentenced to a term of
imprisonment of under three years when the Bill is enacted will remain eligible to vote.
Approved by: Hayley Denoual, Policy Manager, Democracy and Open Government
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IN CONFIDENCE
However, anyone who has committed an offence before the Bill is enacted but is
sentenced after enactment to a sentence of under three years would be subject to a
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higher penalty (i.e., the loss of the right to vote) than would have applied at the time of
the offending.1
11. It may be possible to address this issue by only applying the new rule to anyone who
has been sentenced to a term of imprisonment for an offence committed after the ACT
enactment of the Bill (rather than anyone who is detained under a sentence of
imprisonment after enactment). This change would delay the full implementation of the
ban but would be more rights consistent. However, it would not address the Attorney-
General’s finding that the overall ban is inconsistent with section 12 (the right to vote).
12. As this approach would depend on Corrections determining when the offence was
committed for each new offender, it would be more operationally complex to
administer. We would need to engage with Corrections, the Electoral Commission, and
Court Registrars to understand these operational impacts. If Cabinet is interested in
considering a change along these lines, we could provide further detailed advice and
look to incorporate any amendments into the Bill either as part of the Departmental
Report to the Select Committee or via an Amendment Paper at the Committee of
Whole House.
Enrolment deadline
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13. Closing enrolment 13 days before election day was found to be inconsistent with the
right to vote (section 12). The uncertainty about the extent to which this policy will
improve timeliness was found not to justify the material disenfranchising effect it could
have.
14. The report draws on relevant case law in Australia that has held that where the law
removes an existing opportunity to enrol, it is the effect of the change that should be
considered (i.e., setting the deadline earlier than it currently is) rather than the
consistency of the deadline itself. This means the longstanding policy of allowing
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enrolment up to election day is relevant to judging the proportionality of impacts.
15. The report found that the policy impairs the right more than is necessary, as there may
be alternative measures for addressing the timeliness of the vote count which are less
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rights restrictive. The examples provided were setting a deadline closer to election day
and introducing automatic enrolment updates. Our initial advice considered shorter
deadlines, but any timeframe shorter than 13 days would lessen the timeliness and
efficiency benefits. It would mean that different rules applied during the voting period,
which may be arbitrary and confusing for voters and election staff.
Bribery offence
16. The amended bribery offence was found to be inconsistent with the right to vote
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(section 12) and the right to freedom of expression (section 14). The Bill makes two
changes to the bribery offence:
• It extends the existing offence to include actions intended to inappropriately
influence a person’s enrolment choice. This is the primary policy change.
1 The report notes that the Supreme Court has adopted a wide definition of “penalty” and “punishment” under
NZBORA, which would appear to include the deprivation of the right to vote.
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• It redrafts relevant sections of the existing offence to be more easily understood.
17. While the report notes the importance of the bribery offence in upholding electoral
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integrity, it considers that its drafting is overly broad and may therefore capture
legitimate electoral activities and speech (
see paragraphs 53-54 of the report). This
could have a chilling effect on legitimate activity, particularly given the high penalty.
The report noted that the same issues did not apply to the amendments to the treating
ACT
and undue influence offences, as these are more appropriately defined and bounded.
18. These issues pertain more to the existing bribery offence (which has existed largely in
its current form since the early 1900s and significantly predates NZBORA) rather than
the new policy being implemented.
19. Officials could explore options that could resolve this inconsistency, such as clarifying
that the bribery offence must have an element of corrupt intent to ensure it
differentiates between legitimate and illegitimate activities. As with the prisoner voting
transitional provision discussed above, we could provide further advice to inform
amendments to the Bill at a later stage. However, we note that the issues identified by
Crown Law have arguably existed in the current law and so are not specific to this Bill.
Depending on Cabinet decisions, NZBORA advice may need to be updated
20.
INFORMATION
S9(2)(f)(ii)
the new treating offence, which
would prohibit the provision of free food, drink or entertainment within 50 metres of the
entrance to voting places while voting is taking place.
21. The section 7 report comments that this offence appears to be a justified limit and not
inconsistent with NZBORA, noting its targeted application to a limited spatial area and
time period (
see paragraphs 58-59 of the report).
22. However, if Cabinet decides to expand the offence to cover larger areas, it could
require the advice on NZBORA consistency to be revisited. Any expansion could
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suppress more activities that would otherwise be permissible, including efforts to
encourage people to vote and events that are unrelated to the election. It is possible
that an expanded offence could affect the advice on NZBORA consistency if its
impacts are seen to exceed the policy rationale and unduly restrict the right to vote or
the right to freedom of expression.
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Next steps
23. We seek your direction on whether you are interested in exploring potential solutions
to the inconsistencies relating to the prisoner voting transitional provision and the
bribery offence, as discussed in paragraphs 11-12 and 19. Officials are scheduled to
meet with you on Monday morning ahead of Cabinet and can discuss these issues at
that time.
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24. Once Cabinet has taken final decisions on the Bill, we will update Crown Law if
necessary on any changes to the new treating offence. Typically, a section 7 report
would not be amended once it has been signed off, although the Attorney-General
may write to the relevant Select Committee if changes are subsequently made in
response to issues raised in the section 7 report. However, if there are substantive
changes to relevant policies before introduction, we can engage with Crown Law on
whether the section 7 report should be amended or an addendum provided.
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IN CONFIDENCE
Annex 1 – Talking points
• The Attorney-General has determined that three proposals in the Bill appear to be
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inconsistent with NZBORA and not justified:
o
Prisoner voting is not consistent with the right to vote (section 12) or the right to benefit
from the lesser penalty if the penalty for an offence is varied between the commission
ACT
of the offence and sentencing (section 25(g)).
o
Closing enrolment earlier is not consistent with the right to vote (section 12) due to the
impacts on voter participation.
o
The amended bribery offence is not consistent with the right to vote (section 12) or the
right to freedom of expression (section 14) as its application was found to be overly
broad. This pertains more to the existing offence than the policy change made by this
Bill.
• If Cabinet is interested, then officials may be able to explore potential solutions to resolve
some of the inconsistencies relating to prisoner voting and the bribery offence.
Amendments could be made to the Bill at Select Committee or Committee of the Whole
House.
INFORMATION
• If Cabinet decides to expand the application of the proposed treating offence, then the
advice on NZBORA consistency may need to be retested before introduction.
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